Patients whose medical care is provided by public funds have no constitutional right to whatever care [their physicians] using "the highest standards of medical practice"...may "judge necessary"... or to obtain that care "from a physician *** of their choice."

Because of concerns about escalating costs, the PSRO law, including a multiple (physician) approval system "through which physicians are tricked into believing they would control the program instead of bureaucrats," was "slipped through Congress in 1972 by being buried in a 900-page bill amending the Social Security Act," according to an AAPS news story.

AAPS challenged the constitutionality of the law on the grounds that it interfered with physicians' right to practice their profession and also denied patients the right to discuss their illnesses in confidence.

A three-judge panel in the District Court for the Northern District of Illinois dismissed the case (J.S. App. 2a-30a; 395 F. Supp. 125), arguing that the PSRO only provided "standards for the dispensation of federal funds." The Judges wrote:

Underlying the constitutionality of the challenged legislation is the basic premise that each individual physician...has the ability to choose whether or not to participate in the program. It is true that there will exist economic incentive...to participate in the program. However, such inducement is not tantamount to coercion or duress.

The decision was appealed directly to the U.S. Supreme Court, which affirmed.

At the time, there were no implementing regulations, so concerns about the law's impact could be called "speculations."

The PSROs denied payment prospectively. As U.S. attorneys wrote in their Motion to Affirm, "the alternative-to deny payment after a post hoc review-entails significant waste of resources and disappointment to physicians and institutions that have rendered services in the expectation of payment." Today, of course, physicians experience both post hoc denial of payment and potential criminal punishments.

Most importantly from today's perspective, U.S. attorneys argued for the constitutionality of PSROs on the grounds that they did not actually require the physician to prescribe or refrain from prescribing any form of treatment because "a physician remains at liberty...to forego reimbursement in any particular instance [emphasis added]."

It is within the context of his opposition to extending this protection that the proposed Clinton Patient "Bill of Rights" (see p. S2) should be examined. Clearly, the Clinton approach is fundamentally in conflict with the Bill of Rights in the U.S. Constitution, which is based on the concept of self-evident rights that neither the government nor other citizens may justly violate.

The real right to medical care (discussed in depth by George Reisman in a pamphlet entitled "The Real Right to Medical Care Versus Socialized Medicine," available for $3.25 from the Jefferson School, PO Box 2934, Laguna Hills, CA 92654) is not an affirmative claim to economic goods. Such claims necessarily imply the right to steal from or to enslave others, thus violating their right to life, liberty, and property.

The real right to medical care depends on the right to free exchange and the freedom of contract. It is violated when one is prevented from obtaining care by the initiation of or threat of force. No rights are violated simply because care may be unavailable or unaffordable.

Real rights are not optional-in contrast to Clinton's proposed consumer protections. Clinton will simply "challenge" health plans to come into "voluntary compliance." He acknowledges that compliance by federal agencies may be blocked by statutory impediments.

The only obligation imposed by real rights is to respect the rights of others. Clintonite "rights" come with volumes of associated obligations (which, so far, stop short of imposing a duty to die). This should be no surprise. We have already seen, with Medicare, the price of staking a claim to resources seized from taxpayers.

How can we restore patients' rights?

A coalition of market-oriented consumers' groups is drafting a Statement of Principles based on the AAPS Patients' Bill of Rights that incumbents and candidates for office will be asked to sign. The concept is like the Taxpayer Protection Pledge already signed by more than 200 U.S. Representatives, 40 U.S. Senators, and nearly 1,000 state legislators. The four principles include freedom of consumer choice (specifically, the right to obtain and pay for services outside a "plan"); freedom from government rationing and controls; freedom from invasion of patient privacy; and freedom from entitlement creation or expansion.

AAPS will continue to advocate expanded protection of the right to free exchange and private contracts.

To win the battle for patients' rights, we must first clearly understand what those rights truly are.

Medicare in Massachusetts

That is not entirely correct. The statement that a physician must sign on his license applications says that he will not charge to or collect from a Medicare beneficiary a sum greater than the amount approved by the Secretary of Health. In fact, the judge who heard the appeal protesting this law stated: "There is nothing in the bill which compels a physician to participate in Medicare." I'm sure his tongue was firmly in his cheek when he said this, as many would consider it a moot point whether a doctor "participated," as long as he was bound to accept the government's price for all services, and his patients were penalized for selecting him, since the approved amount for a nonparticipating doctor is 5% less than for a participating one.

The penalty for charging or collecting more than the approved amount is, as you pointed out, loss of one's medical license.

This law, passed in 1986, which imposed conditions on a professional license unrelated to competence to practice, was upheld because of a previous ruling against nurses who had objected to having to sign a statement that they had paid their state income taxes in order to receive a nursing license.

A few years later, lawyers also objected to having to sign this attestation as part of their license. They were exempted by the Supreme Judicial Court from this requirement because it was an affront to their dignity....

For the time being, I am one of a handful of nonparticipating doctors in Massachusetts. If the course of events in Canada is any guide, it is only a question of time before this option is declared illegal. When more than 90% of physicians have voluntarily entered the corral, very few people will notice when the gates are locked. I'm sure the Medicare carrier does not like sending checks to individual patients (it shows how wasteful and expensive low-deductible "insurance" is), but for now, the law does require them to do it.

The only point in continuing as long as possible, I suppose, is the possibility that Medical Savings Accounts will supplant HMOs as the preferred choice for seniors, if they haven't all forgotten how to deal directly with their doctors. I try to keep the form alive (symbolically), in hopes for the brighter tomorrow. The other factor prompting my return to nonparticipating status two years ago was the obvious absurdity and affront to my dignity of government bureaucrats dictating the "value" of my services to the penny. This in an age when pennies are left in little plastic trays at convenience stores and the man who makes my sandwich for lunch tells me not to bother about the pennies.

Bernhard Heersink, M.D., Newburyport, MA

A Doctor's Thoughts on AAPS v. Weinberger

The good part of that Supreme Court decision was the statement that the individual doctor does NOT have to be part of the program.

After that decision in 1975, I published this information plus my statement that I was NOT part of the government medical programs.

Some doctors quit medicine altogether and some stopped treating Medicare patients rather than get involved in the new coding regulations developed at that time. I decided to continue in general practice, to see all patients who sought my care, to try to do my best for each individual patient, and to remain a private and independent physician. I decided to treat the patients at no charge rather than get involved in legal hassles with bureaucrats whose primary goal was control.

Before 1988, I was in partnership with Dr. Jack, who tried to work with the system, doing those things that made it easier for patients to get benefits from various programs. He used to sign the certificates, talk to the bureaucrats, code the procedures, and so on. But he quit. The patients who used to get good medical service from him, in addition to all that coding and so on, now got nothing from him because he was not available for any service at any price. That is how the government "provides" care to people.

Dr. Jaggard does NOT have any contract with anybody other than the patient. When an insurance company says that Dr. Jaggard is not "cooperative," they are actually saying that he is not subservient to them, and he does not bow to them to get their "easy" money. I know that my policy has created a problem for some patients. For that reason, I have also established the policy that I will refund any fees paid by any patient who is not happy for any reason.

I urge you to take a long, hard look at what is going on in American medicine and see what is happening to patients and doctors. Ask yourself: What kind of doctor do I want to have when I get sick?

Robert S. Jaggard, M.D., Oelwein, IA, April 22, 1990
[Dr. Jaggard died March 4, 1993.]

Medicare Investigator Sentenced

The investigator had amused himself by making telephone calls claiming to be a psychologist conducting a sex survey. He got a free ride to the jail when one of the victims of sexual harassment, who had caller ID, called the sheriff.

The investigator pleaded guilty to multiple intentional acts (a pattern of abuse) and was fined $250 plus court costs. Physicians that he investigates can be fined $10,000 for an unintentional single episode of Medicare coding error.

Lawrence R. Huntoon, M.D., Jamestown, NY

The Advisory Commission on Consumer Protection and Quality in the Health Care Industry, created last March, has released a "Consumer Bill of Rights."

The official language of the initial report is clearly reminiscent of the pleasing rhetoric surrounding the Clinton health plan. And to be sure, it has to be read carefully to get the full flavor of the regulatory agenda, and its full meaning for doctors and patients. When the Clinton Administration uses words like "choice" or "competition," they usually have meanings quite different from those understood by ordinary Americans. Translation in this business is crucial.

Chaired by HHS Secretary Donna Shalala and Labor Secretary Alexis Herman, the 34-member Commission is described officially as "broad-based." Translation: lots of special interest groups and no conservatives. The "Consumer Bill of Rights" has three goals: First, to strengthen the confidence of consumers by making sure that their grievances are addressed. (Translation: you can't fire your employer's insurance company, take your money, and buy and your own health insurance with the same tax breaks you would get if you were enrolled in the corporate plan, but you are allowed to complain-through government-established channels.) Second, to reaffirm "the importance of a strong relationship between patients and their health care professionals." (Translation: This relationship is important as long as it doesn't manifest itself in a voluntary private relationship between patients and doctors, especially if the patient is eligible for Medicare.) Third, to "reaffirm the critical role consumers play in safeguarding their own health by establishing both rights and responsibilities for all participants in improving health status." (Translation: the government will manufacture a new series of legal "rights," with an corresponding increase in legal obligations, and this therefore will ensure that there is less and less personal freedom for all, regardless of race, color, creed, national origin, ethnicity, gender, or sexual preference.) The key feature of modern authoritarian regimes is the explosion of legal rights and obligations and the necessary contraction of personal freedom and independence.

The range of proposed "rights" is comprehensive: the right to information, the right to a choice of providers and plans: "Consumers have the right to a choice of health care providers that is sufficient to ensure access toappropriate high quality care." (Translation: you have the right to a doctor the government approves.) The new "rights" extend to access to emergency services, participation in treatment decisions, respect and non-discrimination, confidentiality of health information ("Consumers have the right to have the confidentiality of their individually identifiable health care information protected" [emphasis added]), and to a process of complaints and appeals. The Commission also outlines consumers' "responsibilities"- everything from staying healthy through diet and exercise to reporting wrongdoing and fraud to "appropriate" resources or legal authorities.

One can obtain a full report to the President on the Consumer Bill of Rights and Responsibilities on the White House Website (www.whitehouse.gov).

In short, what the Armey says is that despite Republican control of Congress, the Clinton Administration is still on the offensive and is calling the shots on the health care policy front. This is, of course, no surprise to anybody following the debate and tracing the broad Clintonian contours of the policy that is, bit by bit, emerging from Congress.

On the "Consumer Bill of Rights" Armey remarks: "This new offensive-on health quality-follows a common Clinton pattern: First, he identifies a "crisis," usually in the fall of an election year. Then he highlights it in his State of the Union message. And then he calls on Congress to send him, by election day, some Kennedy-Blank bill to "solve" this crisis.

The genius of the Clinton Administration is in the use of language-one must look beyond the appealing rhetoric to discern what is, in fact, being proposed. For example, a right of "nondiscrimination on the basis of health" means a guaranteed-issue rule for health insurance. While this may sound good, it necessarily implies increased government authority over the health insurance market and increased premiums. "Access to certain basic benefits" means a mandated comprehensive benefits package. And "access to women's health services" means mandatory abortion coverage.

As Armey notes, "Under this approach, HHS and the Department of Labor regulators get to decide everything from the proximity of medical facilities to patients (it must be `reasonable') to the number, mix and distribution of providers (they must be `sufficient'), to when a patient may see a specialist (whenever his condition is of `sufficient seriousness and complexity' to require it.) Various new benefits are mandated, as is the collection of reams of standardized information required by data-hungry bureaucrats."

Looking at the Presidential Commission recommendations, Armey says that the bulk of the components of the original Clinton Plan are embodied in the proposals, and only federal control over the financing of the health care system is missing: new taxation, a global budget, an employer mandate, and the establishment on a national scale of federally sponsored health insurance purchasing cooperatives.

Do not expect that the Clinton Administration's proposed regulatory authority will apply with equal force to all. Due to high costs, there will be key exceptions, such as union plans.

Armey predicts that Clinton will make the issue of health care "quality" a major plank in his agenda in his January State of the Union. All that he needs is a Senate Republican to do a reprise of the Nancy Kassebaum/ Orrin Hatch role in 1998. Kennedy- Kassebaum and Kidcare, after all, were smash hits. Central casting on Capitol Hill is likely to give the part to Senator Jim Jeffords (R-VT). And if the previous script is followed, Congressional Republicans will be typecast as bumbling sidekicks or villains. The envelope, please .