Profession

Doctor says search of office too intrusive

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted Aug. 8, 2005.

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Government inspectors have the right to look at a physician's records if they suspect the doctor is committing fraud. But just how far is the government allowed to go if they come knocking on your door based on a tip from one of your employees?

Can they scan through records? Interview employees? Videotape exam rooms and refrigerators used to store medicine? Look at records from patients who aren't part of either the Medicare or Medicaid program?

Doctors don't dispute the government's interest in weeding out those who overbill Medicare and Medicaid. But one Tennessee physician says government agents went too far in a search of her office when they arrived unannounced in January 2002.

Internist and oncologist Young Moon, MD, is challenging the search in a federal court through a motion to suppress evidence the government collected in the case it has filed against her.

A grand jury indicted the physician, accusing her of fraudulently billing government programs for pharmaceuticals to treat cancer patients. Dr. Moon has pleaded not guilty.

Her motion asks a judge to decide whether federal and state agents went beyond their authority under Medicare and Medicaid regulations.

The American Medical Association/State Medical Societies Litigation Center and the Tennessee Medical Assn. filed a friend-of-the-court brief on behalf of Dr. Moon, asking the federal judge to suppress evidence that investigators collected.

It's an important case for physicians because experts say it could establish some boundaries for government searches of physicians' offices. Yarnell Beatty, general counsel for the TMA, said if the case "comes down on the side of Dr. Moon, I would think that other states would have to look at their procedures."

The case comes at a time when physicians anecdotally say they are seeing the government become more aggressive in this area.

According to court records, Tennessee Bureau of Investigation and the Dept. of Health and Human Services Office of Inspector General agents showed up at Dr. Moon's door after a "front desk" employee at her practice told officials that she suspected the physician was overbilling for some medications.

A plan from the Tennessee Bureau of Investigation shows the primary goal that day was to "scan TennCare, Medicaid and Medicare patient records."

The secondary goal was to "interview Dr. Moon and all of her employees," court records indicate.

But Dr. Moon, along with the AMA and TMA, say that the search, which started at 9:30 a.m. and lasted until about 6:15 p.m. on a day when the physician was treating patients, went well beyond those goals.

Nine agents searched Dr. Moon's office, which had about as many rooms. In addition to searching the rooms, they videotaped many of them -- the break room, a private bathroom with a shower, a patient bathroom and examination and treatment rooms. Dr. Moon says she never consented to agents videotaping areas of her office.

Agents searched Dr. Moon's billing room, receptionist area, medical records room, chemotherapy lab and several storage and supply facilities. They also took some photographs, court records show.

One investigator's notes indicated that she and another agent "intruded on Dr. Moon's examination of a patient in the treatment room," the AMA and TMA brief states. Agents rummaged through storage and supply facilities, looking inside two refrigeration units and a medicine closet and cataloging their contents in detail. The agents did not suggest that the items were related to the treatment of Medicare or Medicaid patients or were pertinent to Dr. Moon's billing statements," according to the AMA and TMA.

Court records show that investigators also requested logs, books and invoices of patient billing procedures without distinguishing "between information pertaining to Medicare and Medicaid patients and those pertaining to other patients."

Dr. Moon and organized medicine argue that the physician never authorized the search and that information wrongly collected without a court order should not be allowed to be used in court.

They say the Medicaid Act and its regulations require physicians to consent to handing over certain records and payment information. But they say the government doesn't have the right to barge into a physician's office the way it did in Dr. Moon's case.

Nothing even suggests that agents are allowed to "enter their offices unannounced, interview employees, disrupt patient examinations, videotape the entire premises while patients are present for treatment or obtain information pertaining to non-Medicare and Medicaid patients," AMA and TMA argue in their brief filed in the U.S. District Court for the Middle District of Tennessee, Nashville Division. And they say the search of non-Medicare and Medicaid patient records violated the privacy rights of patients who weren't part of government health care programs.

"The importance of patient privacy is not a mere construct of the medical profession," the AMA and TMA argue. "The government's search of Dr. Moon's office violated the Health Insurance Portability and Accountability Act of 1996 and various Tennessee patient privacy laws."

The government disagrees with organized medicine's interpretation of the law. The U.S. Attorney's office argues that HIPAA doesn't apply when HHS or another health oversight agency is gathering information. The law, the government says in court documents, "explicitly allows covered entities like [Dr.] Moon to disclose otherwise protected health information to health oversight agencies for oversight activities authorized by law, such as inspections."

And on the issue of inspection, the government said the Federal Register states that if there's concern about whether a physician is complying with the law, the government can obtain information "in several ways, including the performance of an on-site survey." Consequently, the government argues it didn't need a warrant for the search to be legal.

The government further defends the legality of the search by saying that "scanning Medicare and TennCare patient records, touring the office to determine if medical supplies and medication billed to the Medicare and TennCare programs were present, and taking an inventory of the medication present in the office were all pertinent to determining if [Dr.] Moon was really providing all of these services and medications for which she was billing Medicare and TennCare."

Up to the court

In a hearing this summer before a U.S. Circuit Court judge for the Middle District of Tennessee, the government said it only wanted to use three items it obtained during the January 2002 search: Dr. Moon's statements during her interview and two patient files scanned that day.

The judge ruled the government could use all three, saying Dr. Moon consented to the document scans and to being interviewed. But at press time, the judge had not issued a ruling on the other evidence, particularly the videotaping. A hearing on that issue was scheduled for this month.

Doctors hope the judge will find that the government agents went beyond what is reasonable and allowed under law.

"When a doctor agrees to an investigation, what are they agreeing to: an orderly search or nine agents coming in?" said Robert W. Ritchie, an attorney for Dr. Moon.

"We would hope that the court would recognize that what the doctor is agreeing to with Medicare and Medicaid carriers is not what happened in Dr. Moon's office."

"In the Courts" by Albert received two awards in 2004 recognizing the excellence of this monthly column examining medicolegal issues. The column received the Silver Award, Best Regular Column, Staff-Written, from the American Society of Healthcare Publication Editors and the Bronze Award, Best Regular Column, Staff-Written, from the American Society of Business Publication Editors, Midwest Region.

Tanya Albert amednews correspondent—

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