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VII. ANTI-COMPETITION PROTECTIONS We received a copy of the NHIC Medicare contract, which was heavily redacted. It is therefore impossible for the American public to see if the contract is in compliance, as much as is possible, with Federal law including anti-competition protections. Timothy J. Muris, Chairman of the Federal Trade Commission from 2001 - 2004 states that sovereign immunity from anti-competition needs to be exceptional: ‘In the twenty years since the Supreme Court affirmed the FTC's jurisdiction over health care professionals in the American Medical Association case, the FTC has worked to enable new and more efficient arrangements for delivering and financing health care services by challenging artificial barriers to competition among health care providers.’ ‘As a general matter, immunity from the antitrust laws is exceptional and disfavored. The antitrust laws, "a comprehensive charter of economic liberty aimed at preserving free and unfettered competition," rest on the premise that "the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions.’ ‘Proponents of antitrust immunity frequently claim a need for special treatment because firms engaged in a particular industry or activity need to collaborate on matters that have special value or importance to our economy, national security, or other societal interests. They assert that the antitrust laws will impose burdensome compliance obligations or chill beneficial activity. They also frequently claim that an exemption would only clarify that the conduct, which is already permissible, does not violate the antitrust laws. They therefore assert that the situation warrants special treatment. We do not believe these reasons provide a sound basis for an antitrust exemption. Antitrust analysis today is highly capable of distinguishing harmful and unreasonable conduct from conduct that has a legitimate justification, and can therefore accommodate any legitimate needs for competitor collaboration.’ 'Further, case precedents, interpretive Guidelines, and advisory opinions from the FTC and the DOJ, along with advice from antitrust counsel, can enable firms to make well-informed judgments about whether a proposed activity will present antitrust risks. Therefore, antitrust exemptions generally are not necessary." July 24, 2003, Statement of Timothy J. Muris Chairman, Anti-competitive Actions of NHIC 1. Bruce Quinn, M.D., Ph. D., M.B.A., simply refused advice from our US Department of Justice ATR attorney. Why? Instead Dr. Quinn, knowing this is an orphan class of patient, told him that we would have to show "widespread acceptance like the chiropractors" and do a national coverage determination. This is equivalent to saying: "Bring me the ruby slippers." 2. NHIC fails to recognize that our nation is a nation of laws, not medical articles. It fails to recognize any merit to the decisions of Region IX Appeals Retired Judge Stanley Sadur and current Regional Chief Administrative Law Judge Arthur Cahn, who based their decisions on Federal law in favorable decisions to our patient group. 3. The Medicare beneficiaries have no other insurance options other than Medicare. Many of these patients have no outside resources except their social security disability payments. It is cruel to demand that octogenarians wait over four years for resolution in this case and now be sent to individual beneficiary appeals which historically have lasted our patients six years before they received their favorable decisions. 4. Minority-opinion allergy-immunology patients are forced by EDS - NHIC to wait 1.5 to 6 years for even one decision so that therapy can be started. No other contractor had this LCD, they only restricted reimbursement for multiple sclerosis patients which was appropriate. 5. Transfer factor is an orphan biological that has been in the medical literature for 60 years. It can't be patented. So there can be no major pharmaceutical or other corporate interest to sponsor legislation to protect this orphan biological for this orphan disease, as would sponsor a new pharmaceutical, device or test for a NCD. Majority-opinion allergist-immunologists have high-end PACS and a very close financial relationship with high-end pharmaceutical companies and genetic biotech companies with high-end PACS. Their interests are clearly promoted by Dr. Quinn. But minority-opinion allergist-immunologists are told by EDS - NHIC doctors to form a PAC and buy their codes, when EDS - NHIC knows this is impossible and illegal to demand. 6. Majority-allergist reimbursement relies on different HCFA codes. Reimbursement for majority-allergists is aggressively lobbied by two professional organizations: The American College of Allergy, Asthma and Immunology and the American Academy of Allergy and Immunology. EDS - NHIC's position, if left to stand, negligently or intentionally confers monopoly status to the majority-opinion allergist-immunologists. There is no protection for minority opinion allergists to survive. 7. Majority-opinion allergists can be guaranteed reimbursement. If minority-opinion allergists bill Medicare and are paid, they risk having to repay Medicare all fees at 13% interest with additional monetary penalties that were designed to stop fraud and abuse not minority medical care. 8. Other excellent California minority-opinion allergist-immunologists have opted out to early retirement or second career changes lest they be demeaned and economically harmed by the Medicare contractor in this way. It will preclude the entrance of new physicians into minority-opinion allergy-immunology. 9. Majority-opinion allergists can be paid within two weeks by direct deposit from Medicare. Minority-opinion allergists, to survive, would have to have all Medicare patients pay at the time of service. Then the patient is reimbursed as long as 6 years later, like Ella Balogh, after the patient is forced to file all the paperwork and eventually has travel to hearing and prepare a legal case. The reason these patients have qualified for SSI and Medicare is because they can't survive. Private insurances won't sell them a policy because they are too sick and poor. They can't work to qualify for an employer group health policy. Some of these patients are very elderly with catastrophic medical problems and won't even be alive to be reimbursed. 10. Private medical practice is clinical medicine. . .not academic, research or forensic medicine. Majority-opinion allergists don't have to order extra diagnostic tests or get additional physician consults to secure reimbursement. NHIC demands that minority-opinion allergist-immunologists would no longer be able to practice cost-effective clinical medicine. Instead they'd be forced to cause unnecessary medical expense to patients and the government to meet forensic medical criteria as all their cases will go before the ALJ. This could double or triple the cost of care for the minority-opinion allergy patient. 11. All new patients will have to wait up to six years to see a minority-opinion allergist-immunologist. And to do so they would have to pay for at least a minimum service so it can be rejected while the Medicare physician provider is subject to civil penalties and they then try to navigate the Medicare appeals at a snail's pace. Alternatively, they can see the majority-opinion allergist immediately when they really need care and have a right to be seen. The problem here is that almost all these patients have already gone that route and failed majority-opinion allergy-immunology care. 12. Patients on social security disability who wish to get well and return to work are obstructed from care for up to six years while they receive social security payments instead of being taxpayers. This causes undue economic hardship on the patient and taxpayer. 13. Costs of care from minority-opinion allergists would have to include legal expenses while the cost of care from a majority-opinion allergist wouldn't have to include these legal expenses. This would unequivocally place the minority-allergist's costs way beyond any reimbursement they could possibly receive under the current Medicare cost containment structure where HCFA caps the allowed charge based on codes. This unfairly impinges upon the economic viability of all minority-opinion allergist-immunologists. 14. Minority-opinion allergy-immunology patients have always prevailed in appropriate reimbursement for the transfer factor when the issue has come to insurance appeal, small claims or State court. NHIC is hiding behind the Medicare individual beneficiary appeals process to successfully deny care for minority-opinion allergy patients through a war of attrition. This coercive power of a government contractor forces undue administrative burdens and costs on our patients. The NHIC is misusing the Medicare appeals process as an effective way to delay or stifle competition. 15 It is one thing to require an individual patient to go to the ALJ to establish his opinion. It is quite another to demand that ALL our Medicare patients have to go to the ALJ and open up their medical records to public inspection. Mrs. Slocum and Mrs. Balogh are not returning to the workplace. They don't mind that their cases are now public record. But for our SSI-Medicare patients that can get well and return to the workplace, this type of unwarranted exposure of their entire medical history can then be used by private insurance companies to reject them from life insurance, disability insurance etc. That alone is an unwarranted and punitive burden that will deter patients from wanting to even start medical care with a minority-opinion allergist-immunologist. 16. There are normal and emergency disruptions that occur regularly when treating sick patients. There is now the additional NHIC burden that forces a minority-opinion allergist-immunologist to disrupt and divert their attentions during their work day away from their primary duty to patients' medical care, continuing medical education, and staying abreast of the medical literature. This results in enormous unreserved costs and pressures that unfairly limit minority-opinion allergist-immunologists in the course of their normal activities such that they have been and will continue to be driven out of business. 17. Dr. Sokol, a majority-opinion allergist tried to stop the use of transfer factor in my patients in 1990. He falsified facts in the "normative medical literature" to render an adverse expert opinion to the California Medical Board. The CMB dismissed his falsified written opinion as having no merit based on the medical literature. This is exactly the same literature that was presented to NHIC. The supportive medical literature has only expanded since that time. 18. The California Medical Board (CMB) has already done a careful site inspection and has reviewed all the transfer factor immunomodulatory therapy referenced medical literature. The CMB has no political agenda. The CMB demands very good minority-opinion medical care. . .as it equally demands very good majority-opinion allergy care. The antitrust laws rest on a foundation that competition forces excellence over mediocrity. We need the DOJ to stand beside the CMB and demand excellence in medical care without regard to whether it represents majority or minority opinion. If NHIC isn't stopped the opposite will happen. 19. NHIC wordsmiths and uses "normative medical literature" as if (s)he is in the judiciary. NHIC is fencing out minority-opinion allergy-immunology care. 20. Legally peer review requires that the reviewer be experienced in the medical subspecialty and have experience with those patients and therapeutic modalities and preferably published. The LCD appeals process requires a similar qualification. NHIC has not used appropriately qualified consultants. The consultant is trained in legalese to try to obstruct appropriate medical reimbursement to a minority-opinion allergist while paying for majority-opinion allergist care because he finds that to be within the "normative medical literature." The consultant made no attempt to consult our peer-review environmental physicians, Drs Levin, Rea and Ross who are among the most highly respected and credentialed physicians in the US. Dr. Levin was a member of the California Medical Board. 21. Patients in a regional consultative allergy-immunology practice come from all over California. They generally failed to be properly diagnosed and/or failed all other therapies. They require more time. They require more allergy tests. They require blood products instead of inexpensive drugs like steroids. Yet NHIC demands that payment be matched by an algorithm with ALL severity of allergy patients in a local allergy practice. 22. The patient records alone reveal that these are not typical patients who see their local allergists. NHIC uses these statistics to justify that the care for the sickest patients shouldn't be reimbursed. In their misguided approach to statistical analysis, they see the statistics for the sickest patients as overuse of the system by a provider they would prefer to marginalize. These cases reveal patients who need more services because they are sicker. NHIC has turned the competition upside down on its head. 23. No physician can spend over four years, as we have, without timely, appropriate and proportionate legal remedy against a Medicare contractor like this. 24. We paid Timothy Blanchard, Esq., Partner, McDermott, Will & Emery, to consult on this case. He has lectured, published, and testified before Congress on the extreme problems created by the amount of what he calls: "secret" law that CMS and its contractors rely on to make decisions and the abuse of medical necessity as a gatekeeper to inappropriately reduce payments and satisfy contractor contract incentives. Mr. Blanchard. He confirmed this was a "classic case of abuse of medical necessity by the contractor." He advised that we absolutely had to get oversight through the patients' elected representatives to survive the contractor "dirty tricks" know only to insiders. 25. We paid law professor, Jonathan Schumann, a former Medicare Part B attorney to consult in this case. Mr. Schumann affirmed the "dirty tricks" Mr. Blanchard spoke about and that he has first-hand knowledge that minority-opinion allergist-immunologists are purposefully inappropriately targeted in this way. 26. In early December 2004, Jonathan Schuman told our US Department of Justice attorney that he was prepared to present the roadmap on how this contractor malfeasance works. He required immunity with the Florida Bar first, because the roadmap of contractor malfeasance derives from client-related work. Under the rule of reason, the pro-competitive and anticompetitive effects of these NHIC activity is an unreasonable restraint. There is no special circumstance here where NHIC sovereign immunity could be construed to allow for this anti-competition.
ALL FILINGS IN THIS CASE: Medicare Patients File Second Amended Complaint Against EDS & NHIC 07-09-07 Medicare Patients File Federal Lawsuit Against EDS & NHIC 01-03-07 Interrogatories for Bruce Quinn, MD NHIC Medicare Medical Director 04-09-07 Interrogatories for Charity Horton NHIC Hearing Officer 04-09-07 Complaint against NHIC National Heritage Insurance Company Medicare Hearing Office 04-02-07 Production of documents from Medicare, Bruce Quinn MD and Michael H Jordan 03-28-07
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