CAMLAW: Complementary and Alternative Medicine Law Blog

A place for spirituality in health care

Health care fraud affects the little guy - there is a place for spirituality in health care, but it has to be balanced, and people who provide these services must be psychologically mature and personally whole, as well as intuitively gifted.

 

Michael H. Cohen

www.michaelhcohen.com

(949) 209-8962

Q&A for Filming–Fraud in Health Care

1.         Typically, when we read in the media about “health care fraud,” we tend to think of the government pursuing health care entities and providers for things such as cheating Medicare. Does health care fraud affect the ordinary consumer directly?

The average consumer gets hurt, or scammed, by people they trust who give them wrong information and it turns out to be dangerous.

For example, suppose someone has a headache and they go to their trusted psychic advisor or healer who says they are thinking too much. It turns out that person has a brain tumor and needed an MRI.

The Federation of State Medical Boards, which sets rules for medical boards across the country, says there are three types of harm that patients suffer:

·         Direct harm – a treatment directly hurts the patient.

·         Indirect harm – the patient gets diverted from necessary treatment, or delayed

·         Economic harm – patients lose money.

2.         What laws protect consumers?

There are actually several different areas of law that protect consumers against scammers.

·         First, laws addressing fraud itself.

o   Laws prohibiting fraud and subjecting those who commit it to civil liability

o   Laws prohibiting false and deceptive advertising

o   Laws prohibiting unfair business practices

o   Other consumer protection laws

·         Second, laws relating to health care licensure.

o   Licensing requirements for major health care professions

o   Scope of practice rules which limit what non-MD professionals can do

·         Third, legal rules governing malpractice.

3.         If someone feels they have been scammed regarding their health, what should they do?

Contact an attorney. Sometimes there is legal action the person can take, such as a lawsuit. In other cases there may be a government investigation or enforcement action but the activity is criminal or a regulatory violation and the person can be a witness, but there is no recovery.

The best thing is to avoid getting scammed altogether. Don’t ever buy under pressure, and thoroughly research the product, service, and provider before buying.

4.         What are the major areas where people are getting hurt or where the government is focused on helping the little guy?

Weight loss advertising. Right now the Federal Trade Commission (FTC) is very active dealing with weight-loss advertising. We have an obesity epidemic in this country and people are desperate. Weight loss is a multi-billion dollar industry ($35 billion in 2000—sales of books, videos, tapes, low-calorie foods and drinks, sugar substitutes, meal replacements, prescriptions and OTC drugs, dietary supplements, medical treatments, other products and services).

There are a lot of unproven therapies out there and companies are making false and misleading claims.

The FTC “red flags” claims that are “too good to be true.” Major ones include:

·         Promises of immediate success without the need to reduce calories or increase physical activity.

·         Before/after photos showing huge results

·         Rapid weight-loss claims that are unrealistic: “I lost 100 lbs. in 30 days!”

·         Claims that weight loss is permanent: “take it off and keep it off”

·         “Clinically proven/doctor approved”

The FTC calls this, “a never-ending quest for easy solutions.” 

Medical identity theft. This is when someone steals your personal information and uses it to bilk insurers or even get treatment!

The FTC “Dirty Dozen—12 Scams Most Likely to Arrive Via Bulk Email”:

·         Business opportunities

·         Bulk email

·         Chain letters

·         Work-at-home schemes

·         Health and diet scams

·         Effortless income

·         Free goods

·         Investment opportunities

·         Cable descrambler kits (free cable)

·         Guaranteed loans or credit

·         Credit repair

·         Vacation prize promotions

The FTC urges “a healthy dose of skepticism” in reading ads.

5.         What is your background and how did you get interested in this field?

I started my career as a Wall Street lawyer. Then I became interested in holistic health.

Eventually I landed as a lawyer on the faculty of Harvard Medical School. My mission was to help the Harvard hospitals responsibly integrate conventional medicine with complementary and alternative therapies that were proven effective.

Now I run my own law firm, focusing on business and health care law.

6.         What kinds of clients have you represented who have been victims of health care fraud?

People get scammed when they are very vulnerable.

I have had several clients who went to psychics and healers and were given crazy predictions, and then all sorts of potions and products they didn’t need. 

One person was damaged by a chiropractor. This was an elderly patient who was too frail for an adjustment.

Another was patient who died in a day spa that did not follow basic safety procedures.

Although many patients benefit from alternative therapies, there are some who have been victims of false promises and were lured into dangerous situations.

7.         How do you advise companies to steer clear of health care fraud?

You have to evaluate a business model very carefully. The advice depends on the client and their plan.

Some entrepreneurs want to bring out new dietary supplements. For example, one client wanted to create supplements to support people with cancer. The key legal issue here is looking at the labeling to be sure no medical claims are made. You can only make certain limited claims known as “structure-function” claims.

8.         What about people who go to see so-called gurus and get defrauded? Are there any famous cases involving health care fraud and spirituality?

Yes, I wrote about one such case in a chapter called Sex, Scandal, and Spirituality in my 2000 book, Beyond Complementary Medicine. There was a Massachusetts case involving a yoga guru who allegedly had sexual relations with his “disciples.” (Dushkin v. Desai). The complaint alleged that the “resident guru” professed celibacy and “commitment t a non-material, physically and financial simple lifestyle.” Plaintiffs claimed, however, that he cultivated an “intense emotional dependence” in his followers but defrauded them of money and possessions. They sued him for breach of contract and other claims, including fraud.

9.         Your most recent book is called Healing at the Borderland of Medicine and Religion. You wrote this while you had a fellowship at Harvard Divinity School. Talk about fraud and abuse in spirituality.

Well the most obvious level is all the sexual abuse we have seen by people in positions of religious authority. Spirituality is a beautiful thing, but people get dependent on those who claim to have spiritual insight or authority over them.

In Healing at the Borderland, I address spiritual healing and spiritual abuse. There’s an imbalance of power, and a lot of trust, between the person with spiritual authority. Sometimes we call this “charisma of office.” It takes a lot of personal clarity and integrity to handle this.

Sometimes you get controlling or manipulative personalities in positions of spiritual authority. They can do a lot of damage, whether physically or emotionally.

In Healing at the Borderland, I gave this example. A client is going deaf. She visits a healer, who tells her: “you haven’t been listening to God. As you as you start meditating and praying, your hearing will clear up.” The client feels bewildered, guilty, and frightened. Her doctor reassures her that the problem is 100% physical and not metaphysical—there are some things she can do, like get a hearing aid, and other things beyond medical control. Maybe prayer would help this person, but the so-called “spiritual” person she saw only scared her and inflicted emotional damage. 

Nobody knows what God thinks. There is a place for spiritual healing in our culture, but it has to be balanced, and people who provide these services have to be psychologically mature and personally whole as well as intuitively gifted.

10.       What about cases involving doctors?

There was a South Carolina case about a physician who gave a patient an intravenous injection of hydrogen peroxide to treat MS, and the patient died. The physician was sued for wrongful death, and may have faced a criminal homicide charge.

When doctors go very far outside the standard of care and patients get injured, they can be liable for all the consequences. 

This doc may not have been a scam artist, but they were certainly acting way outside the normal scope and obviously was very dangerous.

Ironically, the physician had a huge sign outside his office that said: Longevity Physician.

11.       What else do you think about when it comes to health care fraud?

Fraud is not just a bunch of scammers trying to rip you off on the Internet.

The legal definition of fraud involves two things: (1) deception, and (2) intent to deceive.

What happened after Chernobyl when for weeks, the government did not tell people about the dangers of the invisible radioactivity? Or in Japan after the tsumani when the nuclear reactor was compromised?

It’s important in anything involving our health that we get truthful and non-misleading information. The truth, the whole truth, and nothing but the truth. That’s the only way we can make intelligent choices.

 

Michael H. Cohen

www.michaelhcohen.com

 


Michael H. Cohen is a thought leader in health care law, pioneering legal strategies and solutions for clients in traditional and emerging healthcare markets.

He represents a broad range of healthcare providers, including medical and osteopathic doctors; psychologists, nurses, dentists and other allied health professionals; and complementary and alternative medicine practitioners such as chiropractors, acupuncturists, and massage therapists. His clients include clinical care facilities, dietary supplement companies, healthcare educational institutions, health insurance organizations, medical spas, medical device makers, telemedicine providers, and entrepreneurs in the health, wellness, and lifestyle industries.

Clients nationwide seek Mr. Cohen’s advice on business structure and entity formation; credentialing, licensing, and scope of practice concerns; professional disciplinary matters; employment contracts; informed consent and malpractice liability issues; HIPAA and other regulatory compliance; Stark, self-referral, anti-kickback, patient brokering, and fee-splitting questions; dietary supplement labeling; medical device and other FDA matters; website disclaimers and review of marketing materials; and other advice.  Mr. Cohen is also highly sought after for special legal counsel by other attorneys and law firms in the areas of complementary/integrative medicine and aesthetic/cosmetic medicine.

Mr. Cohen graduated from Columbia University (B.A., 1983); Boalt Hall School of Law at the University of California, Berkeley (J.D., 1986); the Haas School of Management at the University of California, Berkeley (M.B.A., 1988); and the Iowa Writers' Workshop at the University of Iowa (M.F.A., 1990). In law school, he served as an editor of the California Law Review.  He also attended the Medical Institute for Law Faculty at the Cleveland Clinic. Following law school, he served as judicial clerk for the Honorable Thomas P. Griesa, United States District Judge in the federal Southern District of New York. 

From 1990 through 1993, Mr. Cohen was an associate in the Corporate Department at Davis Polk & Wardwell, focusing on banking, securities law, and mergers & acquisitions. From 1993 to 1999 he was on the faculty of several law schools, teaching civil procedure, conflicts of laws, constitutional law, criminal law, health law, and insurance law. From 2000-2005, he served as Director of Legal Programs at the Center for Alternative Medicine Research and Education (Beth Israel Deaconess Medical Center), and then the Harvard Medical School Division for Research and Education in Complementary and Integrative Medical Therapies and Harvard Medical School Osher Institute. He was also Assistant Professor of Medicine at Harvard Medical School, with a joint appointment as Assistant Adjunct Professor in the Department of Health Policy and Management at the Harvard School of Public Health. 

While at Harvard, Mr. Cohen was Principal Investigator on two grants, Legal and Social Barriers to Alternative Therapies (National Library of Medicine at the National Institutes of Health) and Pediatric Use of Complementary Therapies by Parents: Ethical and Policy Choices (Greenwall Foundation), and Co-Investigator on several other funded projects, including Models of Integrative Care in an Academic Health Center. Among his activities, Mr. Cohen pioneered the course, “Complementary and Alternative Medicine: Health Law and Policy” at the Harvard School of Public Health. He also was awarded a Fortieth Anniversary Senior Fellowship at the Center for the Study of World Religions, Harvard Divinity School.

Mr. Cohen has published over 100 articles, and books, including: Creative Writing for Lawyers (Citadel Press, 1990); Complementary and Alternative Medicine: Legal Boundaries and Regulatory Perspectives (Johns Hopkins University Press, 1998); Beyond Complementary Medicine: Legal and Ethical Perspectives on Health Care and Human Evolution (University of Michigan Press, 2000); Future Medicine: Ethical Dilemmas, Regulatory Challenges, and Therapeutic Pathways to Health and Healing in Human Transformation (University of Michigan Press, 2003); Legal Issues in Integrative Medicine (NAF Press, 2005); and Healing at the Borderland of Medicine and Religion (University of North Carolina Press, 2005).

Following a successful academic career, Mr. Cohen returned to the practice of law. In addition to his professional activities, Mr. Cohen received certification as a Registered Yoga Teacher. Whether advising start-ups or established companies, he brings his entrepreneurial spirit and caring insight to cutting-edge legal and regulatory challenges.

Mr. Cohen is admitted to practice in California, Massachusetts New York, and Washington, D.C.

 

 

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