EDITOR’S NOTE:
Following last Monday’s Monitor Monday Internet broadcast, the U.S. Department of Health & Human Services (HHS) posted new guidance and an online portal, soliciting complaints to the HHS Office of Inspector General (OIG) for consideration.
The new posting—“Whistleblower Tips and Complaints Regarding the Chemical and Surgical Mutilation of Children” – and made available on the web via www.hhs.gov/protect-kids1—appears to be a doubling-down by the agency of its incorrect assertion that providing evidence-based, gender health service is somehow inappropriate, or, more seriously, considered a crime by the HHS.
In this instance, the HHS seemingly conflates legal, sub-specialty care with “fraud, abuse, or misconduct,” encouraging the public to serve as “whistleblowers” for both on a single online portal1. The current administration’s use of “fraud,” “waste,” or “abuse” have become frequent, non-specific descriptors applied to about any entity with which it disagrees. But these words have very specific, and consequential meaning in the healthcare space, so they are not to be used lightly.
In its posting, HHS outlines two things: (1) when protected health information (PHI) may and may not be disclosed, and (2) the potential legal protections for whistleblowers2.
In the opening statement, HHS attributes its posting as serving a requirement set forth in an Executive Order (14187)3: “pursuant to Section 5(b) of that Order, the United States Department of Health and Human Services (HHS), including its Office for Civil Rights (OCR), in consultation with the Attorney General, issues this guidance for prospective whistleblowers”2.
While the precise language contained within that order [Sect 5(b)] indicates the Secretary of HHS shall “issue new guidance”3, the HHS posting’s author – [Assistant Secretary for Public Affairs (ASPA)] – states, “we hope this guidance will allay such fears. It explains existing protections”2. And although the Executive Order’s request for “new guidance”3 may be satisfied by this posting – as this summary by HHS regarding PHI and whistleblowers is, objectively, a new post – it does not actually create any new protections or process.
Consequently, one can reasonably elicit from this release that “new” protections have not been created; rather, “existing” protections have simply been reiterated by HHS.
Interestingly, the posting goes into great detail recounting privacy rules and the applicability of the Health Insurance Portability and Accountability Act (HIPAA)4. It appears to do so in order to establish individuals who may disclose PHI in an effort to “whistleblow” are doing so in “good faith”2 to expose services which “potentially endangers one or more patients, workers, or the public”, “constituted professional misconduct”, or “a clinician has unlawfully prescribed such medications to a minor patient”4.
Counter to reputably published medical evidence6, this section of the posting2 seems to be laying a premise that current standards of care in gender health6 are equated with endangering public health, professional misconduct, or unlawful care2. While these may be talking points for far-right advocacy groups, media, and the current administration, they are, as stated in last week’s article5, devoid of a substantive basis.
The HHS posting then outlines what it believes are “applicable legal protections”2. It cites the National Defense Authorization Act of 20137 to validate a fringe belief that gender health poses a risk to public safety8. It concludes by saying, “an employee may reasonably believe that the chemical or surgical mutilation of children presents a danger to public health and safety”2, using the clinically flawed, poorly drafted QSSAM-25-02-Hospitals9 by this same administration as the body of evidence to support such an assertion.
Again, as noted in last week’s article5, the aforementioned memo by the Centers for Medicare & Medicaid Services (CMS)9 is itself neither a comprehensive literature review nor inclusive of the most exhaustive body of research on gender health6, so using it as supportive evidence for public health concern is an error of fact that one would not typically expect from HHS.
The posting subsequently cites medical untruths from the Executive Order3 without any reputable, evidence-based citations to further substantiate what it construes as potential harms2. It wanders into False Claims Act provisions, presumably in an attempt to present the picture that medical claims submitted by providers for gender health services are illegal.
HHS specifically states, “if an individual has knowledge that a healthcare provider submitted a claim (or caused the submission of a claim) for payment to a federal health care program in connection with chemical or surgical mutilation in violation of the terms of any existing law, regulation, or contract provision material to federal payment, then such individual could be a whistleblower”2. The problem with this statement is that providing gender health and submitting a claim for said care does not violate the “terms of any existing law, regulation, or contract provision material to federal payment”2.
First, an Executive Order is not a law. Second, the Executive Order3 itself has been the recipient of two injunctions in federal court11,12, due to its potentially unlawful nature. So, the False Claims Act scope is likely inapplicable or entirely irrelevant.
Finally, the HHS posting concludes with a discussion of the Church Amendments2, introducing another inconsistency into the HHS guidance: the Church Amendments are specific to a provider’s conscientious objection to participating in a “lawful sterilization procedure”10.
All the preceding language in the HHS guidance operates upon the premise that gender affirming care – which can result in sterilization, temporary or permanent – is illegal2. And then, in this final section of guidance, HHS inexplicably changes course, outlining protections for conscientious objectors of “lawful” medical practice.
Ironically, the one thing this post may have accidentally gotten right is acknowledging the lawful nature of providing gender affirming care.
In summary, lumping two entirely unrelated subjects together certainly serves to confuse the public, at best. At worst, it encourages frivolous use of the OIG’s already scarce resources, which are necessary to protect the integrity of our public health apparatus.
This method of crowdsourcing accusations of alleged wrongdoing by ideologically inspired individuals is not new – such solicitations by far-right advocacy groups are abundant across the Internet. But this posting comes straight from the federal government, and it has to be held to a higher standard.
After considering the loosely connected content of this HHS posting, and becoming somewhat perplexed by its intent, I am left with this simple question: “whistleblow” about what, exactly?
Because, to the casual observer, it sure looks like intimidation directed at doctors, as a means of frightening them into abandoning their patients, for fear of governmental retribution. Now, that is something from which we may all need protection.
References
Combat is often described as hours of boredom intermixed with moments of sheer terror. I fear that that metaphor is increasingly applicable to Medicare enrollment. Few
Let’s start with a recent (U.S. Department of Health and Human Services Office of Inspector General) OIG audit of a Medicare Advantage plan. Now these
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