AAPS News December 2011 - Occupation

Volume 67, no. 12 December 2011

Occupied France was Vichy France. The Nazi invaders were in power, and many French officials were collaborators. Truly patriotic Frenchmen joined the Resistance.

Post-war Berlin was occupied by the U.S., Britain, France, and the Soviet Union. No question about it: the occupiers were victorious foreign invaders, who imposed their laws on the conquered population, seizing property and resources.

Why have protestors chosen the term “occupy” to name their movement? Do they not know what it means?

Peaceful Assembly, or Revolutionary Phalanx?
When AAPS helped to organize Doctors’ Tea Parties, a certain procedure was followed. We got a permit from the city of San Diego, for example, for a certain period of time, and paid a fee, including a damage deposit. We were, after all, renting a lovely park owned by taxpayers and maintained by the municipal authorities. We found out what the rules were. We obtained the appropriate number of portable toilets. We hired security officers in case some people came to disrupt the event. The officers had little to do: there was no public indecency, drug use, disorderly conduct, or drunkenness. At the appointed time, we left, with all our trash as well as our furniture and equipment. We allowed plenty of time to clean up the area, but had little to do because the civilized attendees did not throw litter in the park.

In contrast, our city was called disrespectful for evicting Occupy Tucson protesters, along with their tents, trash, and soup kitchen, from Armory Park “in the middle of the night”—i.e. after the park’s closing time of 10:30 p.m., so that maintenance workers could begin preparing for a permitted event at 6:00 a.m. Tucson taxpayers will have to pay $36,000 for police overtime.

There is a difference between “take back” and “take over.” It has to do with restoring the republic vs. destroying the system and redistributing the spoils. The proponents of the first obey the laws concerning public order and safety, carry a copy of the U.S. Constitution, and possibly display a “Don’t Tread on Me” flag. They are in the 99% of people who have responsibilities to a family or a job and can’t camp in a park for weeks. Members of the second group mass tightly together, chant in unison, and use the universal raised clenched fist symbol. The occupywallst.org website proclaims that “the only solution is WorldRevolution.”

Non-violent Revolution?
Although the external structure of our republican institutions appears to be intact, the upper levels of governmental, academic, artistic, media, and corporate entities have been to a large extent infiltrated—occupied—by an alien philosophy. Some attribute this to the Gramscian “long march through the institutions.” In fact, “the 99%” may actually be chanting back the words of the vast majority, if not quite 99%, of the elite “1%” that shapes the establishment political and cultural messages.

Laws based on now-pervasive Marxist economics suppress wealth creation and destroy existing wealth, helping to cause the genuine economic distress that arouses sympathy for the protesters. But economic crisis alone will not destroy the nation.

Gramscian strategy was designed to undermine public support for the foundations of the culture, and for anything that might compete with the rulers for the hearts and minds of the people—such as family, religion, national identity, professional codes of ethics, and the patient-physician relationship.

“Unalloyed primitivism in the guise of ‘multiculturalism’ is held as the new model,” writes Fr. James Thornton (“Gramsci’s Grand Plan,” New American 7/5/99). Surely we have seen enough primitivism (or barbarism) on display.

By winning “cultural hegemony” and achieving “mastery of human consciousness,” Gramsci believed, Communism could prevail without the need for mass murder or labor camps (ibid.).

To get people to enter servitude voluntarily, it helps to screen out potentially disruptive leaders. Dr. Lawrence Huntoon reports that some Canadian and U.S. medical schools, including Stanford and UCLA, are using Multiple Mini Interviews (MMIs) to identify compliant would-be physicians, “based on social skills, which are of rising importance as providers shift to a team-oriented approach” (NY Times 7/10/11). They could screen out “overly opinionated” students, those who believe patients should be allowed to pay for medical care, or those who are open to “alternative remedies.” “Independent-thinking physicians or those who believe in free-market medicine are obviously believed to possess ‘character flaws,’” states Dr. Huntoon.

Taking Back Medicine
The occupation of the halls of government by those who disdain our history and our Constitution is only part of the problem. Their supporters also wield increasing quasi-governmental powers over our lives—and are re-defining cultural norms. “Health plans,” hospitals, licensure boards, self-appointed private accreditation agencies, research funding agencies, medical journals, medical schools, specialty societies, even local and state medical societies are effectively chanting in unison, and trying to occupy our examining rooms. We must expose their anti-Western, anti-physician, anti-patient, collectivist bias; resist becoming part of their herd; and evict them from our practice.

“Private” Occupiers

By statute, the Patient-Centered Outcomes Research Institute (PCORI) is an “independent,” not-for profit, “private” entity. It is, however, paid for with $3 billion in federal dollars, and directed to collaborate with existing federal agencies that engage in outcomes research, including the Agency for Healthcare Research and Quality (AHRQ) and the National Institutes of Health (NIH). Its board of governors is appointed by the Government Accountability Office (GAO). Board meetings include roundtables with “myriad stakeholders,” who try to define things like “patient-centered outcomes” (N Engl J Med 10/13/11).

Occupation from Within

Foreign invaders are not necessarily soldiers in combat gear. They could come peacefully over the border, legally or illegally, then try to take over the nation instead of assimilating.

The U.S. foreign-born population of 40 million is at an all-time high; and from 10 million to 12 million are here illegally (Newsmax.com 11/13/11).

In Europe, the Muslim invasion is far advanced. In several boroughs of London, people have awakened to see yellow posters announcing that they are entering, or are already in, a “Shariah-Controlled Zone.” Alcohol, drugs, gambling, and concerts are forbidden (American Thinker 8/14/11). Wife-beating, female genital mutilation, and “honor killing,” on the other hand, may be permitted. Tyranny under Shariah might ultimately seem preferable to widespread chaos as in Zuccotti Park. The moral foundation for ordered liberty has long been undermined by indigenous academic occupiers. As Mona Charon writes, when the topic of human sacrifice by the Aztecs was broached in the classroom, her son reported that not one of his classmates was comfortable condemning the practice as immoral. “It was their culture” (Townhall.com 11/4/11).

Peaceful Revolution for Liberty

Influential British philosophers Jeremy Bentham and John Stuart Mill had almost banished morality from political discussion, enshrining the greatest-good-for-the-greatest-number principle. But by restoring the moral imperative for liberty, William Ewart Gladstone abolished more political power than anyone else in history, and without firing a shot, writes Richard Maybury (Early Warning Report, April 2011). He abolished 95% of Britain’s tariffs, and got the income tax down to 1.25%. Revenues soared, and the people prospered (Freeman, December 1996).

Gladstone succeeded because much of the population and a large number of influential leaders had read Adam Smith and understood his system of natural liberty, writes Maybury. He thinks that Ron Paul and Rand Paul may be the only people in the American government who embrace the original spirit of America. Our chance of an “American Retracement,” instead of a French-style revolution, depends on rediscovery of the works of our Founders, and vigorously spreading the word.

♦ ♦ ♦
“No person or group…‘can authorize government to destroy or take away from men their natural rights; for natural rights are inalienable’.”
Walter Williams, quoting Lysander S. Spooner

Ohio Voters Reject Mandate

Despite a strongly pro-union voter turnout, Ohio voters approved the Health Care Freedom Amendment by a two-to-one margin, 66% to 34%. This is an amendment to the state constitution that says people cannot be forced to buy health insurance. It is expected, however, that if the U.S. Supreme Court upholds the federal mandate, it will preempt state laws.

Meaningful to Whom?

Although the HITECH requires “certification” and “meaningful use” for electronic health records, getting to “‘meaningful’ meaningful use” is problematic (N Engl J Med 9/1/11). Adoption of EHRs does not necessarily improve quality of care. Commercial computerized physician order entry systems in hospitals picked up only 53% of fatal medication errors; only 28% of commercial information systems in ambulatory pharmacies picked up critical problems with drug-drug interactions.

In contrast to airplane flight-management systems, which are constantly retested during routine operation, “EHRs in intensive care units are rarely retested, even if they crash or shut down.” Fatal medication orders can be sent through systems after major updates have unknowingly disabled critical safety checks (ibid.).

In one study that claimed to show possible improvement in quality of diabetes care due to EHRs, the proportion of patients of non-white race was 44% in EHR practices vs. 85% in paper-based practices, and the median income was $42,000 vs. $28,000, respectively. Researchers claimed there was still benefit after adjusting for socioeconomic differences, but did not check for the effect of changing from paper to EHRs (N Eng J Med 9/1/11).

Meanwhile, the NHS, which is ahead of us in introducing an $18 billion health information system, is scrapping it, after years of delays, dysfunction, and cost overruns (Guardian 9/21/11).

Unfunded Federal Exchanges?

In its haste to pass PPACA, Congress authorized “premium assistance” (subsidies) for insurance purchased through state-run exchanges (§1311), but not federal ones (§1321). Only 17 states have passed legislation to create an exchange. The Administration has proposed an IRS rule to offer subsidies in all exchanges, as “consistent with the intent of the law and our ability to interpret and implement it.” This could, however, be challenged. “Like the rest of the nation, the Obama administration wants a different health-care law than the one we got. But that doesn’t give it the authority to rewrite the law by fiat” (Wall St J 11/16/11).

AAPS Calendar

Jan 20-21, 2012. Workshop, board meeting, Las Vegas, NV.
May 18-19, 2012. Workshop, board meeting, near Newark, NJ.
Oct 4-6, 2012. 69th annual meeting, San Diego, CA.


If you have a cash-friendly practice, and would like it listed on the AAPS website click here. If you’d like to view the list, click here.

Cert Granted on ObamaCare Challenges

The U.S. Supreme Court has granted writ of certiorari, and is expected to rule on the constitutionality of the Patient Protection and Affordable Care Act (PPACA) in June 2012.

The Court has agreed to consider the following issues: 1. the constitutionality of the individual mandate under the Commerce Clause (the second point in the AAPS amicus brief; 2. the challenge to the severability of the individual mandate (which was the first point in the AAPS brief); 3. whether the Anti-Injunction Act precludes some or all of the challenges (the government is trying to save ObamaCare by calling the penalty a “tax”); and 4. the constitutionality of the expansion of Medicaid.

AAPS is a signatory to a letter from the Judicial Action Group to Rep. Lamar Smith, Chairman of the House Judiciary Committee, asking for hearings on the role of Justice Elena Kagan in formulating the Administration’s defense of PPACA when she served as solicitor general.

Medicare Contractors Play Hide ’n Seek

Dr. Lawrence Huntoon reports that CMS/Medicare frequently changes the address to which physicians have to send their opt-out or re-opt-out affidavit. He suggests starting 6 months before the deadline to leave time to re-send the letters that are marked “return to sender” after being mailed to the address in the instructions that CMS sent to the doctor. Sending multiple copies of the affidavit by certified mail to various levels of the bureaucracy annoys officials, but so far they have always managed to forward it to the correct hide ’n seek location.

New ABN Forms Required

The 2008 Advance Beneficiary Notice forms became invalid on Nov 1. Practices that continue to use the old form will need to refund payments to patients who received invalid forms. The correct form will have a release date of 3/2011 in the lower left-hand corner. Make special note of “OPTION 2. I want the [service] listed above, but do not bill Medicare. You may ask to be paid now as I am responsible for payment. I cannot appeal if Medicare is not billed” [bold in original]. This will be discussed further in the winter 2011 issue of the Journal of American Physicians and Surgeons. Forms and instructions may be downloaded at: www.cms.gov/BNI/Downloads/ABNFormInstructions.zip.

RACs to Expand, Become More Aggressive

Under the September statement of work (SOW) issued by CMS, recovery audit contractors can use semi-automated reviews, which combine data mining and human review. There is no limit on the number of records that can be requested at one time, and no reimbursement for the cost of preparing and submitting records. The number of successful appeals is expected to decrease.

By Jan 1, 2012, Medicaid claims will come under RAC scrutiny, also on a contingency fee basis. Unlike Medicare RACs, the Medicaid RACs will look at evaluation and management services (Medical Practice Compliance Alert 10/17/11).

Hospitals are purchasing expensive anti-RAC software that most physicians cannot afford, notes Dr. Lawrence Huntoon. The cost of fighting back against a wrongful attack may exceed the demanded repayment. Moreover, if the physician pays without a fight, the RAC may not turn him over to the Zone Program Integrity Contractor (ZPIC) for possible criminal prosecution.

Dr. Huntoon warns that physicians still in the Medicare program who have adopted electronic health records have purchased the rope with which government mercenaries may hang them.

Fraud and the Deficit

PPACA contains $350 million in new funding over the next 10 years to coordinate federal and state anti-fraud efforts. Sen. Thomas Carper (D-Del.) and Tom Coburn (R-Okla,) are asking the deficit reduction “super-committee” to consider legislation they have introduced (S. 1251) to give the federal government new anti-fraud fighting tools. They claim Medicare and Medicaid lose tens of billions of dollars each year to “waste, fraud, and abuse.”

“There’s an expectation that fraud and abuse is a bottomless pit [for savings],” said attorney Linda A. Baumann. But a lot of “fraud” is coding mistakes, she said (BNA’s HCFR 10/5/11).

Executives and directors of drug and device companies can expect more individual prosecutions. One issue is promotion of drugs or devices for off-label use, sales of “less than effective” drugs, or late reporting of drug price information (ibid.).

Factually True, Legally False

The U.S. Supreme Court may have to resolve a Circuit split over the question of whether a false representation, explicit or implicit, of compliance with an underlying statute such as the anti-kickback law renders all Medicare or Medicaid claims legally false even though accurate concerning the services provided. There is also the question of whether a defendant can be held liable under the False Claims Act for “causing” a downstream provider to file legally false claims. Blackstone Medical allegedly paid doctors kickbacks for using its products. Doctors then submitted Medicare claims for surgical procedures in which they used the products. Are these claims legally false under the FCA, even though no statute or regulation expressly conditions payment of the doctor on compliance by the device manufacturer? And is the manufacturer liable under the FCA for claims filed by unrelated parties? The case is United States ex rel. Hutcheson v. Blackstone Medical Inc. 1st Cir., No. 10-1505).

Courts could “open the floodgates” with implied certification of compliance with rules, some related to payment and some not, said attorney Lisa Noller. Courts have been more inclined to push FCA’s boundaries after the Fraud Enforcement and Recovery Act (FERA) in 2009 and PPACA (BNA’s HCFR 10/19/11).

“Is it possible to be 100% certain that you are filing a claim that is perfectly accurate, factually and legally?” asks AAPS executive director Jane Orient, M.D. “The answer is no, and that’s one reason more and more doctors are opting out.”

Obstruction of Justice

Kansas bureaucrats now admit that they shredded key documents in a case against Planned Parenthood for covering up late-term abortions and failing to report child rape. Their overseer? Then-Gov. Kathleen Sebelius (michellemalkin.com).


Time to Decide. In publishing its “Calendar of Doom” about all the looming deadlines—including the Dec 1 deadline for receipt of an opt-out affidavit from participating physicians—the Texas Medical Association’s message is the same as that of many other medical societies. The focus is on “how do we help our members comply with the increasingly onerous government regulations,” and how to maximize revenue. The thought of how do we stop or oppose the egregious government interference with the practice of medicine doesn’t seem to reach consideration. The message should be that we are tired of bureaucrats “occupying” medicine. It’s time to kick them out. Bureaucrats don’t practice medicine; doctors do. Either physicians support the patient-physician relationship—or they don’t. Which shall it be?
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

Complying with Our Doom? From an e-mail sent to members, we learned that TMA has a new internet-based tool, which was unveiled at the fall conference by president Bruce Malone, M.D. (see https://www.texmed.org/doom/). Dr. Malone said that the Calendar of Doom is necessary because the “demand to comply with growing state and federal regulations is so onerous and because so few of us are really prepared for it all.” He said that medicine is “destined to become the most heavily regulated industry in the nation.” But medicine is not an industry; it is an art. Industry means working faster, seeing more patients, and robotic management. Art means personalized work and beauty. Medicine’s destiny is more regulation only if we allow it. Why should the TMA try to turn the Calendar of Doom, or something “as bad as it sounds” into something of value? Why not, instead, stand clearly against the doom of medicine?
Jaime Durand, M.D., Arlington, TX

No Thank You. CMS sent me two FedEx Express notices about the 1% reduction in pay for not adopting the electronic prescribing (eRx) edict. I am 68 years old and exhausted by overregulation. Medicare fees are less than my office overhead already, so a 1% reduction won’t matter appreciably. I believe eRx is less efficient and more prone to error than the method I use now, faxing prescriptions to local pharmacies or giving them personally to my patients. I expect and hope that the pressure to socialize medicine further will reverse course after next November, so I will not participate in the idiotic eRx program. Nor will I be using electronic medical records, another foolish recommendation, useful only for filling medical records with computer-generated nonsense and providing easy access to government records by people at the Dept. of HHS. If I am wrong in my hope for a return to a semblance of sanity, I will probably retire.
Stephen A. DeGray, M.D., Bluefield, VA

Why We Don’t Want a “Seat at the Table.” The “table” implies “consensus building” about who will control the direction of the steamroller, to borrow the image of a Washington State physician. It is an image of wasted time and resources, like a recent Patient-Centered Outcomes Research Institute (PCORI) hearing at which I testified. Such events are full of “stakeholders,” i.e. people who want something that is paid for by other people.
Robert J. Cihak, M.D., Brier, WA

Medicine of Procrustes. The patient as primary focus is gone, and documentation guidelines have become the most important part of treatment efforts. All must fit into the 69,000 schemes of ICD-10, derived and imposed authoritatively. As Martha Bethea, CPA, points out, plans may use ICD-10 “to limit coverage and treatment and for medical review and auditing” (MDNews.com, July-August 2011). In addition, payment for using electronic records systems really amount to serpentine purchasing of the practices of all who use them. Medicine is owned by whoever runs the EHR Big Brother system. Physicians should change their designation from MD to MRD (medical records doctor).
Samuel A. Nigro, M.D., Cleveland Heights, OH

Involuntary Enrollment. I got a letter from Blue Cross Blue Shield informing me that they had “enrolled” one of my patients in their “For Your Health Diabetes Program.” They planned to assist my patient in “true behavior modification” according to “evidence-based guidelines.” When a nurse called, my patient informed her that she did not have diabetes (an erroneous diagnostic code had not been removed from her billing record) and did not wish any assistance. Nevertheless, the nurse subjected her to a long list of questions, until my long-suffering patient forcefully stated that she would be taking advice from her doctors.
Wayne Porter, M.D., Terrell, TX

50 Years of Failure. In trying to get a third-party payment system—by government, employers, or private insurers—to work, we have spent billions of dollars trying to tweak it with rate-setting, managed care, contracts, prospective payment, etc. “ObamaCare” is more of the same. Mandating that people buy lousy insurance improves nothing. The only thing that works is empowering patients by returning their own money to them. The “policy community” doesn’t like being disempowered in this way.
Greg Scandlen, Hagerstown, MD