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