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

Volume 50, No. 10 October 1994


After AAPS rejected an offer to settle a lawsuit brought in February, 1993, the White House released certain documents of the Interdepartmental Working Group of the President's Task Force on Health Care Reform. AAPS has been demanding public access to those papers for 18 months.

More than 250 boxes of documents have been brought to the National Archives at College Park, MD, a 40-minute ride from metropolitan Washington, DC. A reading room was opened on September 7. Documents are to be available for 60 days, according to Archives staff.

Present at the unveiling were researchers from the national news media, congressional offices, and AAPS staff.

Elaborate security was in place to guard the integrity of the documents, which are ``Clinton Presidential Records'' under 44 USC 2201. (In contrast to agency records, presidential records are not accessible to the public through the Freedom of Information Act.)

``The procedure was rather like that of the rare book room at the Library of Congress, where you can see things like books from Thomas Jefferson's personal library,'' stated AAPS Executive Director Jane M. Orient, M.D.

Archives staff described the procedure as ``lax.'' Reporters were allowed to take their own notepad into the room. Dr. Orient's notepad caused security concerns because neither the notepad nor the loose slips in it (telephone messages from a hotel) had been properly stamped.

There is no index for the documents. Most of them are jumbled loosely into manila folders. There are several looseleaf briefing books. The Presidential briefing book was missing two entire tabs (finances and insurance reforms).

A finding aid entitled ``Health Care Working Groups Sorted by Last Name'' had 614 persons listed; 205 of them reported that they had not retained or had discarded documents, despite a memorandum dated April 21, 1993, to ``All Health Care Task Force Working Group Personnel.'' This memo (found in box number 851) stated that all working group documents were the property of the White House and were to be retained. The memo also noted that the documents were not accessible to the public through the Freedom of Information Act.

Although the Department of Justice asserted in oral argument in District Court on July 25 that the working group had no structure and did not advise the President, box 1747 contains a schedule of meetings with the President, and box 851 has a handwritten note concerning ``consultations w/ Pres.'' There were detailed descriptions of Toll Gate meetings, starting February 10, 1993, to discuss methodology, to prepare a ``synthesis of work for a presentation of options to the President,'' and to have a ``final review of legislation.''

Many of the substantive issues included in the Task Force deliberations should be of intense interest to prospective patients. For example, one committee discussed the exclusion of services to some patients ``if it can be demonstrated that allocating resources to other services will provide more health benefit to the population being served.'' The committee pondered whether such decisions should be made by the National Board or by state boards.

AAPS staff is engaged in a complete review of the documents. What we have already found strongly supports our initial contention: the Task Force was a highly structured group stacked with private interests having a clear agenda: the rapid drafting of legislation resulting in the government takeover of medicine, implemented through private agencies. The Working Groups represented exactly the mechanism that Congressman Monagan described in Senate Report No. 92-1098 (Sept. 7, 1972) on the Federal Advisory Committee Act:

the system of advisory committees that has grown up over the years might well be described as a fifth arm of the Government....There is a growing awareness that an invitation to advise can by subtle steps confer the power to regulate and legislate....

A number of committees ... have been allowed to take on a quasi-decision-making status for a variety of reasons which may include neglect, prestige, technical expertise, academic competence, industry pressure, or even political feasibility....[Such delegation of power] is a derogation of our constitutional system.

Why is the White House now allowing the public this brief window of opportunity to view certain documents?

It appears that the White House is staking its case on a motion to declare AAPS v. Clinton moot on the basis that documents are now accessible to retrospective review. Although FACA requires contemporaneous public participation in the entire process, this is no longer possible now that the Task Force has been disbanded.

The trial date for September 12 has been continued until December 14, pending the outcome of an oral argument on mootness set for October 7.

The White House has also moved to separate the issue of Ira Magaziner's alleged false swearing from the FACA question. In a brief filed Sept. 9, DOJ attorneys complain that the AAPS motion for contempt-of-court sanctions against Ira Magaziner has already damaged his credibility. Although they have declined to defend the truth of Magaziner's declaration of March 3, 1993, on the basis of which Judge Lamberth denied discovery related to the Working Group, DOJ lawyers assert that AAPS has not proved a willful attempt to deceive.

AAPS continues to press for an open public hearing in which Magaziner can be cross-examined about what he knew and when he knew it.

Are You Guilty of a Coding Felony (II)?

Mr. Edgardo Perez-DeLeon is nearing the end of a one-year jail term for the felony of using a code for ``office visit'' to describe a service that did not include a physical examination (see AAPS News, July 1994). AAPS cannot determine whether the same fate could await many of our members. We have received non-answers to our correspondence:

To: Frank Kelley, Attorney General of Michigan, P.O. Box 30212, Lansing, MI 48909, June 6, 1994:

Mr. Edgardo Perez-DeLeon has brought to our attention his concerns relating to the term "office exam" in the Medicaid Provider Manual. We are requesting you to clarify with a legal opinion whether this term requires a physical examination in each and every instance.

Mr. Perez-DeLeon has made you aware that the term has been in the Medicaid Provider Manual since 1985, although in 1992 new Evaluation and Management CPT/HCPCS codes went into effect. The 1992 codes do not require a physical examination for all established patients seen at the office. Mr. Perez-DeLeon also made you aware that in April, 1992, the Medical Services Administration established a conversion between the old medical care codes (service 90000-90080) and those new codes. (As we understand it, this was a "cross-walk" for the administrative convenience of HCFA; definitions were changed in such a way that there was no one-to-one mapping between the two sets of codes.)

Furthermore, Mr. Perez-DeLeon made you aware of his understanding that the Omnibus Budget Reconciliation Act of 1989 does not require a physical examination as part of a physician's service. He was not able to find anything in the Social Welfare Act or the Medicaid False Claims Act concerning the office exam. Specifically, it does not state (as far as we can determine) that when no physical examination is done, a physician billing for an office exam has billed for a "service not rendered" or for a "service not separately payable but payable incident to other service in which a physical examination was provided."

Our Association is requesting your legal opinion because ...policies established by the AMA in its CPT manual, and by HCFA in its Michigan carrier publication The Record, appear to contradict statements made by government expert witnesses whose testimony led to the conviction and incarceration of Mr. Perez-DeLeon for Medicaid and health care fraud....

The specific circumstances related to Mr. Perez-DeLeon's conviction and denial of bond are not relevant to the legal opinion requested by the AAPS. However, this Association must clarify for its members, both in Michigan and other states, the issues that Mr. Perez-DeLeon has brought to our attention....

On July 20, 1994, Mr. Kelley acknowledged receipt of our letter and stated: ``As I advised Mr. Perez-DeLeon, the Attorney General issues opinions at the request of the governor, legislature, and other state officials.''

To: Patrice A. Helwig, Coordinator, Medicare B Medical Utilization, Review Department, Mail Code #1507, Blue Cross Blue Shield of Michigan, 600 Lafayette East Detroit, MI 48226, July 30, 1994:

We have received a copy of your refusal to respond to questions from Mr. Edgardo Perez-DeLeon, addressed to [his wife], dated July 1, 1994....

[W]e are not able to answer his questions nor similar questions raised by our members. At a minimum, we would like you to answer, for the benefit of our members, the following questions:....(1) Are there certain codes for "office visits" that require the performance of a physical examination in each and every instance? (2) What satisfies the definition of "physical examination"? For example, are gait, general appearance, and vital signs part of a physical exam? Are they sufficient, or necessary?....

Our members wish to comply with the law. To this end, they must know what the law demands. It appears to us that your personnel are involved in decisions related to whether the physician is in compliance, or whether he deserves to face felony charges. Therefore, you must have information about the law's requirements....

To: AAPS, August 24, 1994

Your questions stated in your letter have been reviewed by our Medical Director, George Gerber, M.D. Dr. Gerber indicated that the issue of evaluation and management services is currently under review by the HCFA and the AMA. Once the issue has been addressed, Carriers will publish any resulting policy clarification/change in their monthly bulletins which are routinely sent to providers in their service area....

Members having any information pertinent to these issues (such as carrier manuals or correspondence with government officials or carriers) are asked to send us a copy (1601 N. Tucson Blvd. Suite 9, Tucson, AZ 85716).


Calif. Single Payer Could End Private Medicine

Proposition 168, to be voted on by Californians on November 8, would create a Health Commissioner, exempt from any independent oversight, with the power to set fees; ``adjust'' the number of specialists versus primary care physicians; specify the list of permissible drugs; cap physicians' total income; and limit the availability of technology.

According to the Pacific Research Institute, ``There isn't a single component of California's health care system that the Commissioner is not empowered to alter at whim.''

If a physician who accepts capitated payment also accepts money directly from a patient, the penalty may be a heavy fine and exclusion from the system (i.e. loss of livelihood).


Does a $1 Billion Federal Program Cost?

To the $1 billion budgeted price tag, add the tax system burdens: compliance costs (24.43%); forgone production (35.04%); enforcement costs (1.97%), avoidance and evasion (2.96%); budgetary cost of the IRS (0.61%), for a total of $1,650,100,000 (James L. Payne, ``Inside the Federal Hurting Machine,'' The Freeman, March, 1994.)


``The very idea of freedom presupposes some objective moral law which overarches rulers and ruled alike. Subjectivism about [moral] values is eternally incompatible with democracy. We and our rulers are of one kind only so long as we are subject to one law. But if there is no Law of Nature, the ethos of any society is the creation of its rulers, educators and conditioners; and every creator stands above and outside his own creation.''
C.S. Lewis, Christian Reflections, 1943

Legal Briefs

AAPS v. Clinton and the Politics of Meaning

The legality of the secret meetings of the Task Force working groups hinges critically upon whether or not private parties were members. In a sworn affidavit filed March 3, 1993, Ira Magaziner stated: ``Only federal government employees serve as members of the interdepartmental working group.''

In this declaration, which he never amended despite its obvious importance to the Court, Magaziner ``did not tell the Court about the over 350 private persons attending and participating in a regular way,'' wrote AAPS Counsel Thomas R. Spencer, Jr., in a brief filed September 6, 1994.

``Mrs. Clinton knew that they were a regular part of the process....When the President and Mrs. Clinton thanked the over 1000 persons `participating in a regular way' on April 29, 1993, Mr. Magaziner was there...! The next day, however, his lawyers were arguing that the working group consisted of only 340 `virtually anonymous' persons (as members)....

``By August 11, 1993, the Defendants were reporting to the Court that `membership was not a significant or operative concept'....''

In his Third Declaration of May 4, 1994, Magaziner referred to ``members'' and ``participants'' interchangeably.

``Words and meaning have frequently been at war with each other,'' Mr. Spencer wrote:

`` `When I use a word,' Humpty Dumpty said in a rather scornful tone, `it means just what I choose it to mean-neither more nor less.'

`` `The question is,' said Alice, `whether you can make words mean so many different things.'

`` `The question is,' said Humpty Dumpty, `which is to be master-that's all' '' (Lewis Carroll, Through the Looking Glass, 1948).

Judge ``Troubled'' by HCFA Procedures

Psychiatrist George O. Krizek (U.S. v. Krizek (DC DC, N. 93-54, 7/19/94) was found liable for violating the False Claims Act for bills submitted in excess of the equivalent of twelve 45-50 minute sessions in a single service day. He and his wife were enjoined from participating in Medicare and Medicaid until they can show the court that they can abide by the relevant rules.

The government had asked for triple the alleged actual damages of $235,000 plus penalties of $10,000 for each of 8,002 alleged instances of ``upcoding'' or providing a ``medically unnecessary service.''

In his opinion, Judge Stanley Sporkin wrote: ``Dr. Krizek is not public enemy number one....He is at worst a psychiatrist with a small practice who keeps poor records.''

It was ``arbitrary'' and ``perverse'' for the state to subject a doctor earning between $100,000 and $120,000 per year to ``potential liability in excess of $80 million because telephone calls were made in one room rather than another.''

A government witness testified that under coding rules, a 15-minute phone call to a consultant would be reimbursable if made in the patient's presence, but not if made from another room. Lack of medical necessity was judged by a review of the doctor's notes without interviewing any patients, nurses, or other physicians who cared for the patients.

The Judge was ``troubled'' by several HCFA policies, including that of paying for only one of the multitudes of services provided (and coded).

``If this were done by a private sector entity, it would be considered deceitful. Because the government engages in such a deceitful practice does not make it right'' (BNA's Medicare Report 8/12/94).

State and Federal Constitutions at Odds Over Abortion Policy; Medicaid Funding Threatened

The most recent version of the Hyde Amendment to the 1994 Medicaid Act allows states to cover abortions involving rape and incest.

Amendment 68 to the Arkansas State Constitution limits public funding of abortions to cases in which the mother's life is in danger.

On July 25, Judge William R. Wilson, Jr., of the US District Court for the Eastern District of Arkansas, struck down Amendment 68, saying it conflicted with federal law and was unconstitutional under the Supremacy Clause of the US Constitution (2 HCPR 1401, 8/1/94).

The state takes the position that the Hyde Amendment is mandatory rather than optional and might ask the appeals court for a stay. In the meantime, Carol J. Hodges of Little Rock has filed for an injunction that would order the state to terminate participation in the Medicaid program. She argues that Medicaid policy amounts to an ``illegal exaction'' of public money under Article 16, Section 13, of the state constitution (Hodges v. Tucker, Ark ChancCt, No. E-94-4460).

A Montana regulation restricting public funding for abortions was also struck down by a federal judge (Planned Parenthood v. Blouke, DC Mont, No. CV-94-28, 7/19/94). (BNA's Health Care Policy Week 8/8/94)

Other states such as Missouri may also find that to accept Medicaid funding under the Hyde Amendment they will have to violate their own laws or constitutions.

Doctor Sued for Criticizing Contract Management Industry

George Schwartz, MD, editor of the most widely sold textbook of emergency medicine, has been sued by Coastal Healthcare Group because of an editorial he wrote in Emergency Medicine News. He stated that ``recent developments ...are threatening the integrity of our profession....''

The plaintiffs allege that Dr. Schwartz's intention is to ``subject Coastal to ridicule, contempt, and disgrace and defame Coastal.'' Dr. Schwartz wrote that ``the founder and majority shareholder of Coastal has become one of the wealthiest millionaires in the U.S. in just a few years...by standing between health care payers and ... providers ...and raking off massive amounts of money as middleman.''

Plaintiffs did not take on Mike Wallace of 60 Minutes for showing Coastal's hiring practices. One physician told the television audience that they ``just want a warm body, they don't care who it is.''

Emergency Medicine News has placed a moratorium on discussion of the case, fearing they may be the next defendant.

Stewart v. Sullivan Opinion Published

Judge Politan's opinion in the right-to-contract case filed by Medicare beneficiaries and Dr. Lois Copeland is published at 816:F.Supp 281 (DNJ 1992).

Members' Page

Let the Elderly Lead the Way. I pay $30 per month for Medicare Part B, and the taxpayer pays $100. That is over $1000 per year....The sheer truth is that special interests obtain subsidies for the aged, farmers, manufacturers, and so on....

Let us turn a new page in American history: repeal Medicare. It will then be necessary for the elderly to buy what insurance they can afford. Because it was third-party payers that caused the inflation in medical costs in the first place, we will immediately have cost containment. Everybody will get the message, including we elderly, that we must be responsible in our demands, and the providers in their demands.

None of us elderly want to pass on to our grandchildren, whom we dearly love, a $4 trillion debt.
Robert J. Madden, Ph.D., M.D., Waterford, MI


``Management'': Liberal Democrats have been misleading people to believe that government-promoted managed-care programs will allow them free choice of doctor....Nothing could be further from the truth. According to an article in the Spokesman- Review (Spokane), a rule adopted by the Washington State Health Services Commission will allow insurance companies to turn away ``providers'' even if they meet insurers' guidelines. And under Washington's ``health-care reform,'' fee-for-service billing will be outlawed, and all patients will be served under managed-care plans.

Blue Cross in the Washington, DC, area has taken cost containment to an even more restrictive level by not allowing any neurologists to participate in their managed-care program. By managing to exclude all specialists, Blue Cross claims to save money-at the expense of the patients.
Lawrence R. Huntoon, M.D., Jamestown, NY


Revival. A letter to Mr. Robert E. Allen, CEO, AT&T:

AT&T Telephone Pioneers could show a way to avoid impending entitlement disaster, by modeling Medisave in Medicare.

Individually shopped health services (funded with present health benefits transferred to medical savings accounts + umbrella) could save 64% of previous costs-and for better care. Golden Rule Insurance Company employees experienced this. Milton Friedman predicted this.

Your directive for a health benefit option like Golden Rule's would revive initiative and responsibility in AT&T retirees and employees. This directive now would promote U.S. Congress actions liberating individuals from government oppression and from insurer micromanagement of their lives....
Howard F. Long, M.D., M.P.H., Pleasanton, CA

Milton Friedman, Hoover Institution

[Mr. Friedman in a separate letter made note of the enormous prior-conditions problem of those who are 82 years old and have been in Medicare for many years.]


HMOs Are Like Fruit Baskets. Employers select some of these baskets and offer them to their workers who must choose which basket they want. Years later, if and when workers become patients, these HMOs restrict patient's choices....Even if over the course of time some of the fruit has rotted, patients cannot change baskets....Physicians may have to consult with inferior physicians and use inferior hospitals in order to practice medicine....

Employer mandates would continue our current move toward HMOs, yet the media are strangely silent on the awesome power of taxes that spawn this move....To save tax dollars, workers choose tax-deductible premiums over out-of-pocket medical care paid with after-tax dollars. This is unfair. As long as employer-provided premiums are tax-deductible, the IRS should allow patients to deduct their out-of-pocket medical expenses and patient-paid insurance premiums....
Bert A. Loftman, M.D., Atlanta, GA


Ethical Foundations [excerpted from a letter rejected by the AMA]. I am very disturbed by the 4/20/94 JAMA ``Special Communication's'' distortion of the ``moral traditions we share as a nation'' being used to justify the greatest departure from this tradition ever proposed....Our government's purpose was not to provide us with rights and entitlements by taking from each according to ability to pay, and distributing to each according to need....The government was rather to ensure minimum interference with the individual's right to better himself. Relinquishing to the government the individual's responsibility of ``wise allocation...[of] resources between health care and other important goods such as education and housing'' is not a traditional American value.
Harold J. Kornylak, D.O., Virginia Beach, VA


AAPS Calendar

Oct. 12. Board of Directors meeting

Oct. 13-15. Ritz-Carlton Hotel, Atlanta: 51st annual meeting of AAPS. Registration form enclosed: Last Chance!

Oct. 29. Freedom in Medicine meeting, Augustana College,

Sioux Falls, SD. Topics include: Criminalization of medicine (Brad Smith, Capital Univ.); medical savings (Lee Tooman, Golden Rule Insurance Co., and Merrill Matthews, NCPA); constitutional foundations (Jonathan Van Patten, Univ. SD). Also speaking: Ed Annis, Bob Moffit, and John Del Giorno. Call (419)668-8282 to register or to arrange a F.I.M. seminar in your area.

Legislative Alert

Where's Pickett's Charge?

Recall that we had previously likened the national health care debate to the domestic policy equivalent of the Battle of Gettysburg. Clinton's several public relations offensives had failed and the only thing was a last, desperate gamble in the House or Senate, some political equivalent of Pickett's charge. The difference: Poor General Pickett was at least able to form ranks and march off to immortal Glory. The House Democrats can't even form up their ranks for the big showdown.

``The vote counts show so many Democrats opposing the Gephardt bill that the White House officials recently urged their allies outside government not to compile or distribute such lists for fear they could be used to undercut people lobbying for an employer mandate,'' writes Robert Pear (NY Times, 8/25/94).

The Meandering Mainstream Mess

For those who fear the establishment of government- controlled medicine, this is a period of maximum danger.

After a big, tough fight on the Crime Bill, Senator Majority Leader George Mitchell has sent his exhausted colleagues home. His huge 1,443 page health care reform bill, the latest Senate version of the Clinton Plan, cannot pass the Senate. Mitchell knows it. He also knows that he has nothing to lose. This makes him politically a formidable opponent for Senate Republicans and conservative Democrats.

Mitchell's bill is a case study in the Non-Clinton Health Care Reform category. Mitchell, his Senate allies, and even the White House, have advertised the bill as less bureaucratic, less costly, and less intrusive. Some supporters have even called it a ``market-oriented'' plan. (Recall in 1993 that HHS Secretary Donna Shalala called the Clinton Plan a ``conservative plan''- Chutzpa has lost its meaning with this crowd.)

None of this seems to have worked. The Mitchell bill, in some respects, is even worse than the Clinton original. Senator Arlen Specter, the author of the nationally famous chart on the Clinton Plan, has gone back to the kitchen table to plot out the new federal departments and agencies created by the Mitchell bill. The result is more of the same.

This fight is far from over. Too many Congressional opponents of the Clinton Plan may be celebrating prematurely. Look for desperate action on the part of the White House allies in the Senate to get any Senate bill to pass, with the intention of taking it into conference with the far more liberal House leadership, where work can begin once again in the congressional back rooms on resurrecting the key regulatory components of the increasingly unpopular Clinton Plan.

Senator John Chafee (R-RI), has been drafting and redrafting legislation for the Mainstream Coalition, a Senate group of self- described ``moderates'' who want a ``middle of the road'' solution to the legislative impasse. The bill contains the infrastructure for a government-controlled health care system: a national commission with a lot of power to collect data (no need to collect data unless you can act on it-if not now, later); a comprehensive government standardized benefits package; new federal insurance regulations; and new subsidies for low-income working Americans.

On August 18th, the Senate Mainstream Coalition was on the verge of breaking up; on August 19th, they were wrestling over specifics, trying to find consensus on the damnable details. Now, they are meeting with Senator Mitchell's staff.

In the meantime, Robert Reischauer of the Congressional Budget Office (CBO), an equal opportunity dispenser of Bad News, met with the group to discuss costs. After the CBO cold shower, the Mainstream Coalition refocused its efforts to make sure that the evolving bill would meet the goals of cost control and deficit reduction. So, it ended up with a new prescription for more taxes and new Medicare cuts. Just the right formula for the Washington Office of AARP perhaps?

Legislative Implosion?

Their behavior on the ``health care'' issue threatens to shred what little credibility remains for the Clinton White House and Members of Congress.

1. Nothing's Exactly What You Think It is. Whatever one thinks about the Clinton Plan, it is not a mystery. It is huge. It is complex. It is tedious reading. Trying to interpret some sections would try the patience of a Talmudic scholar. But it is all there. It has been subjected to independent econometric analyses, including the staff analyses of the CBO, the large econometric firms such as Lewin/VHI and the CONSAD corporation, Peat Marwick and the American Society of Actuaries, as well as legislative analyses from just about every major public policy institute from the Brookings Institution to the Heritage Foundation. It has been the subject of charts and radio and TV commercials, for and against.

The Clinton Plan drives Members of Congress into fits of fear and loathing. Compulsory alliances, price controls, premium caps, big batches of bureaucracy, boards, panels commissions, rules, regulations, fines, the works. Nobody on Capitol Hill wants to bring the unpopular Clinton Plan to the floor for a straight up-or-down vote. The largely unreported humiliation of the White House in the House Ways and Means Committee early in the summer, where not one Member voted for the President's Plan when the Republicans put it up for disposition, is an indication of the Congressional leadership's deeper problem. In fact, the Clinton Plan is so unpopular with the public that the initial appeal of other proposals is simply that they are Not the Clinton Plan. (The Cooper-Grandy Managed Competition Proposals and the Rowland-Bilirakis proposals come to mind.)

So what to do? Repackage the Clinton Plan, rearrange its parts, give it a new set of tires and a paint job, polish the chrome and try to sell it to an increasingly skeptical public as something really different.

Hillary and Company continue to complain that they are victims of greed, disinformation, fear, and paranoia. Clinton spokesmen insist, still, there are no price controls in their bill (only ``premium caps''); it's not really bureaucratic; it will even mean a ``net reduction'' in regulation; universal coverage now means 95 percent, not really 100 percent coverage, etc. etc. Provisions are explained as good for us, but, upon closer examination, the details are not exactly what we thought.

For example, on August 3, during his national press conference, the President said that he was encouraged by the Mitchell bill and other developments, including the proposal to open up the Federal Employee Health Benefits Plan (FEHBP) to the general public. With a straight face, he stated that he had ``always'' favored opening up the FEHBP to the general public. Not exactly. His own bill abolishes the FEHBP.

In this peculiar debate, broad concepts, positive sound bites, nifty slogans, or attractive labels mean nothing; the details mean everything. That is why Congressman Pete Stark (D- CA) is beating the drums for fast Congressional action: any delay would be disastrous because opposition will build. So make sure to vote something before the folks back home get wind of the details. Hillary Clinton, complaining of legislative scrutiny in the 1990's, notes that Franklin D. Roosevelt didn't have to defend ``every jot and tittle'' of the his agenda. Lucky guy, that FDR. Today, a liberal bill becomes the legislative equivalent of a fish: longer exposure to the sunlight doesn't make it smell any better.

2. Legislative Confusion. After George Mitchell introduced his gargantuan 1,410 page bill on August 3rd, he felt compelled to rewrite it. On August 9th, yet a new version of the Mitchell bill appeared. In Title I alone, Mitchell had modified 33 sections; in Title II, six sections and one subtitle; in title III, 28 sections; in Title IV, 13 sections; Title V, 15 sections; Title Vi, 6 sections; Title VII, 5 sections; Title VIII, IX, and X, subtitles; and in Title XI, the whole thing was modified. But that was not enough: on August 12th, Mitchell submitted yet another version of his bill, weighing in at 1,443 pages. Like the river of Heraclitus, the Greek philosopher, the huge Mitchell bill is not in being, but rather in state of flux, in a constant state of becoming.

Normally, in a committee mark-up, the Committee starts from a working draft of a bill, and the provisions are discussed and amended, line by line, and the changes are made to the statutory language, the legislative concepts are clarified, and a legislative history is fashioned in the process. Working from carefully crafted legislative language, a product of the Legislative Counsel's office of the House or Senate, the Members of the Committee then write a report for their colleagues, outlining in English and in some detail exactly what the bill does. So, when there is full debate on the Senate floor, everybody is crystal clear about the language and what the implications are for the country.

But not in this issue that directly affects the personal lives of over 257 million Americans and a huge and highly complex sector of the American economy.

The Senate Finance Committee is working, not from legislative language, but from rough legislative concepts, like insurance market reform, or purchasing alliances, or whatever. After the Committee votes on vague ideas, the staff is supposed to draft the statutory language. The end result of the backwards process is that the staff's legislation does not represent what the Members had in mind. Also, there are no independent budget estimates and no independent analysis. Indeed, after the Senate Finance Committee draft was finalized by staff, the Congressional Budget Office (CBO) pronounced large parts of it unworkable. Yet, much of the Finance Committee bill has become the mainstay of the Mitchell Bill.

Thus the Congress is erecting, haphazardly, what one Capitol Hill wag called a grotesque monument to the Law of Unintended Consequences.

3. The Politics of Government Control. It's clear that the health care debate now has less to do with the problems of medical care, which are fixable for most Americans, and everything to do with the restoration of the Clinton Presidency and the preservation of the huge liberal majorities in Congress. In short: it's about survival in November.

The Senate liberals want to paint the Senate Republicans into a corner. It is a simple strategy. Either get the Republicans to accept the Clinton Plan, or some variant of it, which will put into place all of the objectionable regulatory elements of the Clinton Plan, either immediately or on a delayed basis. Or force them to filibuster and pay the political price for delaying reform. For Clinton Democrats, its a win-win situation.

The latest gambit by Senator Mitchell is to drop his own bill and try to forge an agreement with Chafee and the ``Mainstream.'' Insiders on Capitol Hill think that the retiring Mitchell will do just about anything to get to Conference.

If Republicans filibuster, they can be accused of ``Gridlock,'' the mortal sin of the Majoritarians. Conservatives on Capitol Hill are looking at another tactic. Instead of a debate on the Clinton Plan, force debate on any or all of the components of the Clinton Plan. Give the Democrats their 51-vote victory if that is what they want, but force individual votes on all of the key components of the Clinton Plan: the creation of the national health board, the standardized benefits package, the compulsory funding of abortion, the erection of mandatory health alliances, the imposition of premium caps and price controls, the tax increases required to cover shortfalls in deficit or the subsidies, every fee or tax increase, and then get out of the way. Allow the Congressional liberals to take up-or-down credit for all of these features and go explain themselves to the folks back home.

Traffic Jam on the Information Superhighway

When the history of the national health care debate is finally written, observers will find an ironic twist to the proceedings. Vice President Gore has been a champion of the Information Superhighway, the vast network of computer chips, faxes, and fax modems. With the information industry's ability to process information doubling every 18 months, the political process has barely been able to compete with the diffusion of detailed data. In short, Hillary's health care bill was literally run over by the facts and analyses racing across country on the emerging Information Superhighway.

In the old days, lobbyists and lawyers would grab their legal pads and one of a limited number of copies of bills. They could push modifications with friendly staffers over a few drinks after work in one of Washington's numerous watering holes. But no more; a bill, including a very big four-and-a-half pound bill, can be put on a disk. And then there are the reports, econometric analyses, and the studies; they too can be accessed on the information superhighway. And the stuff is picked up by Talk Radio, the interactive and combative media, where the Washington Establishment is forced to explain itself. And as for Congressmen, they are being forced publicly to answer questions at their Town Hall meetings back home that are more pointed and specific than the kinds of broad inquiries they used to get back in the good ole days. The pricey lawyers and the lobbyists and the old entrenched crowd inside the Beltway now find themselves outflanked and immediately on the defensive. The painful process of the national health care debate could be signalling the beginning of something really Big. Maybe, just maybe the Washington Establishment of the 1990s is falling victim to the awesome power of the computer chip. Information abounds. And the truth, as Scripture promises, does indeed make us free.