Volume 65, No. 10 October 2009

PHYSICIANS STAND TOGETHER

On Sep 10, 2009, "Dr. Smith" went to Washington.

Nearly 1,000 physicians left their practices to travel, at their own expense, to the Capitol. After meeting with their congressmen, they came to a rally in the Upper Senate Park, organized by AAPS and Tea Party Patriots, to tell Congress to "stop meddling in medicine."

Speakers included physician/congressmen Phil Gingrey (R-GA), Tom Price (R-GA), and Paul Broun (R-GA), and practicing physicians representing AAPS, Docs4Patient Care, Physicians for Reform, and the D.C. Medical Society.

The event was prompted by the AMA's support of bills that would turn more control over to government.

"The AMA's endorsement of H.R. 3200 was bought and sold, at the expense of patients," said Seattle neurosurgeon Michael Schlitt, M.D., who spoke at the rally. "I couldn't stand by without telling Congress and the public that the AMA doesn't represent me, or most of the doctors I know. And it's time Congress listens to real doctors from the frontlines."

Before the rally, two shifts of six physicians held signs in front of the AMA's D.C. headquarters: "Honk if you support your doctor," or "the AMA has sold out patients and physicians." Numerous people stopped to talk, reports AAPS President Mark Kellen, M.D. "They were genuinely interested in our point of view, and 9 out of 10 agreed with us that socialism is bad for America," he said.

It's Not Just the Diabolical Details

When the Pima County (AZ) Medical Society board of directors was considering letters written by other societies objecting to the AMA's position, AMA delegate and Noridian medical director William Mangold, M.D., said that the endorsement was the price of a seat at the table without which the AMA would have no say about "the details."

What details can matter if the key part of the bill com- pulsory insurance spells the death of American medicine? Dr. Tom Price urged an unequivocal "No."

"Getting people to quibble over the details instead of rejecting the whole thing is an old communist ploy," warns AAPS director Curtis Caine, M.D. Passage of any government medical bill establishes that government interference in medicine is acceptable, when it is in fact unconstitutional. Any objectionable details removed now can be added back later.

The U.S. Constitution limits government involvement in people's lives. Nothing in the Constitution empowers government to make deals with some private citizens at the expense of others. By contrast, under the method now being solidified by Obama, decisions are made by "stakeholders" around the table under the guidance of their czars with no limits on what they may impose on their fellow citizens. Stakeholders, in effect, are the only citizens. And they are not equal individuals, but rather unequal collective entities, writes Angelo Codevilla (American Spectator, September 2009).

By definition, non-stakeholders have no stake. And what is at stake for the AMA? According to its 2007 form 990, membership dues constitute only $45 million (17%) of its $266 million revenue. Royalties brought in $54 million, and sales from inventory, $40 million. One cannot tell how much comes from its government-conferred CPT code monopoly.

"For stakeholders, the price of privilege is to lend themselves, and their increasingly captive customers, to the rulers' agenda," Codevilla explains. Examples of this type of government include Mussolini's Italy and Peron's Argentina.

"Reform" would replace Hippocrates (physicians serving patients), with Plato (physicians serving the state), said North Carolina internist Clare Gray, M.D., at the rally.

It's about creating a permanent, majority class of "victims of capitalism" and government dependents, writes Kenn Beeman, M.D., of Tupelo, MS. Shall we call it "two tiers"?

Obama supporters posted a distorted video clip, and bloggers followed the Leader's suggestion that surgeons cut off legs for the money. "Surgeons...there's a death panel for ya."

Physicians Stand with Patients for Real Reform

Addressing the rally, Dr. Kellen said: "We do not need health care reform. We need government reform. Every major problem with cost and access...is due to government...." He called Obama's Sep 9 address "45 minutes of Orwellian doublespeak.... [Obama] spoke the words of freedom such as choice, competition, and responsibility. Yet every proposal he made spoke of rules, requirements, regulations, fees, taxes, mandates. In other words slavery really is freedom." Dr. Kellen warned of trading promised security for freedom.

The Sep 10 rally was a prelude to the "912" demonstrations, which also got scant coverage by U.S. major media. The Associated Press said "tens of thousands"; the British Daily Mail estimated that 2 million people converged on the Capitol, carrying signs such as "Pull the Plug on Obama Care: It Will Kill You." "Wake Up America: Fight Socialism." "Obama, Can You Hear Us Now?" He couldn't, as he was speaking to 15,000 people in Minnesota, at an event funded by the multimillion dollar Campaign for America, asking them to help him "overcome opponents to his health-care plan."

In 1994, Sen. Jay Rockefeller's (D-WV) said, "We are going to pass health reform whether the American people like it or not." Obama will support "whatever it takes" to ram a bill through. This includes the "nuclear option," the parliamentary maneuver of budget reconciliation to avoid a filibuster.

"It's doing what democracy calls for," said Rep. Steny Hoyer (D-MD) yet only 37% of Americans now support pending bills. The Tea Party Express is rolling.

AAPS Member Assaulted at Rally

Barred from entering what they thought was to be a townhall meeting in California, more than 100 people held an impromptu rally, and three physicians jumped up on a park bench to speak and answer questions.

"The government wants to tell me when I can see you," said orthopedic surgeon Glenn Cohen, M.D.

A man apparently lunged at the physicians and was wrestled to the ground by plainclothes policemen (Ventura County Star 8/13/09).

The Tea Party throngs, in contrast, were well behaved, and no one was arrested in D.C.

More Details

From a review of H.R. 3200 by David McKalip, M.D.:

Moratorium on enrollment. The HHS secretary could stop enrolling new providers in a program in which she determines there may be fraud, e.g. dialysis centers (p 706).

Guilt by association. A provider enrolling in Medicare must report any affiliation within the past 10 years of anyone with a Medicare debt or exclusion, and could be denied participation on the basis of such an association (pp 709-710).

Report referrals. A physician could be disenrolled for one year for failure to supply requested records of all referrals to programs at risk of fraud, such as home health (pp 720-721).

The People on the Effects of "Reform"

An August Washington Post/ABC poll asked, "If the health care system is changed, do you think ... will get better, worse, or remain the same? Answers:

Cost: 19% better, 41% worse

Quality: 19% better, 33% worse

Access: 14% better, 40% worse

In other words, people think they will pay more and get less. How much more? Michael Tanner predicts that Americans will pay $820 billion in higher taxes over 10 years, and see insurance premiums rise as much as 95%. If the new entitlement were subjected to the same actuarial standards as Social Security and Medicare, the 75-yr unfunded liabilities would exceed $9.2 trillion (Cato Policy Analysis 9/9/09).

Increasing the "Wedge"

The economic separation of effort from reward, of patients from physicians, because of government policies the wedge has grown steadily. In 1960, 50% of medical expenses were paid out of pocket; now, only a bit more than 10%. This key factor in cost escalation will be worsened by "reform" (www.lafferhealthcarereport.org, August 2009). That's why "Americans would pay even more for less quality and less access" (Wall St J 8/5/09). Instead, we need to empower patients and doctors to manage medical decisions, Laffer writes.

"One of the traditional methods of imposing statism or socialism on a people has been by way of medicine. It's easy to disguise a medical program as a humanitarian project. Most people are a little reluctant to oppose anything that suggests medical care for people who possibly can't afford it."
Ronald Reagan

Word Count

Everything in pending legislation takes a demand-side approach, writes John Goodman. It seeks to use the purchasing power of government to force doctors to change how they practice. The House bill has the word "require" and its derivatives 427 times, "limit" 167 times, "penalty" 156 times, "regulation" 91 times. "Marketplace" and "competition" occur only 3 times each.

Strategic Advice

"If in ordinary life you encounter a real paranoid, there is only one safe way to proceed. Do not enter into dialogue; do not give hostages in the form of things that you want from him; do not make any part of your life depend on his decisions or good will...." (Roger Scruton's advice on "Dealing with Iran," American Spectator, September 2009, could apply here).

Your Money Is No Good Here

Except for tips, a high-end NY restaurant will no longer accept cash. The logic: if you don't have a credit or debit card, you probably don't have a checking account and shouldn't be eating at Commerce anyway. No more armored cars, and the IRS likes it too (Wall St J 9/9/09).

Health Stakeholder/Czar

Health care czar Nancy DeParle, the third most powerful person in American "healthcare," after President Obama and HHS Secretary Sebelius, has ties to numerous stakeholders, including Cerner, Boston Scientific, Accredo Healthgroup, and Triad Hospitals. In 2006 and 2007 alone, she collected at least $3.5 million in fees and sales and awards of stocks in companies that will be under her jurisdiction. Although she is supposed to recuse herself on issues involving a possible conflict, it is hard to imagine any issue that won't involve one of her vast array of former clients, employers, or corporate boards, writes Michelle Malkin (http://michellemalkin.com 8/6/09).

The "Road of Bones"

Describing a journey on the Kolyma Highway in Siberia, Kevin Hughes writes: "This is what statism and socialism are all about: anyone who does not toe the line is dealt with ruthlessly and without appeal." The road was built to service Stalin's gold and diamond mines, while killing as many innocent prisoners as possible. About 95% of the prisoners died of cold, malnutrition, and overwork; their bodies were dumped into the roadbed, on average one every 10 meters. Many victims were turned in by fellow citizens solely on hearsay.

AAPS Calendar

Sep 30-Oct 3, 2009. 66th annual meeting, Nashville, TN.
Sep 15-18, 2010. 67th annual meeting, Salt Lake City, UT.

AAPS Sues White House for "Snitch" Site

Together with the Coalition for Urban Renewal and Education (CURE), AAPS has filed suit against the Obama Administration for violating the Privacy Act and First Amendment rights by establishing an email address to report "fishy" misinformation about the Obama health reform.

On the eve of the first planned filing date, the "flag" email address was shut down. Macon Phillips, Director of New Media, who is named in the lawsuit, said that "to better understand what new misinformation is bubbling up online or in other venues" and to "consolidate the process," a new address for feedback had been set up: www.whitehouse.gov/realitycheck/contact (Sarah Foster, News with Views 9/1/09).

In its complaint (Civil Action No. 09-1621-EGS), AAPS writes: "In the public-policy debate, the Executive Branch of the federal government enjoys an advantage in its ability to chill speech...(i.e. to intimidate the public), particularly in regulated professions such as medicine."

The Court is asked to order the White House to expunge information already collected, discontinue the solicitation, and to refrain from further information-collection activities regarding exercise of free speech.

The complaint is posted at www.aapsonline.org. The American Health Legal Foundation is helping with funding.

Mandatory Compliance Programs

Compliance efforts that are now voluntary may become a condition for participation in Medicare or Medicaid under proposed reforms. Failure to maintain "core elements" could lead to mandatory disenrollment or civil monetary penalties. These requirements include written policies, a designated compliance officer and compliance committee, training, an anonymous reporting mechanism, and disciplinary guidelines. All this would involve a "significant enhancement of program requirements" (BNA's HCFR 8/26/09).

Remember that "everything you should have read can be used against you." In the past "you may have heard that you're better off without a written compliance plan," so that an investigator couldn't use it as evidence that you knew you were violating the rules. Lack of a plan will not protect you against investigation or prosecution. Investigators have seized CPT or ICD-9 code books as evidence. And failure to check carrier websites for updates shows you purposely ignored the rules (Medical Practice Compliance Alert 9/7/09).

"Incident To" Services

Physicians who bill for services given by nonphysicians need to assure that these caregivers meet CMS qualifications. Also they need to be immediately available if a practitioner needs help (ibid.). Of the services it reviewed, the Office of Inspector General found 21% of them to have been provided by "unqualified practitioners" (MPCA 8/24/09).

Tenth Amendment Lawsuits?

In 30 states, the ObamaCare provision that all medical facilities provide translators would conflict with English-only laws. The cost of "language-appropriate services" would be astronomical, and would drain personnel already in short supply for the military (Collins Report 8/17/09).

Crack in the Wall of Sham Peer Review

In Richard Chudacoff, M.D., v. University Medical Center of Southern Nevada, a doctor won a partial summary judgment. The Court held that "Prior to being deprived of a protected property interest, Dr. Chudacoff was entitled to notice and an opportunity to be heard."

Dr. Chudacoff, an obstetrician-gynecologist in charge of supervising resident physicians, was a whistleblower who complained about the quality of care rendered by residents and made recommendations about improvements. His privileges were suspended, his employment was terminated, and he was ordered to undergo drug testing and physical and mental evaluations.

The Court noted that the medical staff bylaws offered a Hobson's Choice at the "fair hearing": the "physician may represent himself or be represented by any other individual of his choice, including a licensed attorney. A licensed attorney, however, is not allowed to call, examine, or cross-examine witnesses or otherwise present the case." In other words, a person trained in advocacy would have to remain silent!

Dr. Chudacoff was subjected to several tactics characteristic of sham peer review, notes Dr. Lawrence Huntoon, Chairman of the AAPS Committee to Combat Sham Peer Review: the ambush (failure to advise the physician of the charges); the secret investigation; the "disruptive" label; and failure to allow timely access to documents needed to defend himself.

Unfortunately, his win applies only to hospitals that are considered "state actors."

Too Few Doctors Purged, Public Citizen Says

Hospitals are failing to "discipline and report doctors who endanger patients," says Public Citizen. The evidence: nearly half have failed to file a single report with the National Practitioner Data Bank (Modern Healthcare 6/2/09). The "notches-on-belt-equals-quality" system does not distinguish sham from honest peer review, Dr. Huntoon observes.

Pharmacists Forced to Dispense Plan B Drug

The Ninth Circuit Court of Appeals overturned a lower court ruling that put a hold on a 2007 Washington State pharmacy board rule requiring pharmacists to dispense all legal drugs, even if they violated religious beliefs. A lawsuit had been filed by a small family-owned grocery store and pharmacy and two individual pharmacists. Of concern are Plan B "morning after" drugs, which may cause abortion, and also lethal cocktails recently legalized under a new assisted-suicide law.

ACLU, Planned Parenthood, and the pro-abortion Northwest Women's Law Center objected to the "refuse and refer" system the injunction set up. The new rules allow a pharmacist to opt out only if another pharmacist is available on-site at the time the customer wants the drug. Pharmacists can't get in the way of a patient's "right" to a prescription.

The ruling "immediately endangers conscientious pharmacists in Washington State and also strikes a blow at medical professionals throughout the West Coast," said Brad Dacus of the Pacific Justice Institute, which filed an amicus brief in support of the pharmacists. "The Ninth Circuit's reinstatement of these regulations, despite strong evidence that they targeted people of faith, renders the Free Exercise Clause meaningless" (LifeNews.com 7/8/09).

Correspondence

Automatic Fund Transfers. Sec. 163 of the "healthcare reform" bill, called "Administrative Simplification," would allow the federal government to arrange real-time access to individual bank accounts in order to facilitate automatic electronic fund transfers. The apparent goal is to dovetail a real-time electronic payment/remittance advice system with electronic fund transfer from individual accounts.

Given the economic incentives, it is likely that these transfers will become the only method of paying for medical care (with the exception of cash-based practices, if these still exist). Since the last Government Accounting Office study found that Medicare gave the wrong answers to questions posed 96% of the time, this drive to automated fund transfers is downright frightening. Most people do not want someone with a 96% error rate to have anything to do with their money.

The Improving Medicare and Medicaid Policy for Reimbursement through Oversight and Efficiency Act would require all Medicare and Medicaid payments to be made via direct deposit in federally insured banks. If this is set up in the same way as Medicare direct deposit is now, it will allow transfer both into and out of the account, so that whatever the government portrays as "improper payment" may be removed quickly and efficiently. Physicians who currently opt for electronic fund transfers have to sign an agreement that allows the government to do this.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

Real-Time Adjudication. Sec. 163 would also "enable the real-time...determination of an individual's financial responsibility at the point of service and, to the extent possible, prior to service, including whether an individual is eligible for a specific service with a specific physician at a specific facility, which may include utilization of a machine- readable health plan beneficiary identification card."

You can't do real-time determination unless you have real- time accounting for all health transactions. Otherwise you'd have no idea where people are in their deductibles (to use just one example). You can never get real-time accounting unless you outlaw cash payment. A better solution is to put the whole system on a cash basis, and let government take care of income subsidies. No need to do real-time determination of anything. ERs would be stuck, but they're stuck now.

Most upsetting to me is that software somewhere would be determining my eligibility to see a specific physician for a specific procedure.

Note to Obama: my current insurance doesn't worry about real-time determination or eligibility; I like it just fine.
Linda Gorman, Ph.D., Independence Institute, Golden, CO

Abortion Coverage. Supporters of pending bills claim that we shouldn't worry about taxpayer-funded abortions, as abortions are not mentioned in the bills. This is a cute obfuscation. The way health insurance works is that if it isn't specifically excluded, it is covered. That is why your policy will list many pages of exclusions. It is impossible to list everything that is covered. If abortion isn't mentioned, it's covered.
Greg Scandlen, Heartland Institute

Medicare Approval Rating. Investors loved Bernie Madoff for the 25 years he was scamming them. If you had polled them 10 years ago, I bet he would've had a 97% approval rating.
Alieta Eck, M.D., Somerset, NJ

Public Plans. What a ruse it is to say that the public option won't be able to dip into other federal funds to make up deficits or comply with mandates. Once the plan is in place it can be changed by amendment or executive order. I've heard such assurances about government plans for 40 years....
Robert Hamilton, M.D., Godfrey, IL

Mandates No Guarantee. Ask a Medicare beneficiary who can't find a doctor willing to accept the program's low payment: coverage does not mean access to care. Nor does it guarantee payment or make people fiscally responsible. In 2001, doctors and hospitals were stiffed for $14.9 billion in unpaid deductibles and copayments 30% of uncompensated care!
William Snyder, Scottsbluff, NE

Crowd Out. I applied for a loan, thinking that with the stimulus package, banks would be lending. They're only lending to one entity. The only ways the Fed can get the trillions it is spending are to tax, print, borrow from foreigners, or borrow from banks. Only the last is currently viable. Soon, the Fed will control all the money in the U.S.: the single borrower, the single lender, the single payer.
Ralph Weber, C.L.U., Paso Robles, CA

Scapegoats. It is painful to see that the U.S. is committing suicide as my home country Germany did many years ago. Stupidity is the prevailing modus operandi. One small but significant example: it took less than 24 hours to blame physicians for the death of Michael Jackson. No one of any credence is protesting or trying to explain how fallacious this premise is. It looks as though someone has revived old German anti-Semitic rants, with a change: Die Juden [�rzte] sind unser Ungluck (Jews [physicians] are our misfortune). The order of collapse makes statistical sense: more people need to bank, live in a house, and drive a car than get medical treatment.
Walter Borg, M.D.