Volume 53, No. 1 January
1997
The question is who will save them and from what? In 1973, Hillary Rodham wrote, ``I want to be a voice for America's children'' (Harvard Education Review). She has long advocated ``children's rights'' and argues that the inferior position assigned to children under the law should be seen as ``part of the organization and ideology of the political system itself.'' The children's rights movement is a ``logical extension of earlier movements to give civil rights to slaves and women.''
``The basic rationale for depriving people of rights in a dependency relationship is that certain individuals are incapable of or undeserving of the right to take care of themselves and consequently need social institutions specifically designed to safeguard their position,'' she wrote (see The Seduction of Hillary Rodham by David Brock, the Free Press, 1996).
Hillary Rodham purportedly believes that children (or some children) are fully competent to decide issues affecting their future, such as motherhood and abortion, schooling, cosmetic surgery, treatment of venereal disease, and employment. The corollary is that parents are incompetent to decide, and children must have their rights protected by the state.
The ``right'' of the hour is the right to ``coverage'' (sometimes confused with the ``right to medical care''). The White House is considering proposals such as that of Vermont Governor Howard Dean to place children up to age 18 in a managed care program with comprehensive preventive and acute care services, dental coverage, and vision benefits. Also under study is a ``Families First'' proposal to provide subsidies to help working families buy special children-only health plans,'' according to Chris Jennings, special assistant to the president for health policy development (BNA's HCPR 9/23/96). (Jennings previously served as liaison between Hillary Rodham Clinton and the President's Task Force on Health Care Reform.)
The creation of a new entitlement is supposed to occur within the context of a balanced budget, since children are an inexpensive population to cover. ``We're talking about less than 1% of the federal budget....This shouldn't even be controversial,'' stated Governor Dean (ibid.).
The preferred mechanism is school-based clinics.
Watch for buzzwords such as ``streamline,'' ``simplify,'' ``economize,'' ``consolidate,'' ``accountability,'' ``efficiency,'' and ``decentralization''the same ones used to sell the so-called Careers Act and Workforce Development Act, stymied in conference after sailing through both houses. The consolidation of health care with ``outcome-based education'' and ``school-to-work'' careers planning would make it possible for the state to completely usurp the ``development of human resources'' (formerly called the upbringing of children).
The results of state-guaranteed health-care ``rights'' of children can be predicted from the results of the state- guaranteed ``right'' to an education:
The same children deemed capable of weighing ``alternatives'' such as drugs, abortion, and homosexuality, come from parents who can't be trusted to manage a Medical Savings Account. In a discussion with Rep. Dennis Hastert (R-IL) about MSAs, Hillary Rodham Clinton said ``we can't trust the American people to make those type of choices [about medical care]. Government has to make those choices for people.'' Additionally, ``we can't afford to have that money [in MSAs] go to the private sector. The money has to go to the federal government because the federal government will spend that money better'' (American Spectator 11/96).
Underneath the ``traditional values'' packaging, Hillary Rodham's plan to reform schools required that every school conform to a set of elaborate, state-imposed standards designed by an elite cadre, or else be shut down (Brock, op. cit.
Her agenda for American medicine is similar: the elimination of private influences that could interfere with the establishment of nanny-state despotism in which all of the non- elite have the same rights as children or slaves, under state parentage.
The ``health care'' battle, especially ``KidCare,'' truly is a battle to save the childrenand our heritage of freedom.
Mandatory Electronic Claims Submission. Public Health Law 2807 now makes it mandatory for physicians in New York to submit electronic claims to all insurers, as of April 1. AAPS Director Lawrence Huntoon, M.D., reports that ``a few lucky, low-volume practices like mine are able to fill out a waiver form that permanently excludes us from having to comply. However, we did not receive one of the coveted waiver forms in a general mailing (like the one that informed us of the requirement). I had to write for mine repeatedly. Also, we were told that the Dept. of Health would not provide written confirmation of receipt of your Waiver Notification Form. I guess they don't want to tell physicians whether they got it so that later the physician can be fined and jailed for failure to submit the proper form, true to the KGB tradition of `show me the man, and I'll show you his crime'.''
Practice Data Demanded. Wisconsin physicians must either fill out a form giving data about their practices, or face a $10,000 fine and/or 9 months in jail. The form asks about the percentage of time spent in various types of activities; the involvement of advance practice nurses or physician assistants; acceptance of new patients or Medicare or Medicaid patients; and specialties. Barbara Rudolph, Ph.D., Deputy Director, Office of Health Care Information, (608)267-0236, told AAPS Executive Director Jane M. Orient, M.D., that the department had received replies from 95% of Wisconsin physicians. Without the leverage of the fines and jail time, Rudolph thought that only 30% would have replied. She said that the state needed the data to apply for federal dollars for underserved areas; to set up long distance learning for advance practice nurses; and to gauge the impact of a 24-hour waiting period for abortions on women in rural areas. (The form doesn't ask about abortion.) Also, HMOs use the data, she said.
``We don't have an agenda,'' she assured Dr. Orient. ``And we're not that dictatorial.'' She stated that the ``provider community'' was involved in designing the form and wouldn't permit abusive extensions. ``Doctors have a choice: spend five minutes of their time doing the form, or pay the fine.''
The other option would be license revocation, and she thought that doctors would prefer a fine.
Steven Mueller, the attorney to whom Rudolph referred questions, said they had been receiving a number of outraged calls. He didn't think doctors would be vigorously prosecuted [in which case the Office is guilty of false threats rather than abusive prosecution]. AAPS will review the statute.
``It's not the number of minutes required to fill out the form,'' stated Dr. Orient. ``It's the principle of using forced labor to aid and abet something that some physicians may abhor, such as HMOs, central planning, or abortion.''?
Family physicians also feel aggrieved, and ``impotent against the government colossus.'' They have developed a ``GP Job Action Menu'' that resembles in some respects the 1965 AAPS Nonparticipation Strategy for Medicare, such as withdrawing from hospital committees (Medical Post 10/1/96).
The government's reform agenda is ``consolidation'' of power in the hands of an omnipotent agency called the Health Services Restructuring Commission. Noncompliance by a hospital could mean being placed under government supervision (Globe and Mail 11/16/96).
New Brunswick was the first province to develop a physician manpower policy, based on a full-time equivalents (FTE) calculation called ``fuzzy'' and ``inaccurate.'' Not only does it affect new residents, but it can disrupt the plans of physicians who would like to phase out their practices and retire (Medical Post, 10/1/96).
While New Brunswick interns challenge in court the program that keeps them from practicing in certain areas, Pierre Boucher, an executive of the Quebec Health Insurance Board, states: ``It's not a God-given right because you've graduated from medical school that you should practice wherever you like'' (Wall St J Interactive Edition 11/11/96).
One could ask whether one loses one's God-given right to liberty, including the right to work wherever one can find employment, simply by earning a medical degree. But under Canada's single-payer system, all doctors are effectively employees of the government.
Although there is increasing pressure for some privatization in Canada, strong ideological opposition remains. ``If you allow people to opt out, we will spend more because it would allow people to buy more,'' stated Rosana Pellizzari, M.D., Spokesperson for the Medical Reform Group in Toronto at a Nov. 23 conference sponsored by the Massachusetts Medical Society. She dismissed evidence that people were having to wait a long time for needed care by stating the source (the Fraser Institute) was ``not credible,'' being a ``right-wing think tank.''
As criticism of managed care heats up, the pressure builds for U.S. ``single-payer'' (socialized medicine without a private escape hatch), which deprives doctors of the right to offer, and patients of the right to buy the medical services they wish.
The defense brief, filed by Charles M. Sevilla of San Diego, found four causes for the difference:
In the brief filed simultaneously by the Government, the prosecutors basically refused to answer the question posed by the Court, stating that a ``proof of loss per count'' approach was contrary to the instructions in the Sentencing Guidelines and to Ninth Circuit law. Instead, they stated: ``if sentencing losses due to fraudulent schemes were limited to the counts of conviction, counts involving tens of thousands of victim payments in a telemarketing fraud case would have to be individually pleaded.'' Instead, the government seeks testimony by ``insiders'' to show that a business is operated as a scheme to defraud. Prosecutors reiterated statements by several witnesses, which purportedly proved that Dr. Rutgard's practice was ``permeated with fraud'' so that every single payment was presumed fraudulent. Dr. Rutgard ``was motivated first and foremost to defraud insurance, not to render proper patient care,'' they stated.
The defense filed a motion to strike the government's brief as nonresponsive, or alternately to permit appellant to ``respond to the new matter...as he is confident he will be able to show similar inaccuracies as in the respondent's main brief.''
``The government has used the supplementary brief as an overt dodge of the court's specific and uncomplicated question for an itemization of costs per count. The government misuses its brief as a launching pad for a multi-topic presentation of legal and factual arguments on sentencing-related legal issues, responses to comments made at oral argument, alleged summaries of patient testimony, and other topics which in no way relate to the limited assignment....in a context in which appellant has no reply.''
The defense cites one example in which the government did not charge Dr. Rutgard for indisputably necessary surgery, but did indict for two post-surgery office visits (total payment $125.80), the question being whether these were for unrelated problems not included in the global surgical fee. ``This example shows the manner in which the government's `let's take it all' permeation theory is totally without merit.''
This brief was submitted by Mr. Perez-DeLeon in propria persona, against the advice of counsel, insisting that this issue be raised on appeal.
``By enacting the Kassebaum-Kennedy Act, the U.S. Congress reaffirmed the civil liberty of the mens rea requirement established by the U.S. Supreme Court in Morrissette vs. U.S. (342 U.S.246(1951))....[w]hat distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere and the private individual cannot be ordered about but is expected to obey the rules that are equally applicable to all (Hayek, The Constitution of Liberty, 1960). To deprive medical providers of the mens rea requirement in criminal prosecutions involving fraud, convicting [them for what they should have known], is to ask a class of citizens to obey rules not equally applicable to all....
``[T]he issues of due process involve reconciling the legitimate needs of a society to maintain law and order and the fundamental right of every citizen to be protected from unconstitutional surveillance, arrest, conviction, and punishment. Defendant asserts that there is no legitimate need to maintain law and order in denying medical providers the mens rea requirement....''
Such price discrimination is perfectly legal and, indeed, even desirable under strict economic construction of the Clayton Act, as amended in 1936 by the Robinson-Pateman Act. Section 2(a) of the latter Act sets forth the so-called ``cost justification'' defense for price discrimination: ``Nothing herein contained shall prevent [price] differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery.'' More generally, proscriptions against price discrimination primarily apply to the sale of goods or commodities, in contrast to the rendering of professional services. The Seventh Circuit has expressly ruled that the Robinson-Pateman Act does not apply to medical services. See Ball Memorial Hospital v. Mutual Hosp. Ins. 784 F.2d 1325, 1340 (7th Cir.), rehearing denied, 788 F.2d 1223 (7th Cir. 1986).
Strict application of the prohibition against price discrimination would require, not prevent, physicians to charge differently for services having different costs. ``True economic [price] discrimination [occurs] by charging the same price to different groups of buyers, even though the costs of serving them differ (H. Hovenkamp, Federal Antitrust Policy: the Law of Competition and Its Practice, Section 14.f1, at 529, 1994). The question reminds us that we must be alert to possible misuse of the antitrust laws by HMOs and others. But physicians need not be paralyzed by fear from engaging in economically rational pricing strategies.
Who Is Greedy? We feel that we have been under federal
government scrutiny for about ten years and have lived in
isolation for four years in an old house which became our prison.
Finally, I am trying to make it liveable again. What an irony!
It took me 7 or 8 years to restore this former boarding house,
which I purchased for very little money, after a major fire. For
years, we had no kitchen and no bathroom. It took so many years
because I did all of the work myself. I learned every aspect of
the building trade. I labored terribly hard on it, and I was
quite proud that I created an old European-like home for us. The
prosecutor's favorite line to the judge was: ``Your honor, this
woman lives in a magnificent mansion. Just make her sell it and
give us the money!'' In the Communist era in Prague, our
families lived through Government property seizures, but in the
worst nightmare I couldn't imagine it in this country.
Mrs. Blanka Krizek, Washington, D.C.
[Mrs. Krizek also did billing for her husband's psychiatric practice. The Krizeks' appeal-a 15-minute oral argument-was heard in the US Court of Appeals in Washington, DC, on Dec. 2. See AAPS News October 1996.]
Will Patients Pay Doctors? Recently, I have read several
editorials that state that prior to the rise of third-party
payers, physicians lived on poverty-level incomes. Under new
editorial leadership, that is the message coming from
Postgraduate Medicine, and I am wondering if this is
true (I doubt it). Is this a new subliminal attack against
medical savings accounts? That doctors will not get paid if they
must rely on direct payment from patients?
Albert L. Fisher, M.D., Oshkosh, WI
Keep Out the Feds. When I came home from San Diego, I thought it would be possible to set up an MSA plan here, so I visited with a banker friend and some local insurance people. I envisioned a checking account plan on which the fees for basic services could be paid by writing a check to the doctor, avoiding all paper work except for the usual bank statements. The patient would keep copies of bills for possible audit.
The banker tells me that since the bank would have a fiduciary responsibility, the account would have to be handled by the trust department (expensive). National banks would have to get approval for a plan, which would be expected to take a year or two. It is interesting that insurance companies are considering annuities for the MSA (red tape).
Standard policies appear to have deductibles of $1000 or $2500, while Kennedy-Kassebaum specifies not less than $1500 or more than $2250. This appears to be another deliberate roadblock, requiring insurers to devise new plans.
One insurance man said there is not much point in developing plans because the rules and regulations won't be written for months, and all their work could be for naught.
As things stand, it might be best to ignore federal
programs. I like the AAPS credit union idea.
Margaret Emmons, M.D., Clinton, IA
Counterfeit Rights. How can you tell true from
counterfeit rights? When gold coin was money, the final arbiter
for true vs. counterfeit was the acid test. The acid test of a
right is this: does the alleged right prohibit-or authorize-the
initiation of force? If it prohibits the initiation of
force, it is a genuine right. If it authorizes the use
of force, it is a fake, a fraud, a rip-off. Note that welfare
``rights'' authorize forcible collection of handouts and that
sensitivity ``rights'' authorize forcible silencing of peaceable
speech. Those who advocate such bogus rights are the enemies of
freedom.
Michael Miller, Quackgress Press #28, qgrass@agt.net
Ste. #601, 105-150 Crowfoot Cr. NW, Calgary, AB 3TG 3T2
The New Physician. I thought you might be interested in
what they are looking for in a ``physician'' nowadays in a
federally-funded community health center in Tuscaloosa, Alabama:
he must ``meet the Center requirements of compliance with rules,
policies and procedures; provide comprehensive care through the
implementation of health care plan and written protocols;
maintain clinical tracking data;...emphasize the prevention of
disease and the promotion of health;...function
interdependently as a cooperative primary care team
member;...review and update clinical protocols annually.''
R. Wayne Porter, M.D., Corning, AR
The preliminary sifting of the surveys has been underway for several weeks now, and a clearer picture is emerging. The Washington Post surveys show that the United States in 1996 is being governed by ``two majorities'': the majority that reelected a Republican Congress for the first time in 68 years and the majority that reelected a Democratic President for the first time since 1944. These ``two majorities'' differ on the basic issues, such as how big the federal government should be.
The crushing boredom of the 1996 campaign and the low turnout are not really signs of domestic political tranquility, although Clinton, as the Presidential incumbent, could not help but enjoy the benefits of apparent peace and prosperity. The lack of passion in the campaign disguises a deeper passion below the surface. According to the Post poll, the Clinton voters do want more government, not less. For them, Clinton's proclamation that the Era of Big Government is over is neither true nor desirable, and one can only suspect that they know better than most that Clinton doesn't really mean it. Remember how the President complained that his health care system was savaged by narrow-minded nasties around the country who ``misrepresented'' his health care plan as a ``government-run'' system? Please note that Hillary Clinton, traveling with the President in Australia, praised the Australian socialist system as a model for America. He really ought to have a heart-to- heart talk with Hillary, lest we get the idea that he's in sync with her ideas on ``health care reform,'' something like a government-run health care system.
Even if Medicare were changed from a defined-benefit to a defined- contribution program, and consumer choice and competition were introduced, the program would still grow substantially, reaching 4.7% of the GDP in 2030, but taxpayers would save trillions of dollars, as syndicated financial columnist James Glassman wrote in The Washington Post Nov. 26, 1996.
Whether or not Congress and the President will do something serious about Medicare is open to question. Congressional Republicans, despite the imperfections of their 1995 plan, demonstrated an unprecedented seriousness in dealing with Medicare. Understandably, they are gun shy after the thorough trashing they got over the past two years. It is likely that Congress will take the easy way out and squeeze a few more bucks out of what the Washington wonks call ``the providers''- a bureaucratic phrase underscoring the ``health policy community's'' contempt for those who have earned the degree of Doctor of Medicine. Then, Medicare will lurch from crisis to crisis, and the costs to the taxpayers will skyrocket.
Congress should start by cleaning out, with Herculean efforts, the thickening and often incredibly stupid regulatory underbrush that ensnares honest, as well as dishonest, physicians. We worry about how to separate the dolphins from the tuna; can't we do the same for doctors and crooks? This takes guts. Remember, the Big Boys like government regulation; it cuts down on the competition. And a highly regulated ``market'' is just the right sort of environment for black marketeers and crooks to flourish.