Sunday, February 25, 2018

The Americans with Disabilities ACT (ADA) and Food Allergies - Cleveland Enters the Arena

Reasonableness is like pornography - hard to define, but we know it when we see it.  (with a nod toward U.S. Supreme Court Justice Potter Stewart.)

It’s interesting how folks classify themselves on the political spectrum.  Most individuals regard themselves as moderate, independent and reasonable, regardless of their views and positions.  Try asking an extremely  partisan political conservative how he classifies himself and you will hear terms such as ‘family values’, ‘mainstream’ and ‘pro American’.   A politician on the far left is more likely to describe himself as ‘Progressive’, rather than as a 'liberal fanatic'.

The point is that unreasonable people believe that they are reasonable.

I read an account of an episode that occurred last week in Cleveland that hinged upon the legal meaning of the word reasonable.   A 16-year-old boy with various allergies joined several friends at an expensive restaurant.  Without providing advance notice to the restaurant, the young man started opening his own food that he had brought with him so that he might safely dine with his friends. The restaurant levied a $15 plating fee, which apparently is their policy and compensates them for the economic loss from a BYOF (Bring Your Own Food) patron.

The agiitated child texted his parents from the table which sparked a crescendo of anger and chaos.  Lawyers became involved in the contretemps, always a sign that tranquility is just around the corner.  Accusations of discrimination were hurled against the restaurant, who ultimately decided to waive the fee as a courtesy.  Everyone involved had a negative experience.  

In my view, all parties fumbled clumsily and repeatedly.  This dispute is similar to the childhood squabbles that we parents have resolved thousands of times in our kitchens and backyards.  Of course, the kid’s parents (or the kid) should have called in advance so the restaurant could be prepared and could also communicate and discuss its BYOF policy, which during this calm converation, might have been waived.  Surely, a phone call between two reasonable people could have resolved this riddle wrapped in a mystery inside an enigma.  (with a nod toward Prime Minister Winston Churchill.)  And, of course, the restaurant might have used a softer touch rather than light a fuse.


All Could Have Been Avoided With a Simple, Old-fashioned Phone Call


The Americans with Disabilities Act (ADA) requires an establishment to make a ‘reasonable’ accommodation to disabled patrons, visitors and clients.  We all support this law which has helped to emancipate and mainstream disabled Americans and others.   A reasonable accommodation does not mean any accommodation, however. 

The ADA would classify a serious allergic reaction as a disability.  Would the law require a restaurant to permit an allergic patron to bring in his own food?  Would a plating fee be permitted or might this be regarded as a discriminatory violation?  What if several diners with allergies came each day packing their own lunch boxes?  Would this be areasonable accomodation from the restaurant's point of view?   Could lactose intolerance or gluten sensitivity be claimed as disabilities?  (Don’t dismiss this possibility of DMC - Disability Mission Creep.  Recall, that a woman recently tried to board an airplane with her comfort hamster to keep her calm!)

I reached out to Mary Vargas, a Washington, D.C. lawyer, who was quoted in the newspaper article, and I am grateful for her patient explanation of some of the relevant legal points.  If there are any legal errors in my analysis in this post, they are mine, not Mary's. While attorneys perform a critical societal role, I suspect that Mary would agree that this issue should have been easily solved internally In a manner that would have satisfied all parties.

It’s not easy to screw up a situation where everyone should have emerged a winner.  But when you season a situation with anger and entitlement, be prepared to take cover.   

How would you have handled this situation if you were the restaurant?  What if you were the kid?  All reasonable responses welcome.

Sunday, February 18, 2018

Overuse of Colonoscopy - Scoping out the Reasons

In our practice we have an open endoscopy system, as do most gastroenterologists. This means that other physicians – or patients themselves – can schedule a procedure with us without seeing us in advance for a consultation.  Of course, we are always pleased to see any of these patients for an office visit in advance, but many patients prefer the convenience of accomplishing the mission in one stop.  This is reasonable for patients who truly need our technical skill more than our medical advice.

Our office screens these procedure requests in advance to verify that no office visit is necessary.  While this process works very well, it is not infallible.  There have been times when a patient arrives to our office poised for a colonoscopy with accompanying medical issues more complex than we had expected.

No vetting procedure is failsafe.  Have you seen the TSA statistics when they are tested in identifying dangerous items hidden in luggage?  Even though our trained personnel vet the procedure candidates, no process can capture every issue.  Also, sometimes patients forget about a medical condition or risk factor or medication, even when questioned about them. 

In addition, there have been occasions when patients arrive prepared for an endoscopic intrusion into their alimentary canal, when the procedure may not be truly indicated.  Keep in mind that the timing of a medical test often depends upon medical judgement.  For example, capable gastroenterologists may have differing opinions on whether a colonoscopy for a particular patient makes sense.


Colonoscopy - It's Alimentary!

Recently, a patient whom I had never met arrived for me to do a colonoscopy.   He had enthusiastically swallowed the liquid dynamite which had the desired cleansing effect.  I presume he took a day off of work and had a driver with him.   My review of his records demonstrated that he was about 2 years too soon for this procedure.  The reason he scheduled the exam is because his prior gastroenterologist’s office sent him a computer-generated letter that he was due for a colonic violation.  In other words, the patient was following his doctor’s advice.  

I speculate that the reason that the computer issued a Notice to Appear was that the prior gastroenterologist experienced a ‘click malfunction’ and clicked Return in 3 Years by error, rather than have correctly requested a Return in 5 Year recall.  While this may sound egregious, ask your doctor how many screw ups he has committed on electronic medical record (EMR) systems.   Indeed, EMR has created a new niche for medical malpractice attorneys to sue physicians and hospitals.

So, I have a patient before me who endured a night of purging, who has missed work and has a driver with him.  But, he is 2 years early.  What should I do?

Sunday, February 11, 2018

Why Did CMS Contact My Office? Medicare Fraud?


In our society, there are absurdities that simply defy reason.  In the past week or so, I have read about an individual who was denied the ‘right’ to bring a peacock on board a plane for comfort.  Just this morning, I read of a women who was cruelly denied to fly with her comfort animal – a hamster.  Readers are invited, if they dare, to use their preferred search engine to discover the tragic denouement regarding this hapless hamster.


'Let me comfort you.' *


If a person needs a peacock, a snake, a pig, a kangaroo or a pterodactyl for airborne support and comfort, then perhaps flying is not for you.  The rest of us have some rights also.  Rent a car.
The medical world has its own exhibits in the Theater of the Absurd.  Here’s our latest performance.
Our medical practice received notice last week from The Centers for Medicare & Medicaid (CMS) that we owed the federal government money.  Apparently, according to federal brain trusts, we had billed a patient under Medicare when we were not entitled to do so.   I’ll let readers choose from the following explanations for the government’s accusation.
  • A random audit demonstrated that we had never seen the patient.
  • The patient was dead at the time we claimed we had treated him.
  • A whistleblower (love that term!) had contacted CMS regarding our fraudulent billing practices.
  • CMS routinely sends out letters like this knowing that some medical practices will simply pay on demand rather than take on the Mother of All Bureaucracies and risk an audit of their billings over the past century.
  • There was an unconscionable error in our electronic claims submission to CMS.   We used the abbreviation Ave. in the patient’s street address in direct violation of CMS policy that dictates that acceptable abbreviations for streets include Dr., Blvd., and Rd, but that Avenue must be spelled out.
Have you made your choice?  I’ll be you are incorrect.  Sure, you may have accumulated a decent measure of knowledge and wisdom in your life, but this is no match against the brainiac feds.  They asserted that we were wrongly paid for medical services because when we claimed to have seen the patient he was already stone cold dead. 

While actual facts support that the patient was quite alive on the encounter date, try explaining that to a federal bureaucrat who believes otherwise.  The patient did, in fact, pass away a couple of weeks ago, months after we saw him.   However, when his death certificate was prepared, the incorrect year of 2017 was inserted instead of the correct year.  The scientific term for this event is call a typographical error.  The government now believed that this patient entered the hereafter a year ago.  Therefore, all social security and Medicare payments made on his behalf last year must be returned to the government.  We should support such fiscal responsibility by our government knowing how wisely they spend our money.

Of course, this will all get straightened out by his poor family, who are still mourning his loss.  They will have fun with lots of phone calls, long wait times, maddening phone menus, letters, forms and maybe even an attorney.  The whole affair has stressed me out.  Where’s my hamster?




Sunday, February 4, 2018

Top CEOs Aim to Disrupt Health Care Market.

Since the infamous memo released this week by the chairman of the House Intelligence Committee has taken up so much oxygen, other newsworthy events were relegated to a lower priority by the media.  In my view, many of these second tier issues deserve Page 1 coverage, but our media in general has decided that potential or actual scandal must lead their coverage. 

Can anyone defend, for example, the prominent and repeated coverage that Stormy Daniels has received?   If CNN received a lurid videotape of Stormy and the president on the same day that North Korea declared that it wanted to denuclearize their country, which would be the lead story?  The editors would be agonizing!


Tell the truth, would your rather be reading about Stormy?*

A bombshell announcement in health care came this week when when 3 titanic corporations stated they aimed to reform health care coverage from within.  Amazon, JPMorgan Chase and Berkshire Hathaway will combine their resources, ingenuity and mammoth leverage to bend the cost and quality curves in opposite directions.  While this will undoubtedly be good news for their million or so employees, will it be good news for the rest of us?  Hard to say.

Amazon inspires a range of emotions in businesses and individuals across the nation.  Their economic triumph is iconic, but this success has had great costs for businesses and individuals across the country.  Have you seen many small hardware stores, book shops, music shops, clothing retailers or any of the small businesses that used to be dotted across the land?   If you want a closer glimpse of the culture of working at Amazon, I suggest that readers view the 2014 documentary Amazon Rising, or peruse a 2017 book called Nomadland, by Jessica Bruder, which chronicles what life is like inside Amazon’s walls.
Just today, I read about an Amazon patent that can track workers' location and even what they are doing with their hands, unwelcome technology for workers who have nasty habits.

I have no doubt that these companies can fashion a health care system that would correct many of the health care system’s deficiencies at large.  Here’s why.
  • They have unlimited cash
  • They are aiming to provide coverage to employed people, and do not need to address the uninsured or unemployed.
  • They have stratospheric expertise in finance and technology.
  • They can exert enormous leverage over insurance companies, hospitals and the pharmaceutical companies. 
  • If they can track where an employee’s hands are, imagine how they can track health care expenditures and outcomes and have incentives in place.
  • They are large and rich enough that they could self-insure their employees, which would whittle away administrative costs. 
What is less clear, is what the effects of this disruption would be to the health care system at large.   Would hospitals and insurance companies and drug companies who are excluded survive?  Would medical costs on the rest of us be raised in order to offset the Trio’s discounts?   Is their true intent, despite their denials, to become a profit center for medical care in the United States?  

I thank readers who have made it this far.  Those who didn’t likely clicked off in search of a morsel on Stormy.  I'm sure that Amazon is tracking them.

*Photo credit:  Glenn Francis
Attribution :  © Glenn Francis, www.PacificProDigital.com


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