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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
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Volume 52, No. 4 April 1996

``COVERAGE'': A FAUSTIAN BARGAIN

``You all know,'' said the Guide in The Pilgrim's Regress by C.S. Lewis, ``that security is mortals' greatest enemy.''

The desire for security is exploited in the drive to bring about ``universal coverage,'' starting with the most vulnerable.

``There are children in this state who are not covered,'' declared the president of a county medical society. His passionate concern about the children, no doubt well-intentioned, superseded any possible worry about kitchen-door Clinton Care via proposed state legislation-even though this man said that he hated the Clinton Plan.

But what if this sacrosanct ``coverage'' is actually harmful to children as well as all other mortals? What if the current crisis is due not to the 15% who are not covered, but to the 85% who are ``insured''?

True insurance, including sickness insurance, is a voluntary means of sharing the risk of financial loss due to improbable misfortunes. The business of insurance is the accurate pricing of risk.

Present-day ``health insurance coverage'' largely constitutes socialized (and thus mandatory) redistribution of wealth. Through mandated benefits and other restrictions on private insurance contracts, favored groups force others to bear costs they would not willingly incur, for benefits they do not need. Tax-financed insurance is simply socialized medicine with a private administrator.

Unlike voluntary charity or mercy, which blesses both him who gives and him who takes, socialism eventually curses those who at first appear to benefit, as well as those obligated to provide, by abrogating everyone's basic rights. (For a useful and relevant perspective on how the institution of slavery harmed the white race as much as the Negro, see Up From Slavery by Booker T. Washington.)

In a 1976 essay commissioned by Time, Dr. John H. Knowles, President of the Rockefeller Foundation, reviewed the rise of taxpayer-funded insurance, concluding that ``the cost of sloth, gluttony, alcoholic overuse, reckless driving, sexual intemperance, and smoking is now a national, not an individual responsibility.'' (Taxpayer-subsidized, employer-purchased first-dollar coverage or prepayment for consumption leads to the same conundrum.) Further, as Knowles stated in Daedalus: ``the idea of a `right' to health should be replaced by the idea of an individual moral obligation to preserve one's own health-a public duty, if you will.''

What used to be called morality is now in the province of the updated and expanded version of ``public health,'' as Jacob Sullum explains in the January, 1996, issue of Reason. What used to be mere vice becomes a crime as soon as the perpetrator is relieved of bearing its full consequences and is allowed to impose some of the cost on his neighbor.

In a high-crime environment, people willingly relinquish their rights in exchange for a modicum of security. The right to privacy is an early casualty, but by no means the last or even the most serious. (See the March issue of AAPS News

and written testimony presented by AAPS to the Maryland House of Delegates in this month's Legislative Supplement.)

Another casualty is freedom of speech. Various ``gag clauses'' commonly found in HMO provider contracts were collected by journalist Robert Pear (NY Times 12/22/95). Even if such wording is outlawed, physicians can be constrained from giving their best advice by less formal means. But even if physicians may speak freely, they may be unable to practice according to their best judgment.

In a 1996 opinion adverse to Robert Carlen, M.D. (Carlen v. Dept of Health Services of Suffolk County, US District Ct for the Eastern District of NY, CV 93-0187), Judge Wexler noted Dr. Carlen's concerns about following orders from administrative superiors in treating prisoners (see AAPS News June 1991). ``His medical license and reputation would be at risk for participating as a joint tortfeaser [with defendants], especially because he was not permitted to state his disagreements on the official medical records.'' Nonetheless, Wexler ruled that this was not sufficient to assert a claim for denial of equal protection of the laws because ``plaintiff does not allege that he was treated differently from other similarly situated County- employed physicians.''

Governmental and private entities have now developed at least 350 ``practice guidelines'' to assure that physicians are treated equally in being deprived of their professional autonomy. The guidelines also permit delegation of triage (which in wartime is performed by the most experienced surgeon) to nurses and other nonphysicians.

While physicians are the first subjects of constraints, the pressure to control the behavior and attitudes of patients will also continue to mount as costs inevitably climb.

In answer, advocates of ``coverage'' shed tears. ``Children First'' is the title of their plan-but it doesn't mean first into the lifeboats. They will actually be first into the jaws of the HMO; if they're lucky, it will be of the herbivorous, rather than the omnivorous or carnivorous type. (This was the classification presented by cardiologist-turned-executive Jacque J. Sokolov in February, 1996, as he explained to physicians how to profit from arbitrage as they develop AHPs.)

These advocates are modern alchemists (Access to Energy 3/96), capable of turning tears into gold, as for HMOs with $12 billion in the bank. We've heard their line before.

``We shall banish want, we shall banish fear, the essence of our movement is human welfare...Rooted in a fuller life for every citizen, from childhood to old age,...'' promised Adolf Hitler. He did provide universal coverage-at a price reckoned in human blood, like all bargains with Mephistopheles.


A Lampoon Is Worth 10,000 Harpoons

A set of 13 Huntoon Lampoons about managed care, suitable for copying for bulletin boards, waiting rooms, physicians' mailboxes, etc. is available for $5.

Michigan Board Refuses to Give Ruling

On Nov. 1, 1995, AAPS requested the Michigan Board of Medicine to issue a declaratory ruling on whether or not a physical examination was required for each and every office visit coded as 99215, 99214, 99213, 99212, 99211 or, if in 1990, as 90070, 90060, 90050, or 90040. At its January 10, 1996, meeting, the Board voted 13 to 1 to decline to give the ruling. Mr. Edgardo P‚rez-DeL‚on spent one year in jail for submitting claims for office visits during which medical advice was given but no physical examination was performed. Under a new measure recently signed into law by Governor Engler, a person convicted of insurance fraud would be subject to up to four years in prison and/or a $50,000 fine (BNA's Health Care Policy Report 2/5/96). Thus, a definition of what constitutes fraud is increasingly urgent, and AAPS will continue to seek clarification.

Proposed Ban on Capitation in Oregon

Oregon ophthalmologist Gordon Miller, M.D., of Salem, is collecting signatures for a ballot initiative that would outlaw the use of capitation by insurance carriers for compensating medical professionals. The attempt to send capitation to the guillotine is expected to provoke a ``bloodbath.''

The HMO industry considers recent public outcry over incentives to withhold care a ``media circus.''

``Despite its effectiveness in aligning incentives, improving quality, and reducing the cost of care, capitation has become a new rallying point for those who see managed care as a threat to consumers-just as one-day maternity stays were in 1995'' (Capitation Management Report, Feb, 1996). PR advice to managed-care advocates: ``Providers can help health plans shine up capitation's image by offering themselves for media interviews-but let the payer do the dirty work. HMOs have a huge incentive to keep capitation as a way of life.''

Oregon physicians have generally not been paid by capitation, but according to a publication of the Medical Society of Metropolitan Portland, the ``big Blues capitation train is about set to leave the station, and before year-end, physician who want to treat HMO Oregon patients in the future had better be aboard.''

``I guarantee if they're not with a group or MSO by January 1, 1998, they ain't (sic.) going to be in our system,'' said Roger Lyman, CEO of Blue Cross and Blue Shield's HMO Oregon. He believes that independent doctors are ``not long for this world.'' But even those who sign up may not ``make the cut.''

Dr. Miller, who previously sponsored a successful initiative campaign on campaign finance, stated that ``I draw the line at withholding care in order to earn more money.'' He is seeking both moral and financial support for his signature drive. (For information, call 503-370-1318.)

AAPS has not officially given the measure an unqualified endorsement (it has a few objectionable features, such as using revocation of licensure as a penalty), but congratulates Dr. Miller for bringing this issue into the public debate.

Alan Keyes Not Arrested

Illustrating the late Petr Beckmann's observation that ``everyone has freedom of speech as long as not many people are listening,'' Presidential candidate Alan Keyes got a free ride around Atlanta in a police car. When WSB-TV barred him from participating in a debate, his supporters chanted ``Let Him Speak'' outside the building, according to Bert Loftman, M.D., of Atlanta. Keyes was handcuffed, forced into a police car, and eventually dropped off near a public telephone. Nevertheless, he was later told that he had not really been arrested. Videotapes are still available of Alan Keyes' talk at the 1995 annual meeting of AAPS. The cost is $20.

Nuggets

The Ponzi State. Charles Ponzi was a genius, with a longer-term view than most criminals: he delivered on his promises, at first. When the scheme started to fall apart, the early suckers rallied to support him.

The Ponzi state (welfare state) will also fail when taxpayers learn that its promises are worthless; it offers them only high taxes with no hope of big handouts (Quackgrass Press, Ste. #601, 105-150 Crowfoot Cr. NW, Calgary, AB T3G 3T2).

Iatros to Meet in Scotland. Call Dr. Tim J. Winning, Berato, Barrs Brae, Kilmacolm PA 13 4DE, Renfrewshire, Scotland, phone: 01505 874473 for information about the meeting scheduled from Thurs., Sept 26 until Sunday, Sept. 29, 1996. The theme is ``The 21st Century, Can Medicine Survive?''

The History of HMOs, by Cristina Rizza, M.D., Americans for Free Choice in Medicine, 1525 Superior Ave Suite 100, Newport Beach, CA 92663.

For Internet Surfers: AAPS: http://www.misnet.com/aaps and http://www.althouse.com/aaps.htm

Task Force Documents and AAPS v. Clinton on CD-ROM, 50,000 pages with every word indexed: a data mining resource. Call (800)635-1196 for information.


Medical Confidentiality in Maryland


by Andrew Schlafly, Esq

The Maryland law regarding disclosure of medical records presents a difficult legal challenge. Under Maryland case law, there does not appear to be a common law patient-physician privilege that would entitle patients to forbid the disclosure of their medical records. Rather, any rights which Maryland patients retain with respect to their medical records must derive either from Maryland statutory law or from federal or state constitutional law. As a Maryland Court held in Rubin v. Weissman, 59 Md. App. 392, 401-02, 475 A.2d 1235, 1239-40 (1984):

Communications made to a physician in his professional capacity by a patient are neither privileged under the common law of Maryland, nor have they been made so by statute. Robinson v. State, 59 Md. App. 392, 475 A.2d 1235, 249 Md. 200, 221, 238 A.2d 875 (1968); O'Brien v. State, 126 Md. 270, 284, 94 A. 1034 (1916); Stevens v. Barnhart, 45 Md. App. 289, 295-296, 412 A.2d 1292 (1980); Franklin v. State, 8 Md. App. 134, 141, 258 A.2d 767 (1969). Courts and Judicial Proceedings Article 9-109 establishes a limited privilege for patient-psychiatrist and patient-psychologist communications. As there is no common law patient-physician privilege, ``[i]t exists by legislative grant. . . .'' Bremer v. State, 18 Md. App. 291, 334, 307 A.2d 503 (1973).

Nevertheless, the physician-patient privilege has been long recognized by courts of English-speaking countries. Even though Maryland courts apparently do not recognize this privilege at its common law, the Maryland statutes and interpretations of the federal constitution have reaffirmed this basic right.

Maryland has enacted a series of statutory provisions which protect patients against disclosure of their medical records without their consent. Psychiatric patients enjoy special statutory protection against dissemination of their communications with their physicians, as reflected in the decision quoted above.

The Maryland Health-General Code Ann.  4-301, 4-302, 4- 303, 4-305, 4-306, 4-308, 4-309 (1995) (text available on request from AAPS) contains both good news and bad news. The goods news is that these provisions affirm the right of confidentiality of the patient to his or her medical records, and even recognize the right of the patient to forbid his or her physician from disclosing certain information. (See, e.g., id. 4- 302(c). The bad news is that these provisions allow disclosure ``[a]s otherwise provided by law,'' id.  4- 302(a)(2)(ii), which the Maryland legislature has apparently so provided. However, the force of this provision is somewhat mitigated by a ``good faith'' safe harbor for physicians: Section 4-308 allows any health care provider to withhold disclosure if he or she is acting in good faith.

While we have a statutory basis for asserting the right of a patient to avoid disclosure of his or her medical records, we may have an even stronger basis under the federal constitution. The Supreme Court has recognized a ``right to privacy'' by patients in their medical records. As a federal court in California recently declared (Soto v. City of Concord, 162 F.R.D. 603, 618 (N.D. Cal. 1995), footnote omitted):

The Supreme Court has recognized a limited privacy interest in the confidentiality of one's medical records, derived implicitly from the United States Constitution. Whalen v. Roe, 429 U.S. 589, 599-600, 51 L. Ed. 2d 64, 97 S. Ct. 869 (1977); Doe v. Attorney General of U.S., 941 F.2d 780, 795-96 (9th Cir. 1991) (establishing that information regarding a person's HIV status would fall within the ambit of the privacy protection afforded medical information); Caesar v. Mountanos, 542 F.2d 1064, 1067 n.9 (9th Cir. 1976), cert. denied, 430 U.S. 954, 51 L. Ed. 2d 804, 97 S. Ct. 1598 (1977) (holding that right to privacy encompasses doctor-patient and psychotherapist-patient relationship); Pagano v. Oroville Hosp., 145 F.R.D. at 695-98 (establishing that state constitutional right to privacy is consistent with federal constitution).

This constitutional right, recognized in California, can be asserted in Maryland as well. The Maryland Courts will apparently allow legislative derogations of the physician-patient privilege, but will probably interpret such legislation narrowly. The federal constitution imposes limitations on attempts by state legislatures to intrude into the privacy of patients.

Because of these legal considerations, patient ``non- consent'' language should be drafted in terms of ``privacy'' rather than ``patient-physician'' privilege. For patients who wish to withhold consent to disseminate their medical records, the following language is suggested:

I, _______________, hereby assert my constitutional right to privacy and expressly forbid my physician, and anyone acting under his or her control, from releasing any of my medical records to a third party without my express consent. In particular, I decline to consent to the release of my medical records for the purpose of entry into a computer database which may be accessed by third parties outside of the offices or hospitals utilized by my physicians.

Doctors Sue Western Ohio HMO

Physicians who founded a ``community-oriented and physician- directed'' non-profit HMO claim that their own money in the form of withheld fees was used to expand the subscriber base during an early period of deficits and thus solidify the corporation's financial hold over them. After a position of market dominance was secured, the corporation's deficits rapidly turned into multimillion dollar profits. Physicians' withheld fees were never returned; instead, they were allegedly conveyed to a third- party purchaser of the company, enhancing the value of shares purchased by insiders. Stock initially valued at $300,000 was soon sold for more than $13,000,000.

A class-action lawsuit, case number 98-2548, has been filed in Montgomery County, Ohio, by a number of physicians including AAPS members David Westbrock, M.D., and John Boyles, Jr., M.D., against Western Ohio Health Care Corporation, Western Ohio Foundation for Medical Care, and their directors. Plaintiffs ask for compensatory and punitive damages totalling more than $62.5 million. A trial is scheduled for April 15.

Dr. Westbrock believes the case is a ``national precedent,'' which will be ``very helpful in exposing the corruption and perversities of the current system.''

It takes more than a master to make a slave.

the Torah


Members' Page

Withholding. A study of 12 HMOs in New York City, reported in the February issue of the NY State Medical Society's News of New York, concluded that the shift in financial risk from HMOs to ``providers'' sometimes meant withholding care: subscribers either paid out of pocket for necessary medical care, or went without.

Some of the provider contracts allow the HMO to withhold up to 50% of fees. Who, besides a prostitute working for a pimp, would enter a contract like that? The study also found that many physicians said they usually got nothing back from the withholds. Some contracts (such as Aetna and Choice Care) allow HMOs to reduce payments to whatever they like whenever they like.

Rising even faster than enrollment are complaints. PruCare's complaints increased 658% as enrollment grew 70%. Also rising-even faster than doctors' and hospitals' expenses -are HMO's administrative costs.

On the very same page as these scathing revelations we find a summary of our State Medical Societies that are forming their own managed care networks. They haven't yet gotten the picture: it's not just managed-care companies, it's the managed-care concept that's bad. Our medical staff reportedly paid $7,000 for two one-hour pep talks on managed care, and the same ``consultants'' want $25,000 to ``help'' physicians group together to sign capitation agreements and form an integrated system. Then doctors are to pay to join-$32,000 initially and probably more later for actual operations. I think that some of these consultants could bring in a batch of tainted Kool-Aid, and some of the doctors would be willing to pay for the ``privilege'' of drinking it. Quite apart from the ethical issues, it's time for competency testing.

My advice to patients who are set on joining HMOs is that they learn to bake. Many patients who got sick while members of HMOs used bake sales to pay for their care.
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY

 

Unnecessary Service. To Medicare: I've been asked to certify that anesthesia was medically necessary in this particular case: an 84-year old man required a change in his pulse generator. It's the custom in Ozark, Alabama, to use anesthesia when we operate on patients, as making incisions without it is exceedingly painful. This custom seems to date all the way back to Queen Victoria receiving chloroform for her delivery....The art has developed to the point where we now feel that monitoring such items as heart rate, EGD, and oxygenation are also essential, especially in pacemaker-dependent patients who are having a procedure in which their pacemaker is temporarily disconnected and arrhythmias are exceedingly common. This is the standard of care in Ozark, Alabama. If this is not the standard of care in other areas, we would be happy to accept referrals of any patients who wish this high standard.
Edward R. Teitel, M.D., Ozark, AL

 

Managed Care Is Cannibalization of prior investments in medicine. Through adhesion contracts with doctors and hospitals, managed-care companies force economically unreasonable conditions upon ``providers'' who fear being left out if they don't sign up. Physicians and hospitals will survive, for a while, continuing to pay retail prices for their fixed overhead while absorbing catastrophic losses through ``capitation'' and receiving wholesale payment....It is entirely analogous to the ``leveraged buyout'' craze of the 1980s when solid, productive corporations were bought out for their cash flow, eventually creating massive debt where solid capital assets once existed.
Stephen Katz, M.D., Fairfield, CT

 

Can Patients Choose? Some people oppose Medical Savings Accounts on the grounds that patients can't be depended upon to make good economical choices. But I'm convinced from my work as a psychiatrist that people with average intelligence who are strongly motivated make better decisions than bright people who have little personal motivation. Furthermore, who has more right to make choices in a clinical situation than the patient in consultation with his physician?
James Pendleton, M.D., Abington, PA

 

The Crucial Test of Law. In The God of the Machine, Isabel Patterson wrote that well-meaning people often ignore the principle of individual freedom (except as applied to themselves). They become obsessed with fanatical zeal to improve mankind. ``It is at this point,'' she says, ``that the humanitarian sets up the guillotine.''

Good intentions are not enough to guide our destiny; fundamental principles must. Ask of any proposed law: what effect will it have on our unalienable rights. If it infringes on these rights, it must not pass. It may yet pass under the guise of administrative law. If it does, contest it!...Too often, under the assumption that the end justifies the means, those in power become infallible, their faith as devout and ardent as that of the ancient Aztec priest.
Anthony Orlandella, M.D., Dana Point, CA

 

AAPS Calendar

April 13. Freedom in Medicine seminar (see enclosure).
June 1. Board of Directors, Airport Marriott, St. Louis.
Oct 10-12. 53rd annual meeting, La Jolla, CA.


Legislative Alert

Statement on The Health Care Access and
Cost Commission (HCACC)
Medical Care Data Base Collection
Notice and Informed Consent

House Bills 1030, 1031, and 557
Maryland General Assembly, February 29, 1996

by Jane M. Orient, M.D.
Executive Director

AAPS is present here because Maryland is the first state in history to compel physicians to report to the government every time they see a patient.

This places physicians in the dilemma of whether to violate state law, or violate the Oath of Hippocrates.

The Oath of Hippocrates states:

``All that may come to my knowledge in the exercise of my profession..., which ought not to be spread abroad, I will keep secret and never reveal.''

The Oath further states that: ``I will prescribe regimen for the good of my patients according to my ability and my judgment and never do harm to anyone.''

AAPS opposes coercive data reporting to the government because:

1. Such disclosures violate patients' rights.

2. Such disclosures can be harmful, either through unauthorized disclosures or through the intended use of the data.

3. There is no compelling public interest served by collecting the data; rather the rights of the public are being sacrificed for private interests.

Any patient could be harmed by the disclosure of medical information. The fact that a patient saw a certain doctor, whether for hemorrhoids, or impotence, or a face lift, or premenstrual syndrome, or gonorrhea, or cancer, should not be spread abroad. Patients usually share such information reluctantly, and only because they hope to obtain relief, relying on the professional ethics of their physician.

Patients often consent to release information to their insurer, in return for third-party payment. Traditionally, they had to consent to release only that information necessary for processing their claim.

Under Maryland law, even if amended by exempting patients who pay directly, patients will have comprehensive information released to the state government as a condition either of obtaining treatment or of using any form of insurance. Disclosure is not likely to stop at a governmental agency, which presumably has some accountability to the public. Data also may be transferred to private special interests. Insurers and other ``risk-bearing'' entities have a financial stake in this information, which could enable them to gain a competitive advantage in bidding for managed-care contracts.

One example of such data transfer is that some states have granted to the Robert Wood Johnson Foundation a ``nonexclusive, irrevocable, perpetual, royalty-free license to use and to license others to use any and all data collected in connection with the grant.'' These states include New York, Kentucky, and Minnesota.

The data bank constitutes a serious intrusion into all patient-physician relationships in the state. Opponents of the amendment requiring patient consent have tacitly admitted to the fact that many will object to this intrusion. (They don't want to require consent because they think patients will not grant it once they know the government will have access to their records.) Is there a compelling state interest that might justify such a violation of individual rights?

Some believe that having medical records on a central computer would expedite treatment, especially in emergencies. Based on 25 years of clinical experience, I can testify that this is not the case. In a true emergency, the most important information is the history of what happened in the last hour or the last five minutes. This will not be in the record, even if there were time to read it. Patients with serious allergies should wear a wristband and not count on the availability of a computer. (What if their identification is lost or the computer is down?)

In most situations, the traditional methods of obtaining the old record work quite well. Even if the record cannot be found, the patient or family can usually supply the most important information. These interviews are indispensable for practicing good medicine because old records are not always accurate or the situation may have changed. In any case, the data required by Maryland are, at best, of minimal help to the clinician. The data set is not designed to answer scientific questions and is of no value for clinical research. It is, after all, derived from an insurance form whose purpose is to collect payment.

The Senate heard testimony from an emergency physician who stated the data bank would help him in the case of persons who frequent emergency room instead of having a regular physician and whose records are thus not available. However, spokesmen for the data commission testified that no personal identifiers would be in the data base! Thus, it would be useless to this physician.

Insurance interests testifying against a bill that would require managed-care entities to disclose information (they also testified for requiring patients to give information) stated that consumers' questions would be answered by the ``report cards'' that could be produced once the data bank was receiving comprehensive information. Consumers needed to know results, not incentives, they state. However, the data to be reported will not provide information about the seriousness of the patients' illnesses or the clinical outcomes. Hence, they will be useless for this purpose as well.

To see just how useless, legislators could look at a study that a witness specifically alluded to as supporting her position: a study of outcomes of patients with diabetes or hypertension. This study looked at a vast array of data on a well-defined population (which, by the way, deliberately excluded patients who were seriously ill). The data bank would contain hardly any of the needed measurements. It would be even less informative than the study, which came to the hardly surprising conclusion that patients who aren't very sick don't change much over a couple of years, regardless of their source of medical treatment. (See Journal of the American Medical Association 1995;274:1436-1444.)

Testimony by the executive director of the HCACC gave still more reason to be skeptical of the value of the data. If personal identifiers were to be stripped from the data set (as this official says he intends at this time), it would be impossible to do longitudinal studies. Without identifiers, patient records from one year could not be matched with those from a subsequent year. Thus, it seems likely that the commission will change its policy and leave the identifiers, thus making reassurances based on present policy quite worthless. (If the commission honestly intends never to use certain information, then it should have no objection to being stripped of the statutory authority to collect it in the first place.)

Witnesses opposed to requiring patient consent stated it was ``imperative'' to have all of the data, lest there be a ``biased sample.'' Of course, all samples are less than 100%, by definition. There is no reason to expect that persons who value their privacy are medically different from persons who do not. The real problem of bias is with the entities collecting and reporting the data. Since the basic motivation for filling out an insurance form is to obtain payment, it is highly likely that the data will be distorted in the direction that will tend to maximize payment; this will be true no matter how complete the ``sample'' is.

It is axiomatic in science that the observer should be disinterested. Yet insurers are advocating report cards based on data that they themselves define and control! Indeed, the most important information on ``access'' concerns procedures that aren't done and diagnoses that are missed. It is really rather preposterous to be talking about ``bias'' due to informed consent in a data set that has an inherent and far more serious bias.

Electronic data are subject to error, and once errors are made, it can be very difficult to eradicate them. Even more worrisome is the fact that electronic data are easily altered. For example, one Medicare carrier has repeatedly deleted claims, in whole or in part, or changed the data, most notably by changing the status from ``unassigned'' to ``assigned,'' despite the fact that altering the claim is illegal.

The executive director of HCACC denigrated worries about the integrity of the data or unauthorized leaks. He observed that witnesses spoke of data on the Internet, or data transmitted electronically, or data in the hands of entities other than HCACC, or computers linked by telephone. Therefore, he thought the witnesses ``confused.'' However, the fact is that once a data set is in any kind of electronic format, it is easily transferred into another format. It may be possible to encrypt data so well that an unauthorized ``hacker'' could never break into the data base. But all it takes is one authorized insider. Penalties, however severe, are applied only after the damage is already done.

Most attention has been focused on the peril of leaks and of harm to individuals. However, the legislature needs to consider the harm from the authorized and intended use of the data.

Just what is the intended use? Many of the named specific uses are bogus (for reasons outlined above). The overall use is to aid in making ``public policy'' decisions about how ``we'' spend ``our'' health care dollars. One labor representative expressed frustration with rising costs, and felt data were imperative to identify ``where all the money is going,'' in order to find ``unnecessary visits'' and ``overpriced services.'' (How information on what prices are leads to knowledge about what they should be is another issue.) The obvious though unstated conclusion is that somebody (other than the patient, who ultimately is also the payer of premiums) is going to decide what services will be available (or unavailable) and at what price.

Also obvious is the fact that individual patients will be harmed by such decisions in order that ``society'' (or third- party payers) will benefit.

Those who will benefit most will be entities that profit from ``arbitrage'' (their term) while decreasing the ``medical loss ratio'' (the amount spent caring for the sick and the injured). Such entities buy and sell groups of patients as if they were commodities.

Data could also be used by governmental agencies to enforce ``global budgets,'' that is to ration medical care by restricting the amount that the citizens of the state are collectively allowed to spend for it. This was the purpose of the Clinton Health Care Task Force proposal for an all-payer computerized data base, as revealed in documents available at the National Archives II in Maryland.

These goals are clearly in conflict with the needs and desires of the patients whose rights are being abridged.

The degree of harm already done by the rationing of medical care is an unanswered question. I have received oral, undocumented reports that in some areas, where managed care is dominant, it is now ``routine'' to deprive patients of food and water-not just patients like Nancy Beth Cruzan, but patients who are simply old and sick. When I asked a managed-care consultant about these reports, he stated that they simply showed a need for ongoing audits (``quality assurance'').

The quality and integrity of the data are crucial for conducting a meaningful audit. The HCACC data will be useless for revealing potential problems but highly useful for obscuring such problems, particularly if they are controlled by the wrong people (entities who have a conflict of interest).

The Maryland state data base could place a tremendously powerful tool in the hands of persons intent on controlling individuals or instituting massive changes in the medical system to the irreparable detriment of many patients. The good intentions of current caretakers are irrelevant. The actual potential of the tool is the issue. We cannot foresee all future changes in the political scene.

Leaving aside the question of risks and benefits, we believe that it is fundamentally wrong to sacrifice our individual patients to the abstract interests of the state or a corporation, thereby treating them as commodities rather than persons with unalienable rights. It is also wrong for the state to criminalize a physician's free exercise of his religion, as in living by his conscience and keeping his professional Oath.

But even if we were to assert that utilitarian benefit overrides rights formerly called unalienable, proponents have yet to prove that there is a net benefit. At best, the data base is experimental. It is unethical to use human beings as experimental subjects without their fully informed and purely voluntary consent.

Therefore, AAPS supports H.B. 557 as a step in the right direction. We oppose H.B. 1030 and 1031 because they are mostly cosmetic and tend to obscure the fundamental flaws in the act they amend. To the extent that H.B. 1030 provides some relief for self-paying patients, it discriminates against those whose financial situation precludes renouncing the risk-sharing mechanism of insurance.

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