Volume 54, No. 12 December 1998

SUNSHINE

On November 3, 1998, U.S. District Judge Harry Leinenweber granted the AAPS motion to intervene in the case of Sunbeam Products, Inc., v. American Medical Association (97 C 6313) and rescinded the protective order on materials produced in discovery. AAPS had argued that the AMA owes a fiduciary duty to all physicians because of its self representations as their single unified voice and because of its government-granted monopoly over a mandatory billing system (see AAPS News Sept, Oct, Nov, 1998 and www.aapsonline.org).

The Judge stayed the recission for two weeks, during which time the AMA may move for a new, separate protective order: "This motion, if the AMA chooses to file it, must identify specific documents, and clearly define the injury AMA would suffer if those documents were disclosed. Should AMA submit such a motion, the court will set a briefing schedule to enable Sunbeam and AAPS to respond."

The Judge agreed with the AAPS contention that the AMA has the burden to show "good cause" for the order. Because the initial order was based on stipulation by both parties, "the AMA never showed, and the court never found, good cause."

Concerning the possible destruction of discovery materials, the Judge held: "The AMA has stated that it is aware of its general obligation not to destroy evidence, that copies of all its discovery are in storage, and that it has no plans to destroy these materials. The court finds these good faith representations to be sufficient assurance that AMA will not destroy any documents, and consequently holds that a document preservation injunction is not necessary."

David Graham, an attorney representing the AMA, told the Chicago Tribune that the AMA would file for a new protective order.

"Like the Clinton Administration, the AMA is going to great lengths to maintain secrecy and to obstruct inquiries into its policymaking processes," stated AAPS Executive Director Jane M. Orient, M.D., "And it raises the same questions: Who knew what when, and what's the big secret anyway?"

Documents eventually released by the Clinton Health Care Task Force showed a heavy influence by tax-exempt Foundations as well as managed-care executives and representatives of profit- making companies that stand to realize tremendous revenues from centralizing, collectivizing, and computerizing the "health care system." Memoranda from the Clinton Justice Department outlined the strategy for implementing top-down regimentation and rationing in a way that might withstand constitutional challenge. A key part of the strategy was delegation of powers to private actors (see the "Zelman memorandum," AAPS News, May, 1998).

The AMA is already deeply involved in the implementation of federal programs, as with the Resource-Based Relative Value Scale, the scheme of federal price controls that makes the CPT coding system so critical. Because this scheme, like all price control regimes that have preceded it during the past forty centuries, has not contained costs but has resulted in corruption and market distortions, still more strong medicine is being prescribed (the AMA/HCFA "E&M Documentation Guidelines"). These "Guidelines," in turn, feed into the central command-and-control measures now in the pipeline for all of medicine, in the guise of "quality assurance," "resource allocation," and "consumer protection."

One obvious question to ask is this: besides the 1983 exclusive contract with HCFA to supply CPT codes (see AAPS News, June 1998), what other business arrangements does the AMA have with government and others to supply the needed data, standards, or professional imprimatur?

It is possible that such arrangements might provide the answers to other vexing questions: Why did the AMA, with the largest ($17 million) lobbying force on Capitol Hill, do nothing to oppose the RB-RVS? Why did it not sound the alarm about criminal penalties in Kassebaum-Kennedy before a Wall Street Journal op-ed piece by an AAPS physician caused phones to ring in Chicago? Why is the AMA doing virtually nothing to promote tax equity and medical savings accounts, even though official policy favors these measures? Why did the AMA endorse a law that would have established a new corporate right to own medical data bases? Why is the AMA not denouncing the "Medicare Integrity Program"? Why is it not fighting a national identifier number?

Focusing just on the June, 1998, E&M guidelines: Why do they contain nothing to protect patient privacy? Why do they so devalue the skills (and downgrade the payment) of physicians by saying that it requires medical decision-making of only "low" complexity to treat patients who need an arterial puncture or an EEG, and only "medium" complexity to perform endoscopy or cardiac catheterization? According to the proposed schema, payment is improved if you choose a more invasive procedure (intra-arterial angiography vs. MRA), and the most remunerative decision of all is to deny treatment.

As Arnold Relman, M.D., former editor of The New England Journal of Medicine, stated: "As a result of [the Sunbeam] settlement, we will never know the truth of what happened. It does not let the sun shine in."

The Sunbeam agreement may turn out to be the least important one. But documents now sealed under protective order could let sunshine into the whole AMA decision-making process, such as that involving the E&M guidelines.

Whatever public-private arrangements one may approve, the ones that must be kept secret could pose a grave threat to the foundations of American medicine and the very existence of a free society.

Have Gun, Will Audit

Among the more than 250 bidders for contracts in the Medicare Integrity Program, which will use private auditors to investigate physicians and other "providers" for fraud and abuse, are the following: Paladin & Associates of Ballston Lake, NY; Medicare carriers such as Aetna Life Insurance Co. of Hartford, CT; PROs such as the Alabama Quality Assurance Foundation of Birmingham; former IRS agent Ron Semaria of Brooklyn, NY; Mr. Jose Giron of Comprehensive Health Care Corp., a "minority owned management services organization"; HOPS International, Miami Lakes, FL, a "data warehouse for very large data bases"; Lockheed Martin Mission Systems of Gaithersburg, MD; Lorine Lorino, R.D., L.P.N., of Cleveland, TN, "a nutrition consultant, audit and medical review and debt collection"; and several persons affiliated with United Healthcare (see http://www.hcf a.gov/medicare/mip/mipbid.htm).

HCFA is seeking authority to add such entrepreneurs to the list of agents allowed to carry weapons.

Paladin of the Western television series Have Gun, Will Travel was a different sort of character. But the most important difference between the Western and the HCFA cowboys is this: In the Western, there was no doubt about the crime. Everybody agreed that a crime had been committed, and the whole town knew what it was. Somebody's brother had been shot, some cattle had been rustled, a horse had been stolen, and so on. The only question was who dunit.

HCFA, on the other hand, has the perpetrator in hand. It just needs to rummage through his records to find a crime.

As HCFA tells beneficiaries in its "Frequently Asked Questions" (http://www.hcfa.g ov/webfaq3.htm#outlook1), "it has never been more dangerous to commit Medicare Fraud." It outlines penalties, including 10 years in prison and administrative sanctions up to a $10,000 fine per line item on a false claim, and notes that "those who commit health care fraud can also be tried for Mail and Wire Fraud."

In the FAQ, HCFA does not reiterate the statement, often quoted by the AMA, that it has no intention of punishing honest mistakes. That may be because, as explained by Robert E. Mazer, Esq., at an October meeting of the National Association of Healthcare Consultants, "I am not aware of anything the government calls an honest mistake-unless it is in the government's favor."

Moreover, Mr. Mazer points out that the doctor's signature on a claim certifies that everything on the claim is accurate and that everything was done in compliance with all regulations. In other words, any violation of any law or regulation is also a violation of the False Claims Act. And anyone who "caused a false claim to be filed" can be prosecuted for aiding and abetting the crime or for conspiracy.

Patient care is a little different from building aircraft carriers, for which there may be only three claims (one-third finished, two-thirds finished, and finished). So the maximum penalties are far higher.

As former prosecutor Charles Murdter noted, there is vastly increased cooperation among law enforcement agencies in this area, and both the civil and the criminal arms will be involved in any health care fraud investigation. If the government can't meet its burden of proof for sending a doctor to prison, it may still be able to get a monetary "recovery."

In the past, Mr. Murdter noted, a prosecutor could not get "the stat," which is crucial for career advancement, unless an investigation led to an arrest and an indictment. Now, FBI Director Louis Freeh has carved out an exception for health care fraud. A prosecutor can get "the stat" if there is a monetary recovery. And the whistleblower can pocket a share of the dollars. Of the Columbia/HCA settlement for $1 billion, the whistleblower received $150 to $200 million.

Mr. Murdter is aware of five whistleblower suits filed by compliance officers. There has even been a successful case in which the whistleblower committed the fraud himself. Judges now have the discretion to decrease the size of the award based on the culpability of the whistleblower.

To expedite investigations, every Medicare claim filed since 1993 now resides on a government data base on a Cray computer at Los Alamos. The CPT codes are key in manipulating the data to pinpoint targets for investigation.

HCFA's work plan for 1999 can be downloaded from http://www.hhs.gov/progorg/oig/wrkpln/1999.

Hospitals and doctors are hiring compliance officers in an effort to reduce the potential damages-even a hospital that could not afford enough billing clerks to monitor accounts receivable and thus did not notice that a financially stressed HMO was a few million dollars in arrears.

How to Earn a "Doctor's Salary"

A special publication from The Free Enterprise Institute and the Oxford Club, PO Box 978, Frederick, MD 21705, tells you how, for only $159, you can get in on a "ground-floor opportunity." The headline reads: "A $10 Billion `Scam' In The Medical Industry Can Help you Make A Six-Figure `Doctor's Salary' From Your Home...Fast, Easy and Foolproof." No special background is required, just two weeks of training. And you'll be an instant hero to your customers, because you'll only pocket half the money you save them by finding mistakes in their medical bills. You'll be able to "enjoy fabulous vacations around the world...Drive the luxury car of your choice...Buy an eye-catching, custom home,....Do whatever you want because you'll have all the money you need!"

We need your help in expanding our growing membership further. Please copy, post, and distribute the enclosed letter. And take advantage of our special, limited holiday offer: All fully paid-up members may give three free one-year gift memberships, in addition to our usual gift membership offer that you will receive with your first 1999 statement. The enclosed green applications are good until Dec. 31. Also, please post, distribute, and ask colleagues active in other medical organiz- ations to comment on the enclosed resolution:

RESOLVED: That there must not be any further interference with the practice of private medicine for the benefit of law-abiding patients. Specifically, it is resolved that (1) the use of armed auditors by HCFA must cease; (2) the additional documentation burdens imposed by the new 1998 AMA/HCFA Evaluation and Management Documentation Guidelines must be rejected; and (3) Congress must not create a new corporate right of ownership over databases of medical records.

AAPS to File Amicus Brief in Gailey Appeal

On November 10, Raymond Keith Gailey, convicted on one count of mail fraud resulting from a contract dispute with a hospital (see AAPS News Oct, 1998), faces sentencing in federal court. The prosecutor is demanding prison time.

In the AAPS amicus brief, Andrew Schlafly argues that the conviction was based on an erroneous economic analysis of the contract, and that Dr. Gailey's alleged misstatement was immaterial. Moreover, the conviction contravenes the due process protections of the Fifth Amendment.

In reversing a conviction based on facts remarkably similar to those in the instant case, the First Circuit held that "[a] breach of contract does not constitute mail fraud" (United States v. D'Amato 39 F.3d 1249, 1261 n.8 (1st Cir. 1994)). Numerous organizations including the ACLU and many New York Bar associations filed briefs for the defendant.

Justice Oliver Wendall Holmes observed that every party to a contract is legally entitled to interpret and breach it, with contractual damages being the remedy to the other side. The mail fraud statute did not criminalize immaterial false representations pertaining to private agreements.

In United States v. D'Amato, the ACLU argued that "no [person] shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." The Supreme Court emphasized the importance of this constitutional limitation in Kolender v. Lawson 461 U.S. 352(1983), noting that due process requires both actual notice and minimal guidelines governing law enforcement. Otherwise, the result could be "a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections."

Mr. Schlafly writes: "Neither Dr. Gailey nor his attorney could have possibly imagined a mail fraud violation based on his interpretation of the contract, which authorized him to request the Hospital loan on a cash basis rather than accrual basis. Such application of the mail fraud statute, which is wholly unprecedented, constitutes lack of the requisite actual notice....This conviction, if sustained, would open a Pandora's box of improper and even politically-motivated prosecutions."

The American Health Legal Foundation has voted to support this amicus brief. Other medical associations have expressed an interest in joining it. AAPS members are encouraged to seek the support of their local or specialty societies. Full text is available by FAX on request or can be downloaded from www.aapsonline.org.

End of Fee-for-Service Medicine in Sight?

In a letter to AAPS Director Lawrence Huntoon, M.D., Ph.D., Scott Levine, Policy Specialist, HCFA Region II, writes: "[I]t has been well documented (by the Government Accounting Office among others) that fee for service billing lends itself to abusive billing practices, at least by some, and that medical review activities pay for themselves many times over....In my opinion, the primary alternative to a well functioning medical review system is the elimination of fee for service billing and its replacement with the myriad of capitation arrangements which has grown to dominate commercial health insurance."

Dr. Huntoon concluded that one purpose of recouping money already paid to physicians is to bolster the financially doomed Medicare program, and another is to totally eliminate fee-for- service medicine and harass physicians into accepting full capitation under Medicare.

Replying to Mr. Levine, Dr. Huntoon noted that "fee-for- service medicine is not what leads to abuse. Participation in the Medicare program is what leads to abuse. Nonparticipating physicians such as myself, who receive payment directly from our patients for work done, would have a very difficult time convincing the patient to pay two or three times or pay for services not delivered." Dr. Huntoon also noted that HCFA, despite repeated attacks on his office, has yet to win a single case against him on medical review. "How cost effective can [such attacks] be?"

Y2K: Are You Ready to Opt Out?

It is thought highly likely that HCFA will miss the January 1, 2000, deadline on upgrading its computer system (Med Econ 9/21/98). However, some carriers have demanded that physicians submitting electronic claims provide four-digit years within one month. Many will have to buy an entire new computer system to do so, as new software will not run on their systems. Before making an investment of many thousands of dollars, physicians might ask: Is it time to opt out?

E & M Survey Update

The final tabulation of our physician survey on the 1997 AMA/HCFA E&M Documentation Guidelines shows that of 1,396 respondents, 1.22% say the guidelines are "necessary and appropriate to combat fraud"; 12.6%, "okay in concept but need revision"; 1.72%, "a useful device to improve quality of care"; 0.79%, "a way to learn what works in medical care"; 1.58%, "a reason to join the AMA"; and 77.8%, "unlawful and unconsti- tutional." Of AAPS members, 82% thought the guidelines were unlawful and unconstitutional, compared with 65% of nonmembers. Full results are posted on our web site.

Should You Help Them?

Physician data is a hot commodity these days, and you may be receiving a number of survey instruments to help compile this profitable information. One such survey came from The Advisory Board Company, which supplies data to hospitals for a membership fee. A socioeconomic survey came from WESTAT, with a cover letter from Lynn Jensen, Ph.D., Interim Executive Vice President of the AMA. One physician's office received three or four telephone calls regarding this survey, which would require considerable time and effort to complete. Physicians are not obligated to supply this information, and can firmly advise WESTAT to stop calling. A detailed, 6-page Physicians' Credentials Update was sent by the AMA to help update the AMA Physician Masterfile, "one of the most widely used, comprehensive physician databases in the world." Anyone in the world can call up your file at www.ama-assn.org. "Make sure they see accurate information," advises E. Ratcliffe Anderson, Jr., M.D.

How Many Guns?

Congressman Bill McCollum of Florida has asked the GAO to report on the rising number of armed bureaucrats; no one now knows for sure precisely how many there are. The problem stems from chronic lack of bureaucratic accountability (Nevada Policy Research Institute, 9/1/98).

Members' Page

An Endgame. To: Joseph J. Perry, Examiner, State of New York Insurance Department: I would like to thank you on behalf of my patients for looking into the outrageous conduct of New York "Care" Plus Co. One can't help but notice that whatever name appears in the insurance company's plan is usually the opposite of what they actually do: i.e. care = no care, plus = less, choice = no choice, etc.

In this case, the patient who this insurance company claims "wasn't sick enough to warrant acute care" died. When Mrs. X died, I continued to fight on behalf of her husband so that he would not be stuck with the hospital bill. When he died, the insurance company won its stall-to-the-death game.

There is much talk about "healthcare fraud" these days. In my view, the biggest fraud is perpetrated by insurers who take money from their "valued clients," then give them a stonewall job that would even put Clinton to shame when they get sick. There surely is a special place reserved for such insurance people, and I suggest that they take marshmallows and a roasting stick with them when they die.
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY

Last Coverage. The Wall Street Journal brings us this news about the state with the most advanced medical socialism: "Assisted-suicide costs should be covered under Oregon's taxpayer-supported health plan for the poor, a state medical panel decided. Oregon voters have twice approved ballot initiatives to let doctors help the terminally ill die. Most private insurers say they will cover the cost of lethal injections" (Wall St J 2/27/98, p. 1).

We are all terminally ill when we are conceived, but should government set the date for our death? To government and some insurers, it makes good economic sense to pay 50 cents for the drugs to kill you, if in a weak moment you agree to the "therapy."
Richard Swint, M.D., Paris, TX

A Step in the Right Direction. You are absolutely correct in getting doctors out of Medicare. All other unconstitutional activities should also be eliminated. We shall never be a free people unless government is controlled as was the intention of the framers of the Constitution.
David Eisenberg, Tucson, AZ

The Next Step. Thanks for the help in exiting Medicare. We are now taking the next step and keeping patients, colleagues, and community leaders informed. On July 1, I wrote to my patients: "I consider myself fortunate to have become a physician. Each year brings more rewards to my working hours. The science and art of medicine is a fascinating challenge. Working with you and the other people who consult me is fulfilling. Because of all that, I hope to continue to practice for several more decades. To do that and maintain my health, I am going to stop dealing with certain insurance companies. We at this office want to do what is best for you, not just what your insurance company guidelines say is permitted. We will no longer be a preferred or participating provider for any insurance company...."
Douwe Rienstra, M.D., Port Townsend, WA

Defending Patients' Confidentiality. I am reviewing all my managed care contracts with the intent of renegotiating or terminating, depending on whether they allow for patients to do their own billing and on whether my assurance of confidentiality is respected in the contract. I will not be doing any third-party billing. My understanding with each patient is that he is responsible for his own bill and that any information that goes to his insurance company will flow from this office through the patient. I had to terminate my contract with Choice Behavioral Health Partnership because Sections 2.16, 5.1, 5.2, 6.2, 6.4, 8.3, and 8.5 have the potential of requiring me to violate confidences which my patients have a right to expect me to keep. Additionally, as I am opting out of the Medicare program, I will no longer be in compliance with Section 11.3 of the independent provider agreement. I hope that other physicians will be inspired to take similar action by knowing colleagues who are willing to take this stand.
Katharine C. Otto, M.D., Savannah, GA

Mortality Statistics. Not to minimize the importance of even one death, the 2,000 people executed in about 30 years by the Spanish Inquisition should be placed in perspective. In the French Revolution during the period of so-called enlightenment, more individuals were executed in 20 days than in the Spanish Inquisition over 20 years. Henry VIII reportedly executed 72,000 Catholics, and his daughter Elizabeth I ("Good Queen Bess") killed more than did the Spanish and Roman Inquisitions together in three centuries. Ironically, "Bloody Mary," the Catholic queen, executed only a fraction of the number killed by "Good Queen Bess."
Michael V. Rock, M.D., Mesa, AZ

Armed Bureaucrats. As we contemplate making new laws with enforceable standards, with goals that are seemingly good, we need to consider what we are doing to our freedom. Currently, the U.S. has 60,000 federal bureaucrats who carry guns to enforce criminal penalties for what one would consider to be fairly minor infractions.
Bert Loftman, M.D., Atlanta, GA

Legislative Alert

The Omnibus Appropriations Act for FY 1999 (HR 4328) is now law. It calls for spending a total of $486.7 billion of American taxpayers' money for federal agencies, departments, and programs normally covered under eight separate appropriations bills that were not enacted separately in this past Congressional session. It also contains another $20.8 billion in what are called "supplemental appropriations"-roughly translated: More federal spending as an afterthought.

Altogether, the bill is a mere $20 billion in extra spending over budget. The bad news is that both conservatives and liberals voted for this bill. The good news is that both conservatives and liberals realize that this is not the way to do business, even if Washington has been doing business this way for far too long. On criticizing the process by which this bill, as so many other bills in the past have come about, the line between liberals and conservatives is happily blurred; and, in that fact alone, there is yet hope for genuine reform of this unwieldy budget and spending process.

The Washington Post editorial of October 16th is perhaps the best single piece on the subject: "Most members will have only the vaguest idea of what the bill contains. Nor will they have more than a fleeting opportunity to amend the measure. The future: Are you for it or against it? You have 15 minutes to decide. That is the kind of vote this will be." Of course, any examination of our Constitutional tradition, as we will note momentarily, reminds us that these are not the kinds of votes we should have in the legislature of a free society.

Reading The Fine Print

So, what have they wrought?

The great Department of HHS got $213. 5 billion, the largest single chunk of taxpayer change in this big spending package. Of this, 85% supports Medicare, Medicaid and other entitlement programs - the so called "mandatory" spending. Odd phrase in a free government, that. In any case, the total is $17.8 billion higher than in 1998.

Federally funded health research is being given a big boost. The National Institutes of Health (NIH) will get a $2 billion increase in funding, raising its 1999 share to $15.6 billion.

Medicare Home Health care, recently the source of rapidly rising costs in Medicare part A, got a $1.7 billion increase-a last minute insertion, largely in response to complaints by "providers," who claimed that 1997 rates were driving too many of them out of business.

There are several policy pieces of note. The final conference report rejected several House-passed provisions, including parental notification of contraceptives for minors under Title X family planning programs; a provision that requires managed care plans to allow women to designate their gynecologist as their primary care "provider"; and a provision that would have barred the use of federal funds to reimburse states for providing Viagra under Medicaid, plus one that would have stopped HCFA from taking "administrative action" against states that do not cover Viagra.

The bill blocks federal funding for abortion under the Federal Employee Health Benefits Program (FEHBP), except if the life of the mother is in danger or in cases of rape and incest. Similar restrictions, based on a conservative abortion policy, have been imposed on the FEHBP in the past. But the new health care mandates are going further and are becoming more detailed. In a continuation of new mandates on the FEHBP, Congress and the Clinton Administration have agreed to mandate that any private plan that provides prescription drug coverage must also provide prescription contraceptives. The mandate makes an exception for plans that are offered by religious organizations and for doctors who have religious or moral objections to prescribing contraceptives. Please note: One of the more alarming features of the Clinton Administration s health policy is its quiet progress in burdening the FEHBP with new rules and mandates, rather than promoting it as a market-based system passively managed by the federal government and governed primarily by consumer choice and competition. According to the staff of the House Subcommittee on Civil Service, there have been 27 mandates imposed on the FEHBP since 1990 by the Office of Personnel Management (OPM). This is not President Ronald Reagan s FEHBP.

The bill accelerates the tax deductibility of health insurance for the self employed, providing for 100% deductibility by 2003, rather than 2007. A wise measure, and a shame it was not given quality time on the floor of the House and Senate.

In other areas of note, the bill blocks any federal funding of embryo research, as well as HCFA s regulations governing organ transplants. HCFA had proposed to change the way that organs are allocated, moving from a system based on geographical region to a new system based on "medical need." The bill also blocks HCFA regulations that would require all hospitals participating in the Medicare program to notify all local "organ procurement networks" of all deaths occurring in those hospitals. Finally, of note, is a provision that requires insurers to cover breast reconstruction procedures after mastectomies.

Process Over Debate

Besides describing what it is that they did, let us note how they did what they did. It is pretty much the same old routine - the one that has resulted in some of the most problematic and downright silly policy prescriptions that affect the medical profession today: the Resource Based Relative Value (RBRVS) for setting Medicare physicians' fees; the mandatory claims filing provisions; requirements that Medicare pay hospitals not to train physicians; the overreaching fraud and abuse provisions punishing "coding errors" with $2000 fines; and, most recently, the notorious Section 4507 of the Balanced Budget Act concerning Medicare private contracting and the huge regulatory regime (833 pages in the Federal Register last count) that accompanies the complex and cumbersome new thing that Congress now inappropriately calls "Medicare Choice," in which "private" plans all have the same government-standardized benefits and are "private" in name only.

This sort of thing is happening in virtually every major area of public policy. But in health care policy, Congressional "liberals" have perfected the process. Take a leftist policy prescription. Get the HCFA staffers or some carefully selected policy wonks to testify to its merits. (Washington s health care policy community is a pretty clubby crowd; lots of alumni from the Clintons Health Care Task Force are always available to offer their best advice on how to regulate the system even more intrusively). The merits may actually be "discussed" in public with reporters present, i.e. why this or that is clearly a "good" idea, assuming you have real Congressional hearings on the subject-not always a good assumption. All the better if one can present the policy prescription as a "technical" issue that won t excite too much opposition, but will guarantee either befuddlement or boredom, and then insert the thing into a year- end spending bill the size of a telephone book. Last minute insertions are best. Give wide latitude to HCFA to interpret the statutory mumbo-jumbo, and, of course, HCFA becomes invariably creative in interpreting and applying the vague or confusing law in reams and reams of mind-numbing regulation. If all goes according to this well-practiced pattern, the actual policy is either unknown or too impenetrable or confusing to excite opposition until after it is passed. Or, to be more precise, after it is discovered. The discovery can take days or weeks, depending upon the energy of the policy analysts who make them. The discovery usually is followed by surprise, and in some cases shock. Questions to the relevant committee staffers are met with defensive responses-"It s the best we could do"; or, "The alternative was worse"; or, "You don t understand"; or, "We had bigger fish to fry, and this was a small part of the deal"; or, "Look, we ll correct it with a technical corrections bill, so be patient." The technical corrections bill isn t; or it doesn t come. But then, one has to ask oneself, does one really want the Congress to enact a "technical corrections bill," with the likelihood that it will become another vehicle for even more bad policy?

Clean Congressional repeals of bad policy usually are not politically practical-once the bad policy becomes anchored in the way of doing things, it simply becomes part of the way of doing things. Bad Karma.

The Need to Return to Constitutional Tradition

This latest Congressional exercise in legislative gigantism is just the latest graphic demonstration of what is wrong with modern American government-not just this Congress, but modern American government in general. It is clear that it is not a liberal problem or a conservative problem, or a Republican or a Democratic problem. Both sides affront the integrity of the legislative process and the spirit of the Constitution itself. The wild and crazy thing is that we treat a wild and crazy legislative process as if it were perfectly normal.

American political thought, particularly in its infancy before and immediately after the Founding of the American Republic, was supremely sophisticated. The central message of the Founding Fathers, embodied clearly in The Federalist Papers, is that the American Republic is to be governed by the elected representatives of the people through a process of rational deliberation. Knowing that in a free society, where free association for common ends is natural, and that "factionalism" and self interest were a natural byproduct, the Founders carefully constructed an architecture of fundamental law and political institutions to channel and control-or at least cool- political passions by checks and balances and the separation of powers.

That Constitutional vision is today hard to find among the Congressional Members and staffers who churn out the year-end telephone books. Remarkably, it is even dismissed as hopelessly idealistic-an odd sort of charge. The writings and the explanations of the Founders of the American Republic evince little, if any, "idealism" about human nature or behavior, but rather see men and women as creatures, endowed by their Creator with free will, but flawed in both reason and will. If men were Angels, James Madison of Virginia, the father of the Constitution, once remarked, then government would be unnecessary. But since human beings are not Angels, but imperfect creatures with urges pressing them downward as well as upward, laws to protect our liberty are necessary. What is clearly unnecessary are impenetrable statutes, misconstrued by bureaucrats who make up their own rules, far too often, as they go along-unchecked or restrained by either the laws themselves or the elected representatives who make them.

This spending pattern is now an ingrained feature of the Washington landscape, so much so that even to question it is considered somehow-watch the eyes of the cognoscenti roll upwards-unsophisticated. In a recent public debate with a spokesman for the huge American Association for Retired Persons (AARP), this author noted, for example, that the notorious Section 4507 had become law, passed overwhelmingly with conservative votes in the House and the Senate, largely because members of Congress had not even a clue what it was they were enacting. When it had become clear, they were horrified at the flood of faxes, the mass of mail, and those terrible telephone calls from grannies across America. The response of a opponent of Medicare private contracting was that I, a Washington veteran and former denizen of the marbled corridors of power, should "know better": that Congress would not pass any major bill, particularly those big ones, if they had to follow the fatally unrealistic prescriptions that I think are quite normal-namely to read and to understand what it is that they are enacting. What a weird idea! If people on Capitol Hill take such a wild notion seriously, then there is the dreadful possibility that our shelves will be stacked with fewer laws, and our little pals in the great gray mass in the federal bureaucracy would have less opportunity to do so much "good" to us-good and hard.

If Members of Congress started to check the Constitutional basis of what it is that they are doing each time a piece of legislation is advanced in Committee or set for debate on the floor of Congress, and if they would refrain from doing things that they are not Constitutionally empowered to do, Americans would savor the sweet taste of limited government. That might be too idealistic for the moment-not "politically viable" as they say in this town. In the meantime, is it really too much to ask them to read the bills? Jimmy Stewart, oh please Mr. Smith, call your office.

More Medicare Trouble

Meanwhile the vaunted "Medicare Choice" program, brought into being by another legislative monstrosity, the Balanced Budget Act of 1997, is being aborted by red tape, even before it gets off the ground, and the existing HMO risk contracts are crumbling under the combined weight of law and regulation. There is going to be less patient choice this coming year. Private managed care plans are leaving the Medicare program: 96 health maintenance organizations have announced that they are getting out of Medicare, and 440,000 senior citizens, by January 1st, will have to poke around among the shrinking alternatives or get back into the traditional Medicare program. Some choice.

Robert Moffit is a prominent Washington health policy analyst and Director of Domestic Policy at the Heritage Foundation.