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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 65, No. 4 April 2009


The defining issue for Americans is freedom: not equality, efficiency, quality, power, security or even prosperity. Freedom, Henry Grady Weaver's "mainspring of human prog-ress" did lead to unprecedented wealth, but it was not for wealth that early American settlers left behind a relatively safe and comfortable life to face a wilderness. They fled tyranny and sought the freedom to worship and to live according to their conscience, and to follow their own dreams.

The word "freedom" occurs but once in Barack Obama's booklet, A New Era of Responsibility: Renewing America's Promise it's what American troops are defending. America's "legacy," defined by Obama, is "misplaced priorities" not freedom. The government must "lead the way" not individual Americans. While "choice" occurs 14 times, three as "tough choices," Obama has already started the process of overturning the Provider Conscience Clause, which defends the freedom of physicians not to be compelled to participate in actions they believe to be unethical or harmful.

Government Supervision Guaranteed

Stating it was time to "boldly" rebuild the nation's "foundation," the economy's Architect-in-Chief released a budget that was not just a budget, but a "blueprint for our future" (Daniel Henninger, "A Radical Presidency," Wall St J 2/26/09). It will work, Obama says, in "dramatic ways that will upset the status quo" (AP 3/1/09). It includes a $630 billion "down payment" on fundamental health care reform.

Fixing the economy demands immediate health care reform, as "skyrocketing health-care costs have threatened the stability of families, businesses, and our economy as a whole," write Senators Baucus and Kennedy (Wall St J 2/26/09).

After Daschle's fall, Ezekiel Emanuel, M.D., brother of White House chief of staff Rahm Emanuel, is a rising star. "Health Care Zeke" will set priorities. As chairman of the bioethics department at the NIH, he focused on resource alloca- tion rationing, as in a pandemic (Science 2006;312:854- 855). In his 1992 book The Ends of Human Life: Medical Ethics in a Liberal Polity, he describes his ideology as "comm- unitarian."

Emanuel's recent book Healthcare, Guaranteed: a Simple, Secure Solution for America, an expansion of an earlier article with Victor Fuchs (N Engl J Med 2005;352:1255- 1260), proposes vouchers for 100% of Americans to purchase the federally approved "standard" health plan of their choice. Receipts from a dedicated value-added tax (VAT) would set the global budget. As in Daschle's plan, a Federal Health Board modeled on the Federal Reserve system, and an institute to assess the value of various treatments would oversee it all.

The key objective: "fragmented care must be replaced by coordinated care." Our present nonsystem had no designer. It is "chaotic," "unstable," "driven by thousands of small physician practices,...a remnant of the horse-and-buggy era, ill-suited to the twenty-first century." It lacks oversight of physicians Lyndon Johnson had to promise that Medicare and Medicaid would not interfere with physicians' decision-making authority in order to get the programs passed.

Most interestingly, Emanuel opposes single payer because it would lock in a fee-for-service system and make it impossible to change the way care is delivered. Also, extensive monitoring would be impossible if administrative costs were limited to 3 4%. There would be queues, and physicians in private practice would feel obligated to help their own patients!

The problem, in a word, is freedom. And one big obstacle to sweeping changes is the James Madison Rule of Government: checks and balances. When the short window of opportunity opens, reform must be rammed through before the losers can mobilize to thwart it. Never mind the devilish details: "God is in the essentials!" proclaims Fuchs in the foreword.

We Are All Socialists Now

This title appeared on the cover of the Feb 16 issue of Newsweek magazine, with the Communist handshake symbol. As the lead article noted, the share of American GDP spent by government is now only 8 points below that in France.

"[T]he socialist bogey-mantra has made a full-scale return after a long stretch of relative dormancy," writes Mark Leibovich (NY Times 3/1/09). But now that the horrors of Communism have been largely forgotten, "it is a less potent slam than it once was."

Freedom vs. Coercion

The people's decision "will determine the ultimate fate of Freedom and Truth in this Nation," wrote the AMA in 1950, on an effort to pass compulsory national health insurance. That would be "the most sweeping attempt yet made in this country toward central control of the personal lives of Americans" (pamphlet titled "The Voluntary Way Is the American Way").

"The only guarantee...is guarantee of a new payroll tax the eventual amount unpredictable," the AMA warned.

To sacrifice freedom to authority in government-controlled medicine "borrowing the unsuccessful systems of foreign countries" would be the "greatest error in all history." Noting that Lenin had proclaimed socialized medicine to be the "keystone in the arch of the Socialist State," other areas of American life might soon be socialized also, the AMA wrote.

Advocates, then as now, used "distorted evidence, juggled statistics, and false logic." Reaching out to patients with the facts, physicians played a major role in defeating socialized medicine. The threat that they would refuse to participate in Medicare won the "guarantees" of physician autonomy.

Where do physicians stand on freedom today?

The "Reserve for Health Reform"

The Obama budget proposes to pay for the $630 billion "down payment" on reform with $318 billion in new revenues from taxing the "wealthy," and the rest in "savings": $20.5 billion from "aligning incentives toward quality," $287.4 from "promoting efficiency/accountability"; and $8.1 billion from "encouraging shared responsibility" (Obama, op. cit.). This translates to: competitive bidding for Medicare Advantage plans; increased drug- company rebates for drugs sold to Medicaid patients; and flat fees for first admission and 30-day follow-up for Medicare patients, to avoid payment for readmissions (Washington Post 2/25/09).


Distorted Evidence, Juggled Statistics, False Logic

Obama asserts that medical costs cause a bankruptcy in America every 30 seconds. That would be 1,051,200 per year. The total number in 2007 was 822,590, of which 5% were due to medical costs, according to a Univ. of California study (CPR #167, 2/25/09). It is not the AMA that has disputed such figures (see AAPS News, October 2008). At the Mar 5 Health Care Summit, AMA President Nancy Nielsen agreed that health reform is the "linchpin of economic recovery."

Obama alleges that premiums have increased four times faster than wages in the past 8 years. Actually, they have stabilized in the past 5 years at a 6% increase, while wages increased 4%, notes Greg Scandlen. Moreover, companies adopting consumer- directed coverage are seeing premiums increase at a slower rate than wages or inflation (CPR #167).

Obama declares that the cost of health insurance is a major reason for small businesses to fail and corporations to ship jobs overseas. Actually, notes Greg Scandlen, it's a major reason for business to stop offering coverage. Moving abroad has more to do with taxes, regulations, and wages (ibid.).

Nielsen said that doctors resist government control, but if the specialty societies write the protocols, that is not government control. The AMA is "here to be partners."


Everybody In, Nobody Out

If everybody is not in the system, reform will fail, said Steven Udvarhelyi of Independence Blue Cross, warning against allowing "opting out" provisions for business or individuals.

"Falling short of 100% is unacceptable," states Emanuel, although he would allow the "rich" to buy a "platinum" plan, with after-tax dollars, after everybody had a plan as good as congressmen now have. He quotes Jonathan Gruber's analogy that well-insured Americans are like people on a comfortable boat in the middle of the lake. Someone says, "Okay, everybody off the boat. We'll move you onto a new boat with the uninsured and Medicaid recipients, but don't worry, it'll be nice enough." Emanuel rejects Massachusetts-style mandates or other ways of plugging the cracks to avoid dealing with this problem. Apparently, he wants to blow up the boat.


"There is nothing more difficult to accomplish...than to initiate a new order of things. The reformer has enemies in all those who profit from the old order and only lukewarm defenders in all those who would profit from the new order."
Niccolo Machiavelli, quoted by Victor Fuchs,
"Health Care Reform Why So Much Talk and So Little Action"
(N Engl J Med 2009;360:208-209)



AAPS Principles of Medical Ethics state: "4. The physician should not dispose of his services under terms or conditions which tend to interfere with or impair the free and complete exercise of his medical judgment and skill or tend to cause a deterioration of the quality of medical care."

In 1965, many physicians recognized that Medicare would lead to such conditions, and that Medicare could be stopped if physicians declined to participate. The AMA board, however, committed to a policy of "constructive advice and guidance." Although the threat of nonparticipation dominated the June House of Delegates meeting, no action was taken. Therefore, a special meeting was called in October by petition of delegates from state associations, led by Francis Davis, M.D.

The anger surging through the House was expressed by E.S. Rifner, M.D., of Indiana (Frank Campion, The AMA and U.S. Health Policy Since 1940): "We feel let down, bewildered, shocked and dismayed as we attempt to assess the probable damage of the collusion between the ruthless power of Federal Government and organized medicine."

The House applauded, though Rifner had virtually accused the AMA leadership of treason. However, outside legal counsel A. Leslie Hodson said that a resolution recommending that physicians refuse to see Medicare patients would violate antitrust law. AMA President Appel said that even if legal the resolution would be "unwise." Americans expected the doctors to be good losers. Though the president got a chilling reception, the next day delegates endorsed a policy of working with HEW. Dr. Davis reports that the bylaws were changed so that a special session could never again be called.

Note: Physicians do not need to refuse to see patients, only to decline to accept government or third- party payment.


Bipartisanship at the Health Care Summit

At the Summit breakout session chaired by Zeke Emanuel, Sen. Robert Bennett (R-UT) said he was a cosponsor of the Wyden Healthy Americans Act (AAPS News, February 2007). He said change will be "wrenching" if we do what we need to do. But Republicans need to "get over their opposition to universal coverage," join hands with Democrats, and, "like Butch and Sundance," jump off the cliff together. [Recall that Butch Cassidy and the Sundance Kit were bank/train robbers who landed in the river and lived to steal again.]

Reactions to the summit (video, press release, and member comments) are at www.aapsonline.org. Post your views also!


AAPS Calendar

Jun 5-6, 2009. Workshop, board meeting, Dallas, TX.
Sep 30-Oct 3, 2009. 66th annual meeting, Nashville, TN.
Sep 15-18, 2010. 67th annual meeting, Salt Lake City, UT.

Obama Proposes to Rescind Conscience Clause

Because of reports that medical centers and staff were under increasing pressure to perform abortions despite federal laws prohibiting discrimination against those who refused, the Bush Administration issued a regulation requiring agencies to certify compliance or risk losing federal funds.

AAPS comments supporting the "Provider Conscience Clause," posted at www. aapsonline.org/ethics/foc.php, state: "Medical professionals should not fear the loss of their ability to practice their profession if they decline to participate in procedures...they believe to be harmful or unethical."

Some state officials, Planned Parenthood, and the National Family Planning and Reproductive Health Association filed several lawsuits seeking to overturn the regulations. AAPS filed suit to intervene to defend the rules, emphasizing the broader context of physicians' conscientious objection to many procedures beyond abortion and sterilization, for both religious and other reasons, such as involuntary psychiatric treatment.

Just before the government's response was due, the Obama Administration filed a proposed rule for completely rescinding the Provider Conscience Clause. A 30-day public comment period opened Mar 5. The Department of HHS intends to "review this regulation to ensure its consistency with current Administration policy." Concerns include access to services and disproportionate impact on underserved areas. Apparently, the "right" to certain services implies a duty for professionals to provide them, despite their objections.


"Celestial Fire" vs. Duty to Deliver or Withhold

Among the "Rules of Civility" studied by George Washington was: "Labor to keep alive in your breast that little spark of celestial fire called conscience" the innate understanding of moral right and wrong that is assumed in the Declaration of Independence and is the foundation of our nation.

Extinguishing that spark, writes Mary Davenport, M.D., plants the seeds for mass liquidation of the largest generational cohort in American history, the Baby Boomers. They will be the first Americans to be denied available, effective life-saving treatment on the basis of cost (American Thinker 3/3/09).

The concept of conscience is mocked, writes Davenport, by University of Wisconsin law professor R. Alta Charo, J.D., in her article "The Celestial Fire of Conscience Refusing to Deliver Medical Care" (N Engl J Med 2005;352:2471-2473).

Charo calls abstaining from counseling or referring for certain procedures a "privilege." Those who want to abide by the demands of an outlier conscience should be willing to pay a price. "To what extent do professionals have a collective duty to ensure that their profession provides nondiscriminatory access to all professional services?" A personal act of conscience might actually be "an attempt at cultural conquest." Against the dangers of "unfettered personal autonomy," the collective must be guarded by government and "major" professional societies.


Physician-assisted Suicide

By a 58% to 42% majority, Washington State residents passed the Death with Dignity Act based on the 1997 Oregon law. Despite concern that none of the 85 patients receiving lethal prescriptions in 2007 had a psychiatric referral, "Oregon's well-documented experiences are an invaluable resource," writes Robert Steinbrook, M.D. (N Engl J Med 2008;359:2513-2515).

Others disagree with that statement. The Oregon Public Health Division (OPHD) "does not collect the information it would need to effectively monitor the law and...acts as the defender of the law rather than as the protector of the welfare of terminally ill patients," write Herbert Hendin, M.D., and Kathleen Foley, M.D. (IL&M 2008;24:121-145).

There are no penalties for noncompliance with guidelines, and "OPHD has not addressed the issue of non-reporting." Thus, conclusions are based on limited data.

One criterion for eligibility is a life expectancy less than 6 months. The 9-year data suggest that a significant number of patients live longer than that. OPHD, however, does not indicate the time interval between the prescription and death, precluding evaluation of the reliability of prognosis, and hiding from the public the uncertainty of prediction.

There is no evidence substantiating the allegation that patients requesting lethal prescriptions were receiving adequate palliative care. Compassion in Dying executives have indicated that the organization has been involved in 75% of cases, perhaps exerting undue influence. Patients may not have adequate counseling for making an informed choice. The Oregon guidebook stresses that mental health evaluation should focus on competence, and that the presence of depression does not necessarily mean incompetence.


Rationing in Oregon and Britain Disfavors Life

Oregon radically altered its rationing priorities between 2002 and 2009. Life-saving procedures have been downgraded, and more routine or preventive care moved to the top. Severe/ moderate head injury moved from #1 to #101, testicular torsion from #8 to #261, and ruptured spleen from #13 to #178. Bariatric surgery is #33; abortion #41; treating hemorrhage from a miscarriage #68. Only the first 503 of 680 listed procedures are paid for (Linda Gorman, www.ncpa.org/pub/ba/ba645).

Gorman also notes that the NHS National Institute for Clinical Excellence (NICE) rejected the advice of its Citizens Council, of whom 21/27 favored the "rule of rescue." Rather than giving a high priority to preventing imminent death, NICE must ensure cost effectiveness and the fairest distribution of health resources within society as a whole (ibid.).


Surprises in the "Stimulus" Package

Whistleblower Protection. The American Recovery and Reinvestment Act includes whistleblower protection for employees who reveal violations of the law related to stimulus funds. The language is broadly written so that it also protects whistleblowers who reveal fraud in Medicare or Medicaid, which receive stimulus funds (BNA's HCFR 2/25/09).

RAT Board. Virtually unnoticed was the Recovery Accountability and Transparency Board, which would oversee inspectors general. The RAT Board would have the authority to ask "that an inspector general conduct or refrain from conducting an audit or investigation." According to Sen. Charles Grassley (R-IA), the board "strikes at the heart of the independence of inspectors general." It could dampen the aggressiveness with which they pursue something that might make the incumbent administration look bad. Grassley learned of the provision hours before the vote. It was "snuck in," he said. Someone said the Obama Administration wanted it, but no one has claimed paternity (DC Examiner 2/19/09).


Redistribution for Doctors. It looks as though Baucus and other reform proposals will have a mythical "cost neutral" face, whereby money will be taken from those "overpaid" specialists and proceduralists, and redistributed to primary-care physicians, who are underpaid because of government price setting.

The "medical home" is another gimmick, like "primary- care gatekeepers" and capitation, to lure still more primary-care physicians into supporting socialism. Government-supervised "evidence-based medicine" will be mandatory for those in the medical-home model.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


The AMA Agenda. The AMA plan is the Obama plan. It has been carefully built that way in the House of Delegates and at the board of trustees level for the past 5 years. The board has chosen not to push for protecting the practice of private medicine through balance billing, labeling it politically untenable. But they have gotten what they really wanted: a coveted seat at the table at Obama's health-care prom.

While it seems encouraging that there is talk of paying doctors the $300 billion due them over the next 10 years in Medicare, the key line is this: "Medicare and the country need to move toward a system in which doctors face better incentives for high-quality care rather than simply more care." That means government will withhold payment if you don't comply with their rationing protocols. I predict payments to physicians will be cut close to 40% over the next 10 years.
David McKalip, M.D., St. Petersburg, FL


AAFP Advocacy. The American Academy of Family Physicians has been advocating for nationalized medicine for a long time. Browse the list of 403 policy statements on their website. They think that group visits are "one component of the system changes needed for the new model of care." The language suggests they are completely captured by government control folks: "stakeholders," "social justice," "fairness," "delivery systems," and pluralistic buzz words abound. There is no evidence backing their "medical home" idea a campaign to raise their pay, which government control will crush.
Linda Gorman, Ph.D., Independence Institute, Golden, CO


What's Going On? If I were a conspiracy theorist (I'm not), I'd think that virtually everything that's happening is a secret plot to destroy physician autonomy. I think we've taken many small steps, mostly without underlying intent. If patients really understood the forces at work, they would stand up in unison to try to protect physician autonomy. But they don't.
Donna Kinney, C.P.A., Texas Medical Assn


TPP Is Evil. I don't know about a "secret plot," but when I was with the Blues, they were very clear (not secret) that the whole problem was the physicians.

Remember that third-party payment (TPP) is different from insurance. Insurance is a two-party contract between the insurer and the insured. One pays a premium so the other will pay a benefit when a loss occurs. This allows the patient to have a direct relationship with his doctor. TPP gets in the way of that relationship. The doctor is responsible to the insurance company, not to the patient. The doctor is paid by the insurer, not by the patient. High-cost services need to be paid by insurance. They do not need to be covered by TPP. TPP is an abomination started by Blue Cross in the 1930s. It never existed before, and it is the biggest mistake ever made in medicine. It is the source of every problem in medicine.
Greg Scandlen, Heartland Institute


Opt Out. If you don't accept any third-party payments, you won't have to balance bill or figure out CPT codes; you won't have accounts receivable; you'll be paid fairly; your patient/ physician relationships will improve; you will save administrative overhead; patients will come because of you, not because Blue Cross sent them; patients will enjoy confidentiality....
Ralph Weber, C.L.U., Paso Robles, CA


Will Doctors Be Drones, or Opt Out? Many will remain in the system and use every possible loophole, then retire, perhaps decades early, to be replaced by a less efficient system of physicians with an employee 9-to-5 mentality, supplemented by nurses and foreign physicians. The only physician association I know of that fights this "inevitability" is AAPS.
Frank Timmins, Dallas, TX


Rush to Treatment Flawed. To the Wall St J (3/5/09):

[The op-ed by Sen. Baucus and Sen. Kennedy creates] a sense of crisis in order to push through (without time for debate, if possible) a radical takeover of the system....

Putting the government fully in charge...will lead to spiraling costs, loss of quality, rationing by "cost effectiveness," long waits for service, and the destruction of the greatest health-care system the world has ever known.
Richard Amerling, M.D., New York, NY


...At its core, health care is a personal relationship between patients and doctors, but our current system relies on third-party decision-making that results in lack of accountability, flexibility and efficiency. Quality, affordable health care can and should be available to all Americans, but the path to that goal does not lie through a Washington bureaucracy.
Rep. Tom Price, M.D. (R-GA)