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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 55, No. 5 May 1999


The Information Age promises unprecedented advances in science, technology, and human freedom. At the same time, it is a threat to would-be monopolists and oppressors.

A direct assault on the free electronic exchange of information is likely to fail. A better strategy for blunting the power of the worldwide web (perhaps turning into Al Gore's Internet or an equivalent) would be to capture it in the name of protecting intellectual property.

Consider this hypothetical plan: Pass a law supposedly intended to "incentivize" useful collections of information by protecting the initial database compilers against "piracy." Include broad proscriptions against "use" of the data without the permission of those who, for all intents and purposes, now own it. Demand (by other laws) expansive data collection, with reporting in standardized electronic format-say as a condition of insurance reimbursement or access to medical care.

This could be a perpetual profit machine for the first- comer. For medical databases, there could be especially handsome rewards for minimal investment: "Providers" would do the work of gathering the data, pay for the equipment and standards to submit it, and then pay again to use it. The profit potential of a small levy on every medical transaction is immense (as Ross Perot of EDS can testify).

Corporations threatened by technologic advance could enter agreements blocking would-be innovators' access to necessary information (Fraser Forum, March 1999).

Power to the public partner, profit to the private partner: an irresistible concoction. Many ingredients are ready to mix. Take the Medicare price control system (the Resource-Based Relative Value Scale and the Prospective Payment [DRG] System). Add increasingly Draconian enforcement provisions and coding requirements. Sift in the "Administrative Simplification" provisions of Kassebaum-Kennedy, including unique patient and provider identifiers. Fold in more data requirements in the name of "quality assurance," "patient protection," immunization tracking, medical and psychological risk assessment of children in school-based clinics, medical credentialing, and "resource allocation" (rationing and central planning). Leaven the mixture with the Collections of Information Antipiracy Act (H.R. 354) and watch it rise: the ultimate system for centralized command and control.

H.R. 354, which has passed the House of Representatives twice in previous sessions of Congress, makes no mention of medical information. However, the bill is very broad, and private medical records are not among the specific exemptions. Staff of the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary denied a request by AAPS to testify at the March 16 hearing. AAPS written testimony is posted at www.aapsonline.org, along with a letter to more than 500 medical societies concerning this important legislation.

A key witness urging passage of the bill in the 105th Congress was Richard F. Corlin, M.D., Speaker of the AMA House of Delegates (see www.house.gov/judiciary/41145.htm or the AAPS web site). Dr. Corlin cited the "significant revenue" derived by the AMA from its databases, including the Physician Masterfile, the Current Procedural Terminology (CPT), FRIEDA, and Practice Parameters. Annual revenue of at least $15 million is threatened by court decisions holding that the AMA has abused its copyright on CPT codes by charging high royalties for information that physicians must have in order to comply with federal regulations. An amendment suggested by Dr. Corlin, to expand the bill's scope to cover qualitatively or quantitatively substantial extractions of information so as to harm an "actual or potential market," has been incorporated in this year's version. He discussed how someone could harm the AMA by extracting and republishing a mere 150 of 7000 CPT codes.

The AMA was absent from this year's hearing. Dr. Randolph Smoak, Chairman of the AMA Board of Trustees, when asked about the AMA's position, stated that the Council on Legal Affairs was reviewing the matter. There was a need, he said, to balance the integrity of the medical record with its use by Plans, as for developing new management strategies.

AAPS was, by the time of the hearing, the only physicians' organization to join 116 others in a statement opposing "legislation that would grant the compiler of any information an unprecedented right to control transformative, value-added, downstream uses of the resulting collection." Such a right would reverse long-standing policy that facts cannot be owned.

According Charles Phelps, Provost of the University of Rochester, the bill would provide a database proprietor "with sufficient ammunition to ... foreclose the very educational, scientific, and research activities that should be preserved."

Given the harsh penalties (5 years in prison and/or a $250,000 fine), few will be willing to test the limits of the law, which is extremely broad, ambiguous, unpredictable, and subject to manipulation by private interests, according to Andrew J. Pincus, General Counsel, U.S. Dept. of Commerce (oral testimony posted at www.house.gov/judiciary/4.htm).

Though a subcommittee staffer denied that the bill was intended to apply to medical records, the fact is that "a growing number of entities are staking increasingly aggressive claims to medical records." In the past, physician ownership of medical records "was nearly synonymous with `owning' or controlling the patients" (AM News 4/5/99).

"Information is the currency of our economic age," stated Mr. Pincus. It is also the key to building the infrastructure for a command economy and for enforcing its dictates.

In the upcoming Data Wars, the battle for freedom in medicine may be won, or lost.

Capturing the Old and the Young

The Outcome Assessment and Information Set (OASIS) (also see p. S2), required of home health agencies as a condition for federal funding, has no statutory foundation, according to Twila Brase, R.N., President of the Citizens' Council on Health Care (cchc-mn.org). Contrary to the assertions of HCFA officials, 1997 Balanced Budget Act requirements to provide data for developing a prospective payment system for home health could be met with aggregate Medicare claims data. For this objective, HCFA does not need 12 pages of fine print, each one bearing a copyright notice, including no fewer than 53 boxes about toilet or "elimination" performance.

"This is ... unconsented government research on vulnerable subjects," stated Ms. Brase.

OASIS has been under development by HCFA and the Robert Wood Johnson Foundation (RWJF) for 10 years. Its use in home health is the first step. HCFA is "considering the possibility of using the OASIS in our monitoring of managed care organizations in the future" (Federal Register, 3/10/99).

Centralized records for children are a feature of the CATCH (Community Access to Child Health) program, a project of the American Academy of Pediatrics, funded by Wyeth-Lederle Vaccines, RWJF, and others. CATCH 2000 envisions that all children will have a "medical home" and not miss any preventive medical care (e.g. vaccines).

"Universal access, with a defined benefit plan and a population focus, to which physicians are bound, has all the elements of socialized care," wrote pediatrician Susan Atkins, M.D., of Richmond, VA, upon reviewing the plan. "Centralization of records, with linkage to (unspecified) support, education, and other services, represents a serious loss of patient privacy....Pediatric records frequently contain substantial family information, including financial details for income-based programs. Fully implemented, this plan would result in a major transfer of medical and family decision making...to an ill- defined group with unclear accountability."

Meanwhile, the Robert Wood Johnson Foundation program All Kids Count, which is ostensibly about local immunization registries, is working toward the much broader goal of "making medical homes real." The spring, 1999, report notes that 18 states now have registries, and 10 mandate reporting by physicians. There may be an exemption-which local medical societies may fail to mention-if the patient or parents object.

(Many states' statutes are searchable through the National Vaccine Information Center web site, www.909shot.com.)

RWFJ President Steven Schroeder dismisses the idea that his organization has a specific agenda; it merely provides data. However, in the 1880s Richard Ely, a proponent of the New Political Economy of government intervention, wrote: " It is clear that the aim of fact-gathering is to mold the forces at work in society."

Accessing Federal Data

The federal government and its private partners have a very different view of their data, as opposed to our data (the latter may be seen as rightfully theirs, but not vice versa).

Thus, consternation followed in the wake of an add-on to the giant FY 1999 Omnibus Spending Bill, sponsored by Sen. Richard Shelby (R-AL). This provision requires that data obtained in federally funded research be released under the Freedom of Information Act (FOIA). (FOIA has exemptions to protect proprietary or identifiable patient data.)

One reason for the requirement is the Environmental Protection Agency's (EPA's) refusal to allow outside analysis of controversial data used as the basis for Clean Air Act regulations on particulate matter. EPA head Carol Browner stated that the material belongs to Harvard. Some scientists within the EPA risked their careers to write a letter of protest, alerting the public "that EPA regulations and enforcement actions based on poor science stand to harm rather than protect public health and the environment" (DDP Newsletter, July 1998, www.sitewave.net/ddp).

Proposed rules-contrary to statutory language-would permit access only to published data actually used in promulgating rules, and would impose extra costs. Still, many federally funded institutions are calling for outright repeal, as in H.R. 88, introduced by Rep. George Brown (D-CA) (Science 283:307, 309; 283:1114). According to an April 2 report in Science, 1,600 public comments were running 4:1 in favor of restricting access. However, supporters of data access, such as AAPS, were in the majority by the deadline of April 5-a testament to the power of the Internet. AAPS comments (posted at www.aapsonline. org) were sent to all members who have supplied e-mail addresses.

Data of particular interest include the results of vaccine trials, especially of those vaccines that are forced upon children, and psychological questionnaires administered to children in federally supported school-based clinics.


Donna Shalala, in 1997 patient privacy recommendations: "Individuals' claims to privacy must be balanced by their public responsibility to contribute to the common good, through use of their information for important, socially useful purposes" such as health care system oversight, public health and safety, health research, and law enforcement.

Don E. Detmer, M.D., Chairman of the National Committee on Vital and Health Statistics: "The privacy fundamentalists seek the right to remain unknown. The most extreme of this group would also demand that everyone's data be treated that way as well. They would hold the entire culture hostage to their viewpoint and in this sense have been referred to as privacy terrorists."

AAPS Calendar

May 21-23. AAPS Board Meeting, Chicago.
Oct. 13-16. 56th annual meeting, Coeur D'Alene, ID.

Innovative Data Collection

On-Line CME. Interactive propaganda, with tracking of multiple-choice or true-false responses, is now required as ethics CME in Texas (see p. 4). Monitors can check whether physicians have accepted such ideas as "the best means of asserting autonomy in the health care setting" is to "have representation on committees charged with developing the rules." Reading materials are carefully worded to appear "balanced," but frame the terms of debate in a particular way. The conflict is portrayed as one of "commercialism vs. professionalism," not as traditional, Hippocratic patient-based vs. collectivist population-based ethics. Dogma is stated as fact: "Such risk avoidance [underwriting?] denies care to those most in need and is not a characteristic of national health insurance plans in other industrialized countries."

"Frequent Shopper" Cards. Many grocery stores and pharmacies now offer (or just send) bar-coded "discount" cards to collect purchase information to "share" with retailers, manufacturers, and unnamed others. The IRS? The Fat Police?

Ron Paul Seeks Defunding of Unique Identifier

Last year, Congress passed a provision in the Omnibus Budget which forbade the expenditure of funds to implement the unique personal identifier authorized in the Kassebaum-Kennedy Act. This identifier could be used to create a national data base containing everyone's medical history.

The prohibition will expire this year unless it is reenacted. Congressman Ron Paul, M.D., (R-TX) will again take the lead on this issue.

"What ID numbers do is centralize power," explained Richard Sobel, research fellow at Harvard Law School, "and in a time when knowledge is power, then centralized information is centralized power" (NY Times 7/19/98).

The whole idea of the American political system, Sobel stated, is "to be inefficient, to divide power."

Update on the Physician Profiles Project (PPP)

As other states contemplate placing physician data on the Internet, they may wish to review the results of the PPP now in effect for three years in Massachusetts.

Leonard Morse, M.D., who served on the Massachusetts Board of Medicine for 5 years, notes that "errors have occurred and physicians have been indelibly harmed by misinformation recorded on their profile." Barbara Rockett, M.D., like Dr. Morse a past president of the Massachusetts Medical Society, stated that the Board has received 4500 calls due to errors. The program has diverted substantial funding from the Board's disciplinary function.

Physicians are singled out although 92% have an unblemished record. None of the other 27 licensing boards in Massachusetts have a profile program.

Time to Opt Out of Medicare or Managed Care?

Before you put all of your tax information away, you might want to use the data to do the "HCFA" (the AAPS Hassle Coefficient Factor Analysis) for the Medicare, Medicaid, CHAMPUS, or managed-care part of your practice. The enclosed form is reprinted as originally distributed in October, 1996-before the 1997 E&M Documentation Guidelines, the Correct Coding [downcoding] Initiative, the Medicare Integrity Program, and the deputizing of senior citizen bounty hunters.

While AAPS has always advocated nonparticipation on philosophical grounds, a respected practice management consulting firm is raising the question for purely economic reasons ("Is it time to re-think being a Medicare provider?" Conomikes Reports 18(9):4-5, April, 1999).

Conomikes suggests determining these figures: total charges, Medicare charges, Medicare percent; and total payments, Medicare payments, Medicare percent. Then consider the projected drop in Medicare payments, as with changes in the computation of the overhead component.

Now ask: What would be the maximum impact of opting out? If all patients changed physicians rather than pay privately, volume might drop 25%, but payments might drop only 19%. Chances are, some Medicare patients would stay, and some of the Medicare volume could be replaced with other sources of payment.

"While dropping out of the Medicare program would be a major strategic move for any practice, it is not inconceivable," Conomikes concludes. Factors favoring the decision to opt out include: Medicare volume less than 25% of total charges; a two- week waiting list of patients; a solo or very small group practice; physician's personal finances under control; payment differential from other payers of at least 10%; and an ability to market covered and non-covered services to attract new patients.

A kit for taking advantage of the opt-out provisions of Section 4507 of the Balanced Budget Act is available at www.aapsonline.org. Member physicians may obtain personalized advice from the AAPS Limited Legal Consultation Service. All are invited to share experiences on the AAPS forum, accessible from the home page or directly at aaps.forums.entrewave.com.

Bankruptcy Postponed

In 1993, the Medicare Trust Fund was slated to go broke in 6 years (1999). The 1998 Trustees' Report projected bankruptcy in 2010. The 1999 Trustees' Report places the Day of Reckoning in 2015: before most baby boomers retire. Reasons given by CBO Director Dan Crippen: a significant increase in payroll tax collections in 1998; a $4.6 billion slowdown in payments to providers; and "reverse creep" (downcoding in response to stepped-up compliance actions).

What will happen when the year 2000 rolls around is anybody's guess, concluded AAPS Public Relations Counsel Kathryn Serkes, who attended the April 6 briefing on the Trustees' Report. "Y2K preparations have been negligible so far," stated former CBO director Robert Reischauer. The medical field is one of the least prepared.

Despite the graphs showing huge gaps between projected income and expenditures, Marilyn Moon of the Urban Institute said: "The Trust Fund report is relatively good news....We must be doing something right." She assumes that "health care spending will decline per capita over time" as "mortality cannot endlessly increase." She apparently believes, however, that Medicare is not sufficiently generous: "Where we are today is not where we should be today. A wealthy population can afford to share its resources with seniors."

The prospect of physicians opting out of Medicare is "not on the radar screen yet," Ms. Serkes reported.

Members' Page

Mandated Inaccuracy. The ICD-9 codes have expanded to include new and absurd details, to clinically irrelevant degrees of specificity. Often, there isn't a code that fits, or one's knowledge, at the time of the medical service, cannot reach the degree of specificity demanded. Data implying a higher level of precision than exists are inherently more inaccurate. HCFA's Byzantine coding system has reached the point in which most physicians will begin to equate the fifth digit, without which the claim is unprocessable, to mean "I simply don't care."

HCFA's coding requirements change so rapidly that not even HCFA can keep up with them. In fact, bureaucrats should be heavily fined and imprisoned for producing hundreds of thousands of Medicare manuals containing outdated and inaccurate information. Such actions represent deliberate ignorance and reckless disregard for Medicare law and clearly constitute health care fraud on an enormous scale.
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY


The Leading Edge. I feel that AAPS has been at the leading edge of the proper response physicians should take to the terrible damage now being done to American medicine....

Today some would argue that telling the truth doesn't count. Managed care came in on a flood of lies...I am convinced they want to create waiting lines and will feed off the "float." Those of us who believe in truth will have to keep hammering away. Since entering practice, I have belonged to the AMA and the state and local medical society. I have done all I can to awaken them to the fight ahead. In St. Louis, physicians of like mind started as a dissident voice at the local society and now have had a string of presidents at the local society, some state councillors, and will soon have a state president. We are still a minority, but I see signs of awakening.
Newton B. White, M.D., Town and Country, MO


Two Americas. From a letter to Rep. Henry Hyde: In the second america, law after rule after regulation is imposed upon "we, the people." We are also forced to give up more and more of our property to support the First America, the denizens of the Federal Gigantocracy, who exempt themselves from the rules that govern the rest of us, as well as from the most basic standards of morality and common sense. Sad to say, the majority of your colleagues, Democrats and Republicans alike, have their allegiance to the First America.
Jesse A. Cole, M.D., Butte, MT


A Private Partnership. We are an HMNo ...We are doctors, not providers: a small, independent family medicine practice that is focused on the patient. We don't handle insurance. Patients pay us directly-so our bills are written in plain English....[excerpts from a patient brochure]
Jonathan Sheldon, M.D. and Heather Sowell, M.D., Englewood, CO


The Philosophy in Required CME. To renew my Texas license, I was required to take ethics CME from Medical Education Group Learning Systems (www.megls.cme.edu). Now they disguise the neosocialist agenda under the cover of ethics newspeak in a travesty of dishonest hired philosophy in which the ends justify the means. The new medical ethic places the doctor-population on top of the doctor-patient relationship. Medical autonomy becomes a mockery: acceptance of the rules made by "representatives" of our profession becomes a legal justification. This is unacceptable. And the AMA is not my representative....I have moved to Peru. Things are bad, but we still have freedom and medicine is not criminalized.
Jaime Durand, M.D., Lima, Peru


Breakfast Rights. I'm giving a speech on "Liberals in Republican Clothes: Why the Left Has Won the War." The last straw: Sen. *** coming out for passenger rights because he wasn't served breakfast on a flight from Phoenix to California. I should pay more airfare so he can have an airline breakfast!
Craig Cantoni, Capstone Consulting, Scottsdale, AZ


The Key to Fraud. From a letter to Rep. Ron Paul, M.D.: The magnificent magnitude of data conceals criminal tapping into the money pipeline. The theft of millions of Medicare dollars would be impossible if the current Medicare electronic claims system did not exist. Electronic claim filing with automatic payment to any sender was the brilliant scheme of insurance carriers to force physicians to do all of their administrative work for free. I now receive more mail from the Texas Medical Association about regulations than about the science of medicine. The headline ("Don't let Medicare billing slow your payments") is followed by a pitch on how TMA members may buy a book for the special price of $205 instead of $297 to unlock the money pipeline to Medicare. Selling such merchandise and doctor name lists is the way medical associations generate income as a bureaucracy.
Richard Swint, M.D., Paris, TX


Physician Cleansing. Medicare could run out of doctors before running out of money as a result of the new Bounty Hunter program, creating an opportunity for provocateurs disguised as patients to shake down or entrap physicians.
Samuel Nigro, M.D., Cleveland Heights, OH

[Copies of the Grassroot Grannies alert on this program, for you to duplicate and distribute to patients, are available on request.]

Legislative Alert

Setback for Medicare Reform

The bipartisan National Commission on the Future of Medicare failed-by one vote-to approve the reform plan put forward by its Chairman, Sen. John Breaux (D-LA). HCFA bureaucrats just missed being hit by the political equivalent of an asteroid. Close call for them. But the fallout is still continuing: health policy analysts, from the conservative think tanks to the Progressive Policy Institute, view the failure to reach a viable consensus as the loss of an extraordinary opportunity to secure a superior system of patient choice for today s seniors and for future generations of retirees.

In the tortured area of health care policy, butchered with bad law in a bipartisan spirit since the failure of the Clinton Plan in 1994, the Commission started to emerge as one of the few positive features of an otherwise badly flawed 1997 Balanced Budget Act. Such panels normally don t have a great track record. But in this case, the panel really performed a public service, collecting data and solid testimony-as from Dr. Robert Waller s (of Mayo Foundation fame) account of the mind-numbing complexity of Medicare s regulatory system: 111,000 pages of rules, regulations and related paperwork.

Again, when crunch time came this past month, the Commission voted 10-7 in favor of the Breaux plan, just one vote short of the statutory requirement for a formal commission recommendation to Congress and the White House. All of Clinton s appointees voted against it.

In the days leading up to the final vote, Senator Breaux, who had secured the support of Senator Phil Gramm (R-TX) and a solid phalanx of conservative members of the panel, had hoped to get the White House on board. His failure wasn t for lack of effort. If this doesn t put an end to all of the "New Democrat" rhetoric, it s hard to imagine what will.

The outcome is perhaps summed up best by Chris Matthews, former top staffer with Speaker Tip O Neill and now columnist for the San Francisco Chronicle and host of the nationally televised talk show Hardball: "Mediscare." Politicians think that the best option for them is to "scare the hell out of the old people," hoping that it will carry them through just one more election.

Make no mistake about it. The Breaux plan, as outlined, was no free marketeer s dream. The attempts to woo liberals on the Commission made it less so. Nonetheless, it was a substantial improvement over what doctors and patients are struggling with today, and an excellent starting point for a real debate about the structure of Medicare. The congressional fights about the details, such as the level of insurance regulation, would have been tough and tiring, and even bitter. But the fights would have taken place on a new and unfamiliar terrain of patient choice and competition, and not on the terms of regulation and cost control.

Different terms of debate lead to different outcomes in debate. This debate would have dramatically changed the dynamics of the system. It would have been a massive shift to patient choice of plan, and it would have forced health insurers to do something that they do not normally do in the American employer- based health insurance market: compete directly for patients' dollars. Competitive private plans are superior precisely because they stand a good chance of being de-selected by patients if they start playing the kinds of games that are routine in the comparatively unpopular managed care networks that now dominate employer-based insurance.

Instead of embracing the Breaux Medicare reform, a proposal also backed by fellow commission member Sen. Bob Kerrey (D-NE), Bill Clinton has proposed earmarking 15% of projected budget surpluses to the Medicare "trust fund." This approach has come under fire from government accountants at the General Accounting Office (GAO) and the Congressional Budget Office (CBO), who note that pouring money into the trust fund is merely a paper transaction that does nothing to solve Medicare s structural problems. The GAO has scored this approach as a loser, noting in devastating testimony before the Senate Finance Committee that simply throwing money at Medicare only lulls an unsuspecting public into complacency and makes the job of real reformers even harder.

The good news is that the issue is not going to go away. Even though he failed to secure the requisite number of votes on the bipartisan commission, Breaux has vowed to offer legislation this year. Expect House and Senate Republicans to join him, and a preponderance of moderate and conservative Democrats, as well. This thing is not over. Members of Congress can run from it, but they cannot hide. They cannot continue to just keep extending the life of the trust fund with accounting gimmicks or price controls or various other legislative shenanigans designed to make its patchwork approach seem like statesmanship. Congress is going to have to make a profound policy choice about Medicare.

The key to real reform of Medicare may not rest with the graying legions of the American Association of Retired Persons, but with the bulging baby boom generation, a generation big on personal experimentation and autonomy, not the kind of folks who are much into following the kind of rules dreamed up by Nurse Ratchet over at HCFA. Stay tuned.

The Arrogance of Power

Probably no agency in Washington daily makes a better case for reforming Medicare than the very agency that is charged with running it. The Health Care Financing Administration (HCFA) is achieving a rare status among federal agencies. HCFA is starting to make the Internal Revenue Service, which administers a measly 17,000 pages of rules and regulations, look good in comparison.

Let us count the ways. HCFA s been having a tough time with its administrative pricing; its mounting paperwork requirements on doctors, hospitals and other "providers"; its struggles to implement new regulations on private sector health insurance plans as mandated in the Kassebaum-Kennedy bill; and, most recently, the botched "Medicare+Choice" mess. HCFA, armed with more than 800 pages of regulations and restrictive language, managed to deter hundreds of private sector health plans from offering additional choices to senior citizens.

In the face of all of this, Congressional liberals, who can never be accused of learning much from their previous experience with prescription drug coverage in the failed Medicare Catastrophic Coverage Act of 1988, now want to give HCFA authority to manage and price prescription drugs, of all things. Think about that.

To be fair, HCFA has too much to do, and the reason it has too much to do is because Congress, regardless of the free-market rhetoric of its members, insists on expanding, not contracting, HCFA s regulatory authority. One might almost feel sorry for the Clinton team running HCFA. But give them a little time, and then they go out and justify, once again, the mounting Congressional hostility.

Take, for example, HCFA s handling of the nursing home mess. HCFA is supposed to be responsible for monitoring the performance of the thousands of the nation s nursing homes that get Medicare reimbursement-to the tune of $39 billion. Without developing all of the ghastly details, suffice it to say that HCFA performance leaves something to be desired. According to the GAO, neither the federal government nor the states were doing such a hot job, and a quarter of the homes were in such a condition as to put residents at risk of harm. On March 8, the Senate Aging Committee, chaired by Senator Charles Grassley (R-IA), asked HCFA Administrator Nancy Ann Min DeParle to testify about the nursing home mess.

The Senate Committee heard the complaints of ordinary citizens first, the ones who, as a famous White House communicator never stops telling us, are the kind of people "who work hard and play by the rules." In a Republic, these folks, sometimes called taxpayers, are precisely the folks who are supposed to be in charge. Well, according to Robert Pear, the fact that the ordinary, hard-working, rule-abiding folks, the ones without fancy official titles, testified before the Administration witnesses were called got the Clinton Administration into a snit (NY Times 3/23/99). So, the Clinton Administration refused to testify, saying that the Committee "violated protocol" by calling the ordinary folks first. The very idea. Back during the Reagan Administration, Democratic Committee chairmen "violated protocol" whenever it suited them, to score political points. As Pear reports, Senators from both sides of the Senate aisle said that the Clinton Administration s demand on this occasion was "petty and unreasonable." By the way, the Senior Democrat on the Committee said the Clinton Administration s behavior in this instance was "totally unacceptable." His name is Senator John Breaux (D-LA).

HCFA Cares About Your Feelings

It gets worse. Now HCFA wants to force 9,000 home health agencies around America to report sensitive personal information on patients. The idea is to transmit this information to a huge federal data base-and eventually to state data bases-without the patients knowledge.

Under a recently proposed HCFA rule, officials of home health care agencies would be compelled to report sensitive personal information. HCFA s evolving data base-called "The Outcome and Assessment Information Set" (OASIS)-covers a patient s Social Security number; medical history; demographic characteristics, including race and ethnicity; living arrangements; supportive assistance; financial profiles; sensory, respiratory and elimination status; mental state; behavioral characteristics; range of activities; medications; productivity; and "quality of life." This detailed record includes inquiries into whether patients had expressed "depressive feelings," a "sense of failure," or "thoughts of suicide"; used "excessive profanity"; or made "sexual references."

While ordinary Americans would think that none of this is the government s business, HCFA officials see it as their regulatory duty. In a December 15, 1998, letter to Michael Hash, Deputy Administrator of HCFA, Jay Cutler, counsel to the American Psychiatric Association, notes: "There is no requirement that patients would be asked for their voluntary, informed consent before answering any questions or that they would be informed that this information, including their names, would be disclosed to the state and federal governments."

In its initial proposal, HCFA s data collection would not be confined to Medicare patients. Now, with the bright lights of publicity shining on this scheme, HCFA is backing off and saying that it will only collect such personal information from Medicare patients. If this is supposed to make the situation better, the team at HCFA is once again badly mistaken. In truth, HCFA is adding an insult to injury, saying in effect that there will be two standards of privacy: one for senior citizens and one for Americans under 65. This is at least compatible with HCFA s official attitudes toward private contracting in the Medicare program, in which the law (Section 4507 of the bungled Balanced Budget Act of 1997) now establishes two standards for liberty and privacy.

HCFA s latest home health rules are a showcase of Medicare s central planning. In the March 10 edition of the Federal Register, HCFA advises: "Once the OASIS has been administered as part of the comprehensive assessment, the results help to organize planning with greater precision than is currently possible, especially in HHAs that lack a carefully structured approach to comprehensive assessment. The increased specificity in patient assessment (in critical areas of health and functional status) will assist agency staff to uniquely tailor a treatment plan to each individual patient."

Concerning patient care, official Washington knows best: "In the day to day effort to competently deliver effective services to a wide variety of patients with a panoply of needs, the HHA can easily lose sight of the big picture or how the agency is performing overall from the standpoint of effectiveness, efficiency and patient satisfaction."

Technology will speed up obedience: "The nearly universal move toward electronic information systems, including the health industry for areas such as billing and payment, suggests that the sooner organizations learn how to use electronic information systems for patient care and quality assessment and performance improvement, the better they will be able to respond when HCFA proposes to require electronic reporting of OASIS data in the future."

Concerning total cost of setting up the new data collection system, HCFA estimates $1.8 million with enviable precision: "We define an average size HHA as having 18 nurses and other service providers and 486 admissions per year. We estimate that the average time required by an average size HHA to revise assessment forms to accommodate OASIS is approximately 8 hours for revision of the initial assessment forms. The HHA will also require an additional 4 hours for revision of clinical record forms at the 57 to 62 day assessment and for the assessment within 48 hours after a return to home from a hospital admission."

Extra data collection above the routine level will be a snap: " When collecting OASIS data, HHAs will spend an additional 2.5 minutes beyond what they currently use to complete the patient assessment at the start of care."

Members of Congress should ask themselves a big question: Is this the kind of system they want for the next generation of American retirees? That means, for themselves.

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