United Seniors Case Heard
On October 23, the case of United Seniors Association v.
Shalala was heard in Circuit Court for the District of
Columbia before Judges Williams, Sentelle, and Garland.
Plaintiff's attorney Kent Masterson Brown conceded early in the
hearing that the litigation did not concern the right to contract
privately for services covered under Medicare, but only for those
services which, under a clear standard, would not be
covered. Price controls, which can adversely impact the
availability of necessary services, are explicitly not being
challenged in this case.
The Court acknowledged that there is no market-based
insurance available to seniors as a result of the heavily
subsidized Medicare program. The Court also stated that "the
current medical insurance is ludicrous in the way it covers
things that in a normal insurance market would not be covered at
all." The Court challenged the U.S. attorney to cite a
constitutional basis for §4507 of the Balanced Budget Act.
Mr. Bondy stated: "Well, the power, whatever the power is to
promulgate Medicare. I'm not even sure standing here right now
what that is."
The Court replied: "It may be perfectly true that Medicare
is unconstitutional. Okay? But that's not challenged....It
doesn't do [any] good to say whatever involves the unchallenged
statute must also involve the challenged statute."
The plaintiff did not claim that patients could not obtain
necessary medical care. In the Court's understanding, "they're
not claiming nearly so much that they're deprived of medical care
as that they're deprived of the right to contract for it."
Mr. Bondy acknowledged that the two issues are related.
"Sure they're related," stated the Court. "[Y]ou still can't
say...under the U.S. Constitution,...Big Brother's going to look
after you; you don't need the freedom to contract for your
own...medical care." Judge Sentelle also asked: "The government
knows better than they [do] what [it is that] they want?"
Much of the argument hinged on the definition of a
noncovered service. If the doctor knows that under the applicable
conditions Medicare will not pay for a service, the Court wanted
to know if the service could be regarded as noncovered. Mr. Bondy
said that it would.
"Well, apparently [your opponent] didn't read the rule this
way, and neither did we," said the Court.
The Court suggested that if HCFA produces regulations
consistent with the position taken in the courtroom, which
requires considerable "interpretation" described as a "novel"
reading of the statute, there would be little difference between
plaintiff and defendant.
The Court advised Mr. Brown to sit down and to accept that
the plaintiff could win by losing: "If we accept the government's
position, which is the same as your position, then there will be
nobody to appeal."
Regulations issued November 2 do not implement the
interpretation discussed in Court.
A decision may be handed down in a few months.
"This case may establish the right of an asymptomatic
patient to buy a screening PSA or an extra look at a healing
wound from a doctor who has not opted out of Medicare," stated
AAPS Executive Director Jane M. Orient, M.D. "But what about
life-saving surgery for a leaking abdominal aortic aneurysm, if
this is not available due to Medicare regulations and price
Y2K and Medicare Participation
AAPS Director Lawrence Huntoon, M.D., reminds physicians
that if they sign a Medicare Participation Agreement, they are
agreeing to accept whatever Medicare allows as payment in full
for an entire year, even if that amount is zero. The steady
revenue stream could abruptly stop, especially after January 1,
2000. According to the director of civil agencies information
systems at the General Accounting Office, progress toward solving
the Y2K problem is so poor that under the worst-case scenario "no
claims could be processed." HCFA has "not documented the severity
of the impact of year 2000-related failures," testified Joel
Willemssen. Only 44% of "mission-critical" HHS programs will be
"2000 compliant" by the target date of March, 1999.
HCFA is required to reimburse Medicare contractors for "all
allowable costs"; therefore, its ability to "exert financial
leverage over its contractors to direct funds toward [Y2K-
related] activities is limited," according to information officer
John Callahan (AM News 7/13/98).
Death in the Village. As the AMA rolls out its
Education for Physicians on the End of Life Care (EPEC) program,
"trainers" will be collaborating with the Robert Wood Johnson
Foundation funded program to change the culture of death in
America. The goal is to reach every practicing physician in the
United States within two years (AM News 7/1/98). RWJF
has already implemented a "Pathways" program in Kansas City
through its Midwest Bioethics Center to meet the needs of dying
patients. A pilot training program is now being introduced in 30
internal medicine residencies. One of the benefits of EPEC is to
lower costs by teaching physicians how to "recognize futile care
earlier" (by futility of care guidelines?) and thus "stop
delivering inappropriate care."
Ms. Susan Buchanan, an attorney who runs the Colorado
Collective for Medical Decisions, a futilitarian think tank, is
"excited" about the program (ibid.). The word
"collective" is key here, because it's not just part of their
name, it's an integral part of their philosophy. Apparently, if
it takes a village to raise a child, it also takes a village to
decide when it is time for an individual to die.
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY
A Northerly Breeze from Paradise. The French Canadian
newspaper reports that hospital personnel took it upon themselves
to disconnect a 76-year-old patient from a life-saving respirator
(La Presse 7/14/98). Needless to say, the patient's
family had serious misgivings about the incident.
The lesson to be learned from this tragedy is that if
doctors are de facto employees of the state rather than of
patients, they will-sooner or later-obey government directives
rather than dutifully serving the needs of patients.
Excluding a few clairvoyant students of political
philosophy, no one predicted such a horror story at the inception
of Canada's socialized health care system.
Robert Gervais, M.D., Mesa, AZ
A Purpose Behind Managed Care? I read with interest
Ernest White's observation (AAPS News 10/98) concerning
the GOP's response to the Democrats' HMO bashing. He thought that
the GOP was playing into the hands of Clinton Care/Universal
Coverage. Wouldn't it be interesting if federal laws that
[resulted in] insurance companies practicing medicine were
specifically created by thoughtful and clever socialists in order
to precipitate an eventual "crisis" so that the federal
government could rush to the aid of the victimized American
people? Maybe the "managed cost/rationed care" insurance system
was never more than a straw man.
P. Michael Moffett, M.D., Colorado Springs, CO
Consequences of Price Controls. One effect of having a
Neosocialist organization determining our fees is to give payers
the right to direct activities that should only be guided by our
professional judgment. Another issue is that it gives them the
excuse to access medical records, made much easier if the records
are computerized. This will produce an underclass of people who
have a red flag in their electronic billboards.
James P. Durand, M.D., Mt. Vernon, IL
Where Is It Leading? We have before us the example of
the Weimar Republic. [Its culture was also corrupted] with the
cancers of nature worship and addiction to everything from drugs
to sex, dramatically represented by the effete art of the period
now rightly called the Age of Decadence....
Most frighteningly, the seeds of racism were sown at that
time. The division then was between Aryans and Untermen-
schen, Gypsies and Jews being at the bottom of the pile.
Unequal qualities [used to categorize people in America], based
on trivial but group characteristics, are now being enshrined in
Affirmative Action and the whole panoply of racist laws: the
thesis that is the harbinger of a reaction (the antithesis).
We also see in the schools with Goals 2000 a psychiatric
categorization ("profiling") of all children....There is no
classification for "normal" in the DSM-IV....
We are seeing the Nazification of America, the destruction
of the fabric of an integrated society, in the name of some good.
(Would you expect its introduction in the name of evil?)
Thomas Dorman, M.D., Kent, WA
from Fact, Fiction & Fraud in Modern Medicine,
The Pogrom Continues. After six years of despair, the
federal court handed down a judgment against us for $77,000. Only
minutes before the deadline, the government filed an appeal. As
they promised at the last hearing when the judge lowered the
penalty to this "small" amount, they will again request "more
than the Krizeks are worth." The Hungarian prosecutor Bruce Hegyi
was removed from our case.... He was obviously not cruel enough,
and he was replaced by a woman. It was said in the Nazi camps
that women were more effective.
Mrs. Blanka Krizek, Washington, DC
Unalienable Rights. In my opinion, the fraud, duress,
and coercion elements [referred to in the Nuremberg Code] are
present when patients are sold an insurance policy without
knowing that every word they exchange with their doctor may
become subject to scrutiny...for economic reasons. [There are]
certain rights that are unalienable or "incapable of being
surrendered." The right to privacy in patient-physician
communications even predates the U.S. Constitution.
James R. Merikangas, M.D., Woodbridge, CT