AAPS News February 2013 - Inaugural

Volume 69, no. 2 February 2013

Before a live crowd of about 1 million persons Barack Obama gave a second inaugural address filled with portent.

The nation is deeply divided. The most striking visual representation, in three dimensions, shows Obama’s strength primarily in areas of dense population; outside of California and New York, he won the rest of the country by a mere 64,000 votes (Paul Murphy, American Thinker 12/6/12). The great divide appears to be between the producers (“makers”) and dependents (“takers”), including the affluent class of government workers and seekers of social justice.

There was, however, no conciliatory message. Rather, “we were made for this moment…. We will seize it.” And “let us answer the call of history.” He is “determined to prevail on his terms.” Instead of “gently guid[ing] opposing sides toward consensus,…[he] now believes that a different style of leadership is required,” writes Dan Balz (Wash Post 1/21/13). No “come let us reason together.” Instead, “follow me.”

Entitlements “do not make us a nation of takers; they free us to take the risks that made this country great.” There is no more fiscal crisis: “an economic recovery has begun.” The focus is on issues that were not emphasized in the campaign: gay marriage, gun control, tolerance of illegal immigration, global warming. We now live in a “world without boundaries.” Unapologetically, his is a hard-left agenda of globalism and big-government collectivism.

Arriving at this point, especially with the “signature achievement” of the misnamed Patient Protection and Affordable Care Act (ACA or ObamaCare), has been a “long and winding road” since 1915, writes Jonathan Oberlander (Science 1/20/12). The enactment of ACA was a “political miracle” that finally overcame American political institutions [such as the U.S. Constitution] that “fragment power [and] create numerous veto points.” Too many stakeholders profit from “inequities and inefficiencies.”

Barely into the second term, Obama has, with the “Cliff Fix,” completed the de facto abrogation of the Constitution. In its place we have Obama as the source of the nation’s morality, constantly asserting “it’s the right thing to do,” states Christopher Manion. Anyone who opposes him is not merely wrong, but morally corrupt and on the take (WSJ 1/19-20/13). At the Inaugural, he saw no need to mask his partisan rancor, writes Peggy Noonan (ibid.).

Top-Down Decisionmaking in Medicine
The general attitude prevailing at the pinnacle of government is reflected in medical authorities as well. For example, Robert Wachter, M.D., recently inaugurated as chairman of the American Board of Internal Medicine, thinks that what doctors need is discipline. They have been “pampered” and “coddled” for too long. He quotes Atul Gawande, M.D., who writes in The Checklist Manifesto: “All learned occupations have a definition of professionalism, a code of conduct… [with] at least three common elements”— selflessness, an expectation of skill, and an expectation of trustworthiness. Gawande notes that aviators add a fourth expectation: “discipline in following prudent procedure and in functioning with others.” This concept, he writes, is “almost entirely outside the lexicon [of medicine, where we] hold up ‘autonomy’ as a professional lodestar, a principle that stands in direct opposition to discipline.”

Mandating influenza vaccine, Wachter thinks, is a good thing, but not just for preventing flu. It’s also “to get in the habit of making our folks do the right thing when it comes to patient safety.” Flu shots are “such a perfect starter, a ‘gateway drug’ to a future state in which healthcare leaders have sufficient courage to identify certain practices that we all should be doing, to say just that, and then to enforce it.” The mandate is a way “to begin to shift our culture to one in which we actually require people to do things when they are the unambiguously right things to do.”

At his institution, the Univ. of California at San Francisco, they not only mandate flu shots but Maintenance of Certification. Also, “we have released several disruptive physicians for behavior that would have been tolerated in the past, and we are experimenting with using cameras to observe hand-washing behaviors.”

Quoting Henry Kissinger, Wachter says that “weakness is provocative,” and “we” have been weak far too long.

Doctors who question the evidence are saying, “I don’t want to do that.” It’s “passive aggressiveness wrapped up in the garb of evidence-based medicine” (http://tinyurl.com/bxmnwha).

A Conservative Anschluss Moment?
When Sen. Mitch McConnell said, “The tax issue is finished. Over. Completed. That’s behind us,” it reminded Jeffrey Lord of British appeasers who said they almost wished Hitler would “swallow Austria and get it over.” Recall that the majority of Austrians favored it. Lord fears that congressional Republicans, oblivious to Obama’s “transformational” goal of a post-Constitutional America, will approach his program one issue at a time (Am Spectator 1/18/13).

Christopher Monckton predicts that Republicans will lose on every issue. The hard Left follows Alinsky’s Rules for Radicals. Instead of engaging in an argument, they threaten relentlessly to destroy anyone who speaks out. But after the cataclysm, Monckton believes that the Left will share the fate of Nineveh and Tyre (WND 1/22/13).


Flashback on the Debt

“The fact that we are here today to debate raising America’s debt limit is a sign of leadership failure. It is a sign that the US Government cannot pay its own bills. It is a sign that we now depend on ongoing financial assistance from foreign countries to finance our Government’s reckless fiscal policies. Increasing America’s debt weakens us domestically and internationally. Leadership means that, ‘the buck stops here.’ Instead, Washington is shifting the burden of bad choices today onto the backs of our children and grandchildren. America has a debt problem and a failure of leadership. Americans deserve better.”
Senator Barack H. Obama, March 2006


Death Star for ObamaCare

To make ACA constitutional, the U.S Supreme Court made it unworkable, writes George Will, citing the analysis by University of Missouri law professor Thomas A. Lambert. The price for not purchasing insurance is a tax, not a penalty, only if it is so small as to be ineffective (http://tinyurl.com/b83ln54).

People who cannot afford to pay rising health insurance premiums will have to opt to pay the tax, observes Lawrence Huntoon, M.D., Ph.D. Some, especially individuals and small businesses, are facing double-digit increases. Anthem Blue Cross of California is seeking a 26% increase, after the 39% increase sought in 2010 helped give an impetus to reform (NY Times 1/5/13). Because of community rating, premiums for younger, healthier individuals could increase by 40%, and 80% of Americans under age 30 will face increased premiums in the individual market, despite subsidies (Forbes 1/12/13). Some markets could go up 100%, write Merrill Matthews and Mark Litow (WSJ 1/14/13).

The city of Wilmington, DE, could face ObamaCare premiums as high as $17,500 for one employee. The average annual cost for family coverage on an employer plan is nearly $16,000.


About That Economic Recovery

View of Small Business Executives. According to a survey by the U.S. Chamber of Commerce, 82% think the U.S. economy is on the wrong track; 71% think that ACA makes it harder to hire; 54% expect the climate for small business to worsen in the next 2 years; and 53% have not hired in the past year (http://tinyurl.com/auys8bj).

Social Security Runs $47.8 Billion Deficit. In fiscal 2012, the Social Security program brought in $725.4 billion cash and paid out $773.2 billion in benefits and overhead.

Businesses Curb Growth. Little-known regulations released Dec 28 determine the effect of a business’s 2013 structure on its status under ACA. Those on the cusp of 50 full-time employees may deliberately cut back or outsource work (WSJ 1/16/13).


“In France…, books that told...of the heroic defense of French soldiers... at Verdun in 1916...were replaced by books that told impartially about the suffering of all soldiers…. In 1940, the world was shocked when the French surrendered after 6 weeks…. Two decades of undermining French patriotism and morale had done their work” (T. Sowell, Human Events 1/8/13).


AAPS Medicaid Survey

Of 875 respondents to last month’s survey, 54% are enrolled as a Medicaid provider, and 41% of them plan to stop taking new Medicaid patients. Of 400 who are not enrolled in Medicaid, 11% volunteer in a charity clinic, and 49% see patients who can’t afford to pay full fees, either pro bono or for what they can afford.


ObamaCare and Gun Control

Thanks to Sen. Harry Reid, ACA contains a provision entitled “Limitations on Data Collection Requirements for Individuals.” It states: “No individual shall be required to disclose any information under any data collection activity authorized under the [PPACA] or an amendment made by that Act relating to—(A) the lawful ownership or possession of a firearm or ammunition or (B) the lawful use, possession, or storage of a firearm or ammunition.” In the wake of the Newtown shootings, Obama issued 23 Executive Orders, one of which is said to “clarify” that nothing in ACA prohibits doctors from asking about guns in the home or from reporting threats of violence.


Germany Exports the Old and Sick

Closer to the end game of the welfare state than the U.S., Germany is sending elderly patients who can’t afford the growing cost of retirement homes to facilities in eastern Europe and Asia. Some call this “inhumane deportation.” More than 400,000 people are said to be unable to afford a German retirement home. In 2011, some 7,000 had been sent to Hungary, 3,000 to the Czech Republic, 699 to Slovakia, and unknown numbers to Spain, Greece, Ukraine, Thailand, and the Philippines.

Before Germany ended military conscription in 2011, conscripts who filed for conscientious objector status, about 150,000 per year, were assigned to hospitals, nursing homes, or other social programs. Even with imported, cheaper workers, the system is unworkable, and care standards are deteriorating. The shrinking German population is the fastest aging in the world (Guardian 12/26/12, http://tinyurl.com/d3dctja).

In 1915, reformers urged the U.S. to follow the example of Germany and England to secure access to medical care. “Bad timing,” “xenophobia,” and intense opposition from businesses and the insurance industry defeated the effort, and “the issue briefly disappeared from the agenda,” writes Jonathan Oberlander, Ph.D. (NEJM 8/16/12). He faults the U.S. “political culture suspicious of centralized power and enamored of individual responsibility” for the “abject failure” of U.S. health policy, and our “inequitable, inefficient” system. To him, ACA provides strong grounds for optimism that we will move forward, rather than backward.


AAPS Calendar

Sept 25-28, 2013. 70th annual meeting, Denver, CO.


ACTION OF THE MONTH

Do you welcome patients who would like an insurance-free visit? If so, add yourself to our list of cash-friendly practices at http://bit.ly/TJpKB8.


Discipline: Criteria for Corrective Action

Provisions from hospital medical staff bylaws—“the most shocking I have seen to date for the initiation of corrective action”—are sent by Lawrence Huntoon, M.D., Ph.D., chairman of the AAPS Committee to Combat Sham Peer Review:

“Fails to provide quality care in an efficient or resource-effective manner” [example: refusal of a spine surgeon to use implants he considered to be inferior and unsafe];

“Significantly affects reimbursement to the hospital in an adverse manner” [examples: refusal to go along with “creative” coding believed to be fraudulent or to sign up with a managed-care company that demands 100% participation];

“Causes an intensified review of the Hospital by any government or private reviewing agency” [example: reporting substandard care to an outside agency when internal efforts to correct it fail].


AAPS Supports Free Speech about Quality Issues

After he exercised his First Amendment rights—and professional responsibility—to criticize hospital administrators, R.V. Rao, M.D., had his hospital privileges terminated by means of a retaliatory sham peer review. Dr. Rao’s offense was simply to make a cameo appearance in the video Life for Sale. Although he made no critical statements himself, the video was critical of the administration of a public hospital, the Washington Township Health Care District. Dr. Rao was blacklisted through a report to the National Practitioner Data Bank.

“Expressing concern about the hospital, as Dr. Rao did in an appropriate manner, must be considered fully protected speech at the core of First Amendment protections, states AAPS in a brief amicus curie. “There are no restraints on the runaway self-enrichment by hospital administrators…. The First Amendment is the only ‘check and balance’ against hospitals that still does exist.”

Hospitals may have a strong interest in eliminating physicians in order to set an example for others not to criticize the administration, AAPS notes. “Nearly 25% of physicians who told their hospital about their concerns with patient care suffered threats to their jobs in one study.”

The brief is posted at http://bit.ly/WKPLwn.


Off-Label Drug Use

Amgen has been ordered to pay $762 million to resolve civil and criminal charges related to marketing of Aranesp and other drugs for off-label uses or doses not approved by the FDA. A corporate integrity agreement (CIA) that is part of the settlement is intended to hold executives and board members accountable in the event of future problems (BNA’s HCFR 1/9/13).

Pfizer will pay 33 states $42.9 million to settle allegations concerning illegal promotions, including practices in promoting Lyrica for off-label use in neuropathy and partial seizures (ibid.).

Pfizer will also pay $55 million for Wyeth’s alleged off-label promotion of Protonix for symptoms of gastroesophageal reflux without endoscopy demonstrating erosive esophagitis (ibid.).

The Caronia case (AAPS News, January 2013) may eventually have an impact on the FDA, which generally disregards the First Amendment in its policies (HCFR 12/12/12).


Enforcement Highlights

Recovery Period for Overpayments Extended to 5 Years. The “fiscal cliff” bill extended the statute of limitations for recovering Medicare overpayments from 3 to 5 years, greatly increasing providers’ burdens (HCFR 1/9/13).

Doctor Gets 20 Years, Office Manager 3. Dr. Meera Sachdeva pleaded guilty to fraud counts related to billing for chemotherapy drugs (ibid.).

N.C. Hospital Pays $8 Million. WakeMed settled charges for billing for in-patient stays involving cardiac treatments when they actually were out-patient visits. The hospital claims it misinterpreted billing rules (ibid.).

Heart Center Pays $4.4 Million for Unnecessary Treatment. According to a spokesman for Northern Ohio Heart Center, the settlement concerns whether Medicare covered procedures done 6 to 10 years ago that were considered cutting edge at the time. The qui tam relator will receive $660,859. The Dept. of Justice says that such False Claims Act cases have brought in $13.8 billion since 2009 (ibid.).


SEIU Sues Over Flu Vaccine Mandate

SEIU Healthcare Employees District 1199 has sued for declaratory and injunctive relief from the Rhode Island Department of Health requirement that all workers receive influenza vaccine or wear a surgical mask during all patient encounters.

The complaint cites lack of scientific evidence of worker-to-patient transmission; relative ineffectiveness of vaccine; and civil rights and ethical considerations.

“Forcing nurses and other health care workers to become nonconsenting patients—even for a flu shot—undermines the consensual relationship of the health care relationship,” states SEIU. It can “foment an adversarial relationship that can weaken trust.” Further, it “will likely confuse the public who will ask that if health care workers won’t voluntarily take the...vaccine, why should they” (http://tinyurl.com/anjeycs).

The Jacobson precedent for mandatory vaccination in smallpox is now more than 100 years old. Case law since then suggests that the right to refuse medical treatment is rightly framed as a liberty interest under the Fourteenth Amendment. If this a fundamental right, then the Court may apply a standard of strict scrutiny in future cases, rather than the permissible rational basis test. At least some compulsory vaccination requirements might be overturned under this standard (Richins C. J Legal Med 2011;32:409-447).


HIPAA and Violence

Families can provide the early-warning signal for troubled behavior that may precede an explosion of violence. But the Health Insurance Portability and Accountability Act (HIPAA), which does so much to obliterate confidentiality, “protects privacy” by preventing professionals from contacting family members without the patient’s consent. “Patient protections have become rigid rules excluding families from patient care and exceeding common sense,” writes Lloyd Sederer of the New York State Office of Mental Health. He gives several examples of situations in which the historical information from family members could have enabled early intervention (WSJ 1/12/13).


Correspondence

Fee for Service Means Ruin? A fixed-price (capitated) snowplowing model shows how we could fix the FFS medical payment system that is allegedly causing the spiraling federal deficit, stagnating wages, and double-digit increases in insurance premiums, according to wealth manager Anthony J. Ogarek (Buffalo News 2/11/12). Apparently, he views the $2,000 flat fee per winter, for plowing the driveway whenever the snow accumulates more than 4 inches, as a good deal—although in 2012 he might have only had to pay $200 under FFS. He even proposes that companies might make more money by breaking people’s things, then charging to repair them! He perfectly describes the disconnect between buyers and sellers that has occurred in medicine, owing to third-party payment, but does not recognize that as the problem. With blinders firmly in place, he, like so many reformers, sees no option for patients to choose how much, and what type of medical care, they want.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


Crony Capitalism Will Fail. “Businessmen” that have made their millions through government contracts are nothing more than fascists as they lobby for the stolen funds to sustain their “public-private partnership.” Though intensely ingrained in the medical business, their footing is precarious, as the source of their funding is unstable. True free markets raising their heads from the mud are devastating even to the crony’s “flagship” facilities. As more physicians and facilities display their prices, the tactics and true colors of the fascist conglomerates will become clear. I believe the medical-industrial complex will fall like the Berlin Wall. The free market, with its creative destruction, will once again bring to ruin those who richly deserve it.
G. Keith Smith, M.D., Oklahoma City, OK - http://SurgeryCenterOK.com


“We.” In his second inaugural address, Obama dared to put himself in the same league as our Founders. Despite 4 years of disregard for them, he quoted our founding documents, and attested to their significance. He mentioned “Republic” once. Five times, he said “we the people.” He used “we” 86 times, perhaps in response to reports of how often he has tended to say “I.” The longer he went on, the more I thought he meant “we the government.”
Twila Brase, Citizens’ Council for Health Freedom - http://www.cchfreedom.org/


Ethics and Conflicts. Over thousands of years, the prime directive in medicine has been the interest of the patient. The interest of the physician in sustaining himself and his family was secondary, and society, tertiary. In mid-20th century, focus shifted to the concerns of employer-sponsored third-party payers. In certain empires in history, like Nazi Germany, the state’s interests were primary, as in Plato’s Republic. Resources were devoted to the workers, rather than the elderly, very young, critically ill, or those who were considered genetically inferior. Now, on the foundation of Medicare and Medicaid, we have ObamaCare. Society’s interests come first, and the patient-physician relationship is destroyed. This causes an insurmountable conflict of interest for physicians sworn to uphold the Oath of Hippocrates. Ethical care is possible only with a return to direct patient payment.
Craig Wax, D.O., Mullica Hill, NJ - https://ip4pi.wordpress.com/


Exchanges Will Not Work. Common sense tells us that Obama Exchanges cannot work. They are counter to stakeholders’ interests; they will be unmanageable; costs will be uncontrollable; they will lead to waste, fraud, and abuse. As Sarah Kliff writes in the Washington Post, the biggest challenge will be figuring out who is eligible for what. Different family members may be eligible for different programs. A state can’t figure out how much an individual earns without pinging a federal data hub that does not yet exist. There is no federal agency that can determine a person’s current income. It takes the IRS at least a year and a quarter to determine last year’s income. The Exchanges will do nothing to correct the stakeholders’ taking advantage of the system.
Stanley Feld, M.D., Dallas, TX


ObamaCare’s Fiscal Cliff. In the standoff over the “fiscal cliff,” all the emphasis was on the Bush tax cuts. There was no discussion about the ObamaCare tax increases. The burden of more than $250 billion over 10 years will hit those who need services for special-needs children; those with extraordinary medical expenses; every small business and every individual who buys insurance in the commercial market; the chronically ill; and more. Obama’s claim that he would protect the middle class against tax increases went unchallenged by Republicans or mainstream media.
John Goodman, Ph.D., National Center for Policy Analysis - http://healthblog.ncpa.org/


Navigating ObamaCare Rules. I am completely baffled on reading the Kaiser Family Foundation brief. A few notable items: “People who would have to pay more than 8 percent of family income for coverage are excused from the requirement to have health insurance because the cost is deemed unaffordable.” It doesn’t explain 8% of what. But 8% of $100,000 is only $8,000. Good luck finding a family policy for $8,000 under this law. Also, none of the requirements, e.g. limits on out-of-pocket spending, apply to Medicare.
Greg Scandlen, Waynesboro, PA- http://healthblog.ncpa.org/navigating-the-obamacare-rules/