AAPS News April 2012 - ObamaCare: Increasing Bad News & Opposition

Volume 68, no. 4 April 2012

Two years after Obama signed the Affordable Care Act (ACA or ObamaCare), and just prior to the Supreme Court oral arguments on its constitutionality, the Administration is planning a media blitz about its “free” “preventive” care for seniors and women, and restrictions on insurance. Meanwhile, opposition grows as people begin to learn more about “what’s in it.”

The Congressional Budget Office doubled its 10-year cost estimate to $1.76 trillion (NCPA 3/15/12).

The cost of guaranteed-issue and community-rating mandates is estimated to reach $280 billion over the next decade; elimination of out-of-pocket coverage limits, $51 billion; keeping 26-year-old “children” on parents’ policies, $77 billion (Sally Pipes 2/6/12).

Federal and state Medicaid spending would soar from $400 billion to $800 billion by 2022 (ibid.).

As “grandfathered” plans are dropped, 42% of California employees have lost their pre-ACA coverage. California premiums increased a mean of $1,310 per family last year alone (Chris Jacobs, RPC 1/5/12).

Waivers were granted to more than 1,200 companies by January (Daily Mailer 2/13/12).

In contrast to two pages of new agencies under FDR’s New Deal, which transformed America, just one bill, the ACA, has more than 100 new boards and commissions (http://tinyurl.com/74bm5fz).


Monopoly

AMA membership has dwindled to 15% or less of practicing physicians, and the last state medical association to require AMA membership, Mississippi, “deunified” in 2008. This does not stop the AMA from claiming to speak with a “unified voice” for all physicians, and it is still the voice that counts, at many levels.

The AMA has floated the idea of becoming “an association of associations,” rather than an individual membership association. Operationally, it may work that way. State societies, along with national specialty societies, belong to the “Federation of Medicine” and send representatives to the House of Delegates.

The HOD has an elaborate “democratic” process, although we are not aware of any successful major action that opposed the desires of the Board of Trustees, from the special session called by Francis Davis and colleagues in 1965 to urge nonparticipation in Medicare (AAPS News, April 2009), to recent efforts by delegates to urge the AMA to renounce its support of ObamaCare.

More important are AMA activities in which ordinary members or delegates apparently have no input at all. These include the RUC (RVS Update Committee), relationships with licensure boards, and associations with self-appointed quasi-governmental agencies such as the Joint Commission, the Federation of State Medical Boards (FSMB), the American Board of Medical Specialties (ABMS), the Accreditation Councils for Graduate Medical Education (ACGME) and Continuing Medical Education (ACCME). The AMA’s monopoly on Current Procedural Terminology (CPT) codes is probably its biggest revenue source.

CPT also makes the AMA extremely influential in determining what can be paid for by Medicare, and hence what can be done: no CPT code, no Medicare payment. Commercial insurers generally follow Medicare. The AMA also plays a key role in determining the “standard of care.” Long a matter of dispute between plaintiffs’ and defendants’ expert witnesses in professional liability litigation, SOC could soon be determined by “guidelines” written by accepted experts, through tort reform that confers immunity on compliance and risk on “deviation.” Worse, failure to follow (“falling below”) the SOC can spell delicensure.

AMA-approved “guidelines” increasingly determine what may be taught. Many state legislatures mandate CME that is accredited by ACCME. Lifelong subjugation of physicians to supervision by the Federation and its associates (“lifelong learning”) is the goal of maintenance of certification (MOC).

Maintenance of Licensure (MOL)
What used to be an honor (board certification) is becoming a requirement for membership on the medical staff of many hospitals, or for participation in insurance panels. The goal is to make licensure dependent on periodically running the gauntlet of examinations and “continuous quality improvement” exercises in one’s practice.

In 2010 FSMB adopted a framework and recommendations for MOL, to include independent physicians who stay in their offices. This involves physicians’ assessment of their own “need for improvement”; external performance evaluation; and measurement of improvement by comparing individual with national data. The process was outlined at an off-site meeting of the Arizona Medical Board on April 6, 2011 (http://tinyurl.com/86m7ujm).

Some states are moving rapidly toward implementation through legislation. The Ohio State Medical Association is considering a resolution to oppose this.

Opposition by older physicians who are more influential and established in their careers has been muted because they were “grandfathered” and remain board certified for life. Still, the process is likely to accelerate as the old guard retires or dies.

It’s About the Money
The stated rationale for MOC/MOL is quality, safety, and protection of the public—although there is no evidence for any such benefit. The actual result (perhaps actually the intended result) is likely to be an exacerbation of the physician shortage, as physicians retire early rather than endure the process. Only 22% of those who had been recertified said they were willing to go through the increasingly expensive and onerous process again (J Am Phys Surg, spring 2009). Thus, more patients would have to rely on nonphysicians for care. Moreover, constant immersion in MOC study materials will probably exacerbate what AAPS past president Lee Hieb, M.D., called the “processional caterpillar” effect of playing “follow the leader” instead of engaging in independent thought (J Am Phys Surg, fall 2011).

The accreditation, certification, and testing cartel is a lucrative industry despite its nonprofit tax status, writes Paul Kempen, M.D. (J Am Phys Surg, spring 2012). Combined annual receipts for FSMB and ASMB exceed $350 million—“a significant...healthcare cost for bureaucracy alone.”

Lifelong Indoctrination
Many states specifically require periodic ACCME-accredited CME in “ethics.” The AMA seeks to establish its ethical code (see p 2) as the legal standard enforceable by licensure boards. The ring of interlocking, mutually reinforcing councils, foundations, boards, associations, and committees is pushing toward a monopoly on “science,” ethics, and education.

Covert rationing (AAPS News, March 2012) requires centralized power, which can be sustained only by covert censorship.


The AMA Code of Ethics

In 1995, the FSMB adopted as policy a joint report with the AMA entitled “Ethics and Quality of Care,” which called for including AMA Principles of Medical Ethics and Current Opinions of its Council on Ethical and Judicial Affairs (CEJA) in licensure examinations (http://tinyurl.com/847eu3g).

This Code is said to be “the most commonly cited standard for courts, legislatures, administrative agencies, medical boards, and other peer review entities.” Most medical societies and virtually all state medical societies accept it as the profession’s code.

CEJA describes, as a key aspect of physicians’ duties, reporting incompetent, impaired, or unethical colleagues to state medical boards, as part of “comprehensive peer review.” On the AMA website, the first question in the FAQ on ethics is: “How do I file a complaint against a physician?” Would-be complainants can purchase the 504-page Current Opinions for $60.

The seventh question concerns a physician’s obligation under the “Hippocratic Oath.” The AMA does not have a formal policy related to the Oath and no longer reprints the Oath in its Code. Some of the tenets of the Oath are said to be “outdated.”

A 2000 article in AM News from the AMA’s Institute of Ethics states that modernized versions of the Oath notably omit “the covenant with the gods, prohibitions on euthanasia and on performing abortions, individual conduct with regard to sexual relationships with patients, and personal accountability for one’s judgments and actions” (http://tinyurl.com/7qw8jtp).

Followers of Hippocrates were a small minority with views contrary to those of their contemporaries. “Use of the oath did not gain wide acceptance until the early Middle Ages, when it was revised to reflect the ideals and beliefs of Christianity” (ibid.).

AMA Principles, revised 2001, contain affirmative political and social duties: “to participate in activities contributing to the improvement of the community and the betterment of public health” and to “support access to medical care for all people.”


The Medical Education Establishment

Most physicians do believe in constantly learning about new developments and updating their skills. It is hard to object to education. But over the years, applications for AMA Category 1 credit have become more and more burdensome and costly. Small organizations such as community hospitals often can’t afford to hire staff to do the busywork. Joint sponsorship may be impossible to find—possibly because AMA/ACCME/et al. may disapprove of program content and withdraw accreditation on some pretext. For whatever reason, some 150 organizations have lost ACCME accreditation in the past 7 years. These include the American Cancer Society, the New York Academy of Medicine, and the Utah Medical Assn (http://tinyurl.com/782zlfb). An accreditation monopoly enables covert censorship and leads to self censorship.

ACGME has succeeded—in making the train run on time, writes Michael Edmond, M.D., M.P.H. Housestaff spend most of their working hours facing the wall and typing on a computer—with an unforgiving time clock on their shoulder. Casualties include the otoscopic exam, the funduscopic exam, and most of the neurologic exam, along with most of the informal human interactions that used to occur among students, residents, and attending physicians (Ann Intern Med 12/21/10).


AAPS Membership Benefits

AAPS members can take advantage of critical illness insurance; discounts on disability insurance; membership in Medical Justice to fight back against frivolous lawsuits; and a trial basic membership in MediBid to help bring self-paying patients to your practice. You may be able to save substantial amounts on a health insurance policy with a deductible of $10,000 or more, offered to AAPS members through JLBG Health.

Links to these and more are at www.aapsonline.org. Click on “resources,” then “member benefits.”


Physician Autonomy, Redefined

“Physician autonomy is not equivalent to the liberty to treat patients however physicians want,” write Ezekiel Emanuel and Steve Pearson (JAMA 1/25/12). Under ACA, it means more financial risk, more coordination, more collaboration.


AAPS Calendar

May 18-19, 2012. Workshop, board meeting, Somerset, NJ.
Oct 4-6. 69th annual meeting, San Diego, CA.


ACTION OF THE MONTH

Participate in our survey on MOC/MOL at http://aapsonline.org/mocsurvey. Alert us to efforts by your medical licensure board or legislature to mandate MOC/MOL.


Administration Denies Contraceptives to Poor

While trying to force Catholic employers to buy contraceptives, the Obama Administration is shutting down a Medicaid Family Planning Demonstration Program, which provides breast and cervical cancer screening, as well as birth control, to 130,000 of the state’s poorest women. The reason is a 2011 Texas law that prohibits state funding to any facility that provides abortion services, even if the state money is not directly used for abortions.

Texas Attorney General Greg Abbott filed a lawsuit against Kathleen Sebelius and the U.S. Dept. of Health and Human Services, arguing that the action violates the U.S. Constitution “by seeking to commandeer and coerce the states’ lawmaking processes into awarding taxpayer subsidies to elective abortion providers.” The 90% funding share that comes from the federal government really was taken from Texas taxpayers, “and they are being denied their own money back as punishment for no longer funding Planned Parenthood clinics,” writes Andrew Schlafly.


Conscripting Research Subjects

The patient-physician relationship, which is at the core of medical ethics, has evolved over the past several decades, writes Robert D. Truog, M.D. The revered principle that physicians should be solely devoted to their patients’ best interest now “must be balanced against the value of offering entire populations of patients equitable access to necessary health care.” Thus, “population-based factors such as justice, efficiency, and fairness are also ethically relevant” (NEJM 2/16/12).

While the Nuremberg trials led to safeguards to ensure fully informed consent for participants in clinical trials, ethical tensions remain between the roles of physician and researcher (ibid.).

Further evolution may occur in response to the “distressing decline in the numbers of healthy volunteers who participate in clinical trials.” This could become the key rate-limiting factor in vaccine development, where animal models are lacking. Vaccines against malaria, human immunodeficiency virus, and tuberculosis could save millions worldwide. “But reliance on altruism alone to facilitate clinical trials is potentially unsustainable and ethically contentious,” write Susanne Sheehy and Joel Meyer (Virtual Mentor, January 2012). Paying “danger money” might mean that risks would be disproportionately borne by the most vulnerable.

“Compulsory involvement in vaccine studies is one alternative solution that is not as outlandish as it might seem….” After all, many societies already mandate that citizens undertake activities for the good of society, as in “opt-out” organ donation. Mandated vaccine trial participation is “akin to military conscription, which is operative in 66 countries” (ibid.).

Germany relies on conscription to staff hospitals, retirement homes, and facilities for the handicapped. This alternative to military service for conscientious objectors supplies 90,000 young men per year; its loss would have serious consequences to the social infrastructure (Spiegelonline 7/29/10).



“Woe unto you also, ye lawyers! for ye lade men with burdens grievous to be borne, and ye yourselves touch not the burdens with one of your fingers.... Woe unto you, lawyers! for ye have taken away the key of knowledge: ye entered not in yourselves, and them that were entering in ye hindered.” Luke 11:46, 52, KJV


Bogus Conviction Brought Us ObamaCare

One of the 60 Senate votes necessary to pass ObamaCare was cast by Sen. Mark Begich (D-AK), who narrowly defeated the late Sen. Ted Stevens two weeks after his conviction for making false statements to conceal gifts. The conviction was set aside 5 months later because of prosecutorial misconduct (WSJ 3/5/12). A 2.5-year investigation found that the prosecuting team withheld documents and never conducted a review for exculpatory evidence.

Their “complete, simultaneous and long-term memory failure” concerning a witness with information backing the senator’s claim of innocence was “astonishing,” stated court-appointed investigator Henry Schuelke. He concluded, however, that contempt charges were not feasible because the judge had failed to explicitly remind them of their obligation to disclose information helpful to the defense (NY Times 3/18/12).


The “Other Death Sentence”

The life-sentenced population in the U.S. is about 141,000 persons, twice the size of the entire incarcerated population of Japan. This does not count those with virtual life sentences, whose release date is beyond their natural life expectancy, like some physicians convicted for prescribing pain medications. The U.S. Supreme Court has been extremely supportive of life sentences and grossly disproportionate sentences. There has also been a sharp decrease in executive clemency, which throughout the 19th century was a key mechanism for correcting miscarriages of justice or making far-reaching statements about the criminal-justice system (Prison Legal News, January 2012).


Insurance and Commerce

For the first 150 years of our history, insurance was not considered commerce. It suddenly became commerce in 1945 in the U.S. Supreme Court case of United States v. South-Eastern Underwriters. This was another case of judicial activism, writes Greg Scandlen: “Stare decisis seems to apply only to conservative judges.” Apparently, Congress wanted nothing to do with insurance regulation at that time, so it immediately kicked that responsibility back to the states in the McCarran-Ferguson Act of 1946 (John Goodman’s Health Policy Blog 1/12/12). McCarran-Ferguson also exempts the business of insurance from antitrust legislation.

Ralph Weber writes that McCarran-Ferguson could be used to block the implementation of ObamaCare, which makes the federal government the head regulator of health insurance. Oddly, though Republicans claim to want to repeal ObamaCare, Rep. Paul Gosar (R-AZ) added an amendment to repeal McCarran-Ferguson for medical-liability and health insurance to a bill to repeal the Independent Payment Advisory Board (IPAB), which is part of the ACA. The insurance industry opposes the amendment, stating that repeal of McCarran-Ferguson would be “anti-competitive.” McCarran-Ferguson permits insurers to share loss-cost data and to develop common policy forms, activities that the Dept. of Justice considers permissible because advisory organizations are regulated by state law.

Gosar says that McCarran-Ferguson does not require states to regulate insurers, and they should have to follow the same laws that apply to other industries, and compete fairly.


Correspondence

Insurer Hires Supercomputer to Practice Medicine. One of the nation’s largest insurers, Wellpoint, has just hired the IBM supercomputer known as “Watson.” This is the computer that competed against humans on the TV trivia show Jeopardy. Although the insurer says that it won’t use this supercomputer to deny care to patients, if the physician’s treatment decision differs from Watson’s proposed treatment, the physician will have to explain his decision to a clinical reviewer (rationing by hassle factor). Maybe someone should file a complaint with the state medical board for practicing without a license (WSJ 9/12/11) .
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


Universal Access to—Cell Phones. Even panhandlers have cell phones—91% of Americans use one. If something goes wrong, access to repair service is usually immediate. For customers who have trouble figuring out how to use their phone, Verizon has free classes. Why is access to medical treatment so much poorer—and so much more expensive? And why can’t you talk to your doctor on the phone? Let’s see. Everyone pays a market price for the cell phone. There are no third parties, and there is easy entry into the marketplace. In contrast, while the phone company charges your doctor for its service, he usually can’t charge you for calling him.
John Goodman, Ph.D., National Center for Policy Analysis
http://healthblog.ncpa.org/cell-phones-vs-health-care/


Approved in Record Time. Five hospitals have received the Joint Commission’s advanced certification for palliative care, a program that the agency’s David Eickemeyer said “has taken off faster than any other advanced certification program we’ve ever introduced, including stroke” (HealthLeaders Media 2/28/12). If our government intends to direct more elderly patients to palliative care instead of potential life-saving care, these centers need to be up and running before the ObamaCare panels decide what care doctors can no longer provide.
Joseph S. Scherzer, M.D., Scottsdale, AZ


Cost-Benefit and Contraception. Many studies focus on the costs incurred by social benefits programs to care for a child, vs. the cost of preventing birth. Nothing like confining cost benefit to a zero-sum-game case. The logic works if one has created a culture that dislikes children. Fertility rates in Europe, the former USSR, and Japan suggest that it can be done. In this case, entertaining the thought that this is a matter of cost benefit shows that one has lost. The question is whether people should be forced to pay for something they believe to be morally wrong.
Linda Gorman, Ph.D., Independence Institute, Golden, CO


Why Play? Why wouldn’t any large employer who is paying $4,500 per year for a single individual or $12,000 for a family not willfully pay the $2,000 penalty and send the employees to the Exchange, where they can decide for themselves which of the Hobson’s Choice plans is best for them? One would think that every public corporation or nonprofit has a responsibility to its stakeholders to do the math. Of course, that puts the burden on the employee, who would also do the math and find out that an $800 fine is way better than the premium, especially when you can buy a policy on your smartphone on the way to the hospital.
Richard A. Matthews, C.E.B.S., Savannah, GA


“An Offer You Can’t Refuse.” The March issue reported on the decision on a lawsuit brought by Dick Armey, et al., that upheld the absurdity that Social Security recipients cannot legally disclaim Medicare Part A benefits because they have accepted Social Security retirement payments. Although it is mandatory to pay into Social Security in the first place, to try to recoup those payments is considered an “option.” Exercising this “option” comes with strings attached: mandatory enrollment in an “optional” entitlement, i.e. Medicare Part A. Sounds like something only the Mafia could dream up.
Elizabeth Kamenar, M.D., Mountaintop, PA


Healthcare Costs Are Under Control. Whether you describe excessive national expenditure of money as costs or as payments, spending is tightly controlled—by government. As Washington increases payments to itself, e.g. six whole new agencies in the Affordable Care Act, it claims to balance the budget by “cutting costs,” meaning reducing payments to “providers.” Of all the money the U.S. spent on “healthcare” in 2010, 40% or $1 trillion just...disappeared. It provided no care. This is a straightforward accounting arrived at by adding up all monies that went to anything or anyone associated with providing patient care: hospitals, nursing homes, professionals, pharmaceutical companies, wheelchair manufacturers, etc., and comparing that number to the total amount listed under “Healthcare” in the federal budget.
Deane Waldman, M.D., M.B.A., author of Uproot U.S. Healthcare


Cuba Is Capitalist. In the broad sense of creating capital by saving part of economic output to invest in the means of production, all developed or semi-developed countries are capitalist. In the authoritarian state, this is done by force. In a free market, it is by individual choice, not by confiscation., leading to creativity, innovation, industriousness, and prosperity. In the U.S., prosperity is waning because we are shifting to state capitalism.
Craig Cantoni, Scottsdale, AZ