In her inaugural address, incoming AMA president Ardis D. Hoven, M.D., celebrated change: “Just eight months from now some 30 million Americans will gain access to insurance.” While acknowledging that change can be “scary,” it “can also be good.” At this crossroads, she said, we could take the “path of inaction”—of “glorifying the past…and thwarting any attempt to move forward.” Or we could take the “path of action”—of “collaborating…and leading the drive toward productive change.”
Featured AMA actions included: 1) calling for repeal of the sustainable growth rate (SGR) formula and the Independent Payment Advisory Board (IPAB); 2) recognizing obesity as a disease state (likely increasing insurance payments for drugs, surgery, and counseling); and 3) commissioning an independent study to evaluate the impact that Maintenance of Certification and Maintenance of Licensure have on physicians’ practices, workforce, and patients. A separate organization will be set up to decide how many examinations it takes to determine a doctor’s competence, and whether specialty boards have gone too far.
AMA will push for full implementation of Medicaid expansion, despite its very low physician fees. The Florida delegation dropped a position to have the AMA withdraw its support for the Patient Protection and Affordable Care Act (PPACA or ObamaCare), according to a summary by Arthur Palamara, M.D.
AMA’s “curious support” for ObamaCare is “pathetic,” states Marcy Zwelling, M.D. “It’s not what we voted for.” It means “ignoring the directives we have given,” notes David McKalip, M.D. “Like the plagues that befell Moses’ Egypt, the plagues of PPACA will descend on us all beginning January 1,” predicts another contributor to the AMA Take Back the Profession Advisory Group discussion list.
“The AMA made a serious mistake supporting this bill,” writes former AMA president Donald J. Palmisano, M.D., J.D. (
Loss of Autonomy
As Dr. Hoven has noticed, physicians feel disempowered and fear losing their autonomy. She states that organized medicine has the power to make a difference. But from an account of a visit to CMS by Dallas County Medical Society president Cindy Sherry, M.D., to present an innovative proposal, Dr. Stanley Feld concludes that “the government has its mind made up and is not interested.” Sequestered behind metal detectors, dogs, and armed guards who inspect under the hoods of visitors’ cars, CMS staffers acknowledge that “glorified terms of transformation such as ‘collaboration,’ ‘innovation,’ and ‘transparency’…are long-term goals and they do not expect their immediate fulfillment.”
State governments receive no deference for their “productive change” efforts either. Indiana worked from 2011 until March 2013 to get its waiver for the successful Healthy Indiana Plan for Medicaid extended. The first excuse was failure of HHS to complete PPACA regulations. Feld writes that the likely reason for the artificial delays is Obama’s hostility to medical savings accounts.
The Path of Resistance
ObamaCare takes a fundamentally flawed method of medical financing—prepayment through third parties even for routine expenses—and makes it still more inefficient. It assumes that our credentialed ruling class (including those favored by organized medicine) will make better decisions than people would make for themselves. It assumes the legitimacy of the anointed elite’s egalitarian agenda to level and to crush traditional sources of moral and social authority, in order to produce equality of result—for all except themselves (see Christopher Manion, Authority and Its Discontents.
Because the law cannot be meaningfully improved while keeping its basic design, “it would be mad…to acquiesce,” writes Ramesh Ponnuru. He thinks the path of inaction is unwise because PPACA is unlikely to self-destruct quickly—or harmlessly. The first IRS penalties will not be imposed until 2015, and the devastation of insurance markets likely will not occur until well after the next two national elections (NRO 6/12/13).
AAPS director G. Keith Smith, M.D., quotes a verse from Virgil’s Aeneid that was the life motto of Ludwig von Mises: “Tu no cede malis, sed contra audentior tio” (do not give in to evil but proceed ever more boldly against it). Smith remembers a debate in which Republican presidential candidate Bob Dole was asked whether there was any issue over which he was willing to lose an election. Dole did not know what to say. “He, like almost anyone in politics or with power, chose victory and the maintenance of power and influence over principle.”
AAPS once asked former AMA president Daniel “Stormy” Johnson whether there was any law to which a physician in good conscience could simply not acquiesce. He had no answer.
To overcome the ruling class, we must cut down its intellectual and moral pretenses. Groups with different interests within what Angelo Codevilla calls the “country class” must stand together, resisting incremental compromise, recognizing that the principle of constitutional right is indivisible and capitalist economics presupposes morality (http://tinyurl.com/bzt8mq9).
What does one call those who collaborate with the enemy?
Dr. Eck Running for U.S. Senate
AAPS immediate past president Alieta Eck, M.D., is running for the U.S. Senate seat vacated by the death of New Jersey Senator Frank Lautenberg. She will work to repeal ObamaCare and to find voluntary free-market solutions, always following the U.S. Constitution. See http://eckforsenate.com.
Obama Spin
The multimillion-dollar “echo chamber” advertising campaign to promote ObamaCare will soon be underway. It will emphasize that some people will have lower premiums, and rate shock won’t be as bad as some have predicted. However:
- In California, rosy figures are obtained by “comparing apples to ostriches” (WSJ 6/4/13). The plans offered on the Covered California Exchange have much narrower networks and lower fees to providers. Premiums for a “bronze” Obama plan will be 62% higher than for comparable plans today. Most 40-year-olds in a 3-person household will face higher costs even with subsidies, states Avik Roy (Forbes 6/17/13).
- In Washington state, where premiums are already high because of Obama-like regulations, both old and young will face premium increases of 34%-80%, except for the 7% at highest risk (Roy, Forbes 6/23/13).
- The Cover Oregon Exchange, much hyped in the press, has the same problems as California’s. Subsidies top off fast, and both Exchanges are likely headed for death spirals in rates if young invincibles don’t buy.
Where the ObamaCare Money Goes
- Voter registration is part of the insurance exchange enrollment “outreach.” PPACA creates a permanent stream of money to unions and community activists for door-to-door canvassing and phone banking (McCaughey, IBD 6/18/13).
- The Bay State Boondoggle, engineered by then-senator John Kerry, would funnel $3.5 billion to Mass. at the expense of Medicare beneficiaries everywhere—unless Congress repeals it (WSJ 6/20/13).
- Federal taxpayers will be paying through ObamaCare for retiree health benefits for autoworkers and employees of the bankrupt city of Stockton, Calif. Other bankrupt governmental entities are likely to try to shift their unfunded liabilities in this way also (IBD 6/18/13).
- As employers skirt PPACA costs, low-wage workers for local governments, especially school districts, will get subsidies instead of job benefits and full-time employment (John Merline, IBD 6/19/13).
Howard F. Long, M.D., M.P.H.: R.I.P.
Dr. Long, a family physician and epidemiologist, was born in 1927 and died Jun 20, 2013.
He was serving on the AAPS Board of Directors and attending patients, free of third-party and Medicare entanglements, until weeks before his death.
He was a valiant warrior for patient safety, confidentiality, and freedom.
Resolutions, Nominations
To be considered for the annual meeting, resolutions must be submitted in writing by July 28. Contact [email protected].
The Nominating Committee submits the following slate:
President-elect: Richard Amerling, M.D., New York, NY
Secretary: Charles McDowell, Jr., M.D., Alpharetta, GA
Treasurer: W. Daniel Jordan, M.D., Atlanta, GA
Directors: Kathleen Mitchell Brown, M.D., Coos Bay, OR; Alieta Eck, M.D., Somerset, NJ; Edward “Ned” Elmer, M.D., Pleasanton, TX; Lawrence Huntoon, M.D., Ph.D., Lake View, NY; Tamzin Rosenwasser, M.D., Venice, FL; Marilyn Singleton, M.D., Oakland, CA; Melinda Woofter, M.D., Granville, OH.
Constructing Reality
If Ed Snowden is telling the truth, then our government has the ability to see everything about us, at the root level. While there is much concern about loss of privacy, in reality “we have less to fear from what information may be taken out of the digital stream and misused, than what information might be placed into the stream imperceptibly, across all platforms, in real-time,” writes Joe Herring (http://tinyurl.com/moday4m).
“Media news cycles could be managed by leaving trails that create desired narratives. Research might be misdirected toward dead-ends or desired results. Reputations could be enhanced or diminished, created or destroyed, with no one the wiser.”
Market Principles and Morality
“For the Victorians, spending within your means and avoiding debt were not just financial principles. They were moral principles. [John Maynard] Keynes, who was consciously rebelling against these same Victorians, described their ‘copybook morality’ as ‘medieval [and] barbarous.’ He told his own inner circle that ‘I remain, and always will remain, an immoralist…..’
“[H]e insinuated the very odd, but now very prevalent idea, that old-fashioned morality is out of date, even a bit retarded, and odder still, in conflict with science. This is all such nonsense, but it permeates our culture. And the very people who preach honesty and sustainability outside of economics, for example in our treatment of the environment, entirely fail to understand that Keynes is preaching dishonesty and unsustainability in economics.
“Crony capitalism represents both a corruption of capitalism and a corruption of morals…. Crony capitalism and Keynesianism are just two sides of the same debased coin.”
Hunter Lewis, The Free Market, January 2013
AAPS Calendar
Jul 20. OtherCare: Liberation & Innovation, Ann Arbor, MI.
Aug 10. Thrive Not Just Survive XVIII, Minneapolis, MN.
Sept 25-28, 2013. 70th annual meeting, Denver, CO.
Dr. Natale’s Conviction Affirmed
In a unanimous decision, the U.S. Court of Appeals for the Seventh Circuit affirmed the conviction of cardiovascular and thoracic surgeon John Natale, M.D., for making false statements in his operative reports concerning Medicare patients.
Although the District Court made “plain errors” in its instructions to the jury, the errors were found to be “harmless.”
The Court devoted considerable attention to the meaning of terms in the Health Insurance Portability and Accountability Act (HIPAA) under which Natale was convicted. In the Senate version, someone commits a crime when he “in any matter involving a health care program, knowingly and willfully…makes any materially false, fictitious, or fraudulent statement or representation.”
The Court recognizes the danger of criminalizing a broad swath of seemingly innocent conduct, but still found the lack of a “materiality” instruction to be “harmless.”
Natale admitted to making mistakes, which he characterized as resulting from carelessness and an aversion to paperwork. He said he sometimes dictated up to 100 reports weeks after the procedures. The government told the jury that a surgeon who truly cared about his patients would not dictate such important reports haphazardly. Therefore, he must have knowingly and willfully lied.
“[T]he health care fraud statute requires proof of specific intent to defraud while the false statement statute requires only knowing and willful false statements,” the Court stated.
Even though the jury acquitted Natale of fraud, the Court decided that “[h]e was convicted because the jury did not believe Natale when he told them he made innocent mistakes. In any event, to the extent § 1035 produces ‘unduly harsh result[s] on those who intentionally make false statements to [health care benefits providers], it is for Congress and not this [c]ourt to amend the criminal statute.’”
On May 30, 1996, AAPS executive director Jane Orient, M.D., wrote in the Wall Street Journal: “Sending doctors or patients to federal prison in order to protect health plans from paying too much was one of the most loathsome features of the defeated Clinton Health Security Act. Now it’s back, passed by both houses of Congress, voted for by all 100 senators.”
No one tried to defend the criminalization of medicine in 1994, but anyone calling attention to the provision was called a “liar.” How then did Republicans later pass it? Apparently, they didn’t read it. “Sen. John Chafee’s (R., R.I.) staff actually told one constituent that the senator didn’t even care what was in the bill, as long as it passed!”
HIPAA greatly augmented law enforcement machinery and budgets. “If the enforcers need evidence, they can seize anybody’s medical records anytime (this will be even easier once the records are on a computer network).”
It took some time to see HIPAA’s effect. The surgeries related to the case were done in 2002–2004, and Natale reported to prison in 2012 (see AAPS News, December 2012 and March 2013). The government now has a great precedent.
♦ ♦ ♦
“Written constitutions have one great weakness…. [T]hey contain the potential to have judges take decisions which should properly be made by democratically elected politicians.”
“For [left-wing zealots], the ends always seem to justify the means. That is precisely how their predecessors came to create the gulag.” Margaret Thatcher
Self Incrimination
In a 5–4 decision in Salinas v. Texas, the U.S. Supreme Court held that prosecutors can use a defendant’s silence against him in court if it comes before he is arrested and read his Miranda rights.
Prosecutors argued that Genovevo Salinas, who was sentenced to 20 years in prison for a 1992 murder, was answering some police questions and had not invoked his right to silence.
Justice Samuel Alito said that “it has long been settled that the [Fifth Amendment] privilege is ‘generally not self-executing’ and that a witness who desires its protection ‘must claim it’” (Huffington Post 6/17/13).
In his dissent, Justice Stephen Breyer noted the predicament of being forced to “choose between incrimination through speech and incrimination through silence” (jonathanturley.org 6/17/13). It is feared that the ruling will increase the dangers of police eliciting false confessions through “informal, undocumented, and unregulated” pre-custodial questioning (Slate 6/19/13).
When Americans sign their income tax form, they are bearing witness against themselves. The courts, however, will find that this is voluntary and thus not protected by the Fifth Amendment. At a minimum, the Internal Revenue Service’s collection procedures violate one of the basic tenets of the rule of law, that it should apply equally to individuals and government.
The information in your medical record, and on claims submitted to third parties, is also provided voluntarily—in exchange for treatment or payment. There is thus no constitutional protection against its use as what Michael Riesberg, M.D., describes as “a tool of government to determine your crime.”
Walter Williams states that Americans collectively deserve the IRS because such a ruthless agency is needed to squeeze out half of what we produce. Do we not demand our “fair share” of the fruits of such redistribution?
Patent Rights Limited in Myriad Decision
In the case of Ass’n for Molecular Pathology v. Myriad Genetics, Inc., Sup. Ct. No. 12-398, involving Myriad’s patents on BRCA genes, the U.S. Supreme Court ruled unanimously that natural DNA is not patentable. It did, however, as AAPS urged in an amicus brief, explicitly narrow the scope of the ruling, thus protecting incentives for private investment in innovation. Synthetically created DNA known as complementary DNA (cDNA), which contains the same protein-coding information found in a segment of natural DNA but omits portions within the DNA segment that do not code for proteins, remains fully patentable.
Medical Identity Theft
Unauthorized use of his National Provider Identifier (NPI), Drug Enforcement Administration (DEA) number, or other identifier exposes a doctor to billing fraud and criminal investigation. This can have severe financial and reputational consequences. CMS may suspend payments during the investigation. If you shared or lent your number, even in good faith, you could be criminally liable for fraud or violations of the Controlled Substances Act, or of HIPAA if privacy breaches occurred (MPCA 6/10/13). NPIs are publicly available. The prospect of identity theft is one reason not to obtain an NPI if not required to by law.
Correspondence
ABMS Disclaims Responsibility. The ABMS offers participation in maintenance of certification as “proof” that physicians are providing “quality care”—implying that those who do not participate in MOC do not provide good care. Yet, the “proof” that it offers is “consensus recommendations.” These are not science and do not constitute objective evidence. Consensus recommendations are opinions—which are based on belief. When hospitals require MOC for recredentialing, they are basically imposing a belief system on physicians who may hold other opinions about what constitutes best care for their individual patients.
In its prominent disclaimers, (http://www.abms.org/Policies/terms_of_use.aspx), ABMS makes no warranties about “value,” “accuracy,” or “fitness for a particular purpose” [recredentialing, for example] of information on its website, and it wants to be held “harmless” if an MOC physician provides substandard “non-quality” care. If the ABMS is unwilling to state that MOC means physician competence, why should it be used in credentialing?
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
AMA and MOC. It is sad that all the AMA can do is study the the complete lack of evidence that MOC/MOL does anything other than transfer wealth and interfere with patient care. It appears that AMA is complicit in the whole agenda to force us into the MOC/MOL program.
David Siegler, M.D., Tulsa, OK
MOC Mercenaries. There are too many academics living off MOC that are happy to enhance their CVs by attending the AMA meeting as delegates on university money. Practicing physicians who need to work to get paid have no significant opportunity to fight for the working profession.
Paul Kempen, M.D., Broadview Heights, OH
Scalping Appointments. Nobel laureate economist Paul Krugman declares that since healthcare reform has worked in Massachusetts since 2006, ObamaCare, which is essentially the same program, will work in the rest of the nation. It is true that nearly everyone in Massachusetts is insured. However, physicians are even less willing to see the newly insured than Medicaid patients, despite 10% higher payment. In Worchester, there is a 3-month wait to see a primary physician. Patients make appointments, then sell their time slot, like a football ticket, to a patient who needs to be seen sooner. Emergency room traffic is higher than before reform, and traffic to community health centers is up one-third.
Stanley Feld, M.D., Dallas, TX – http://stanleyfeldmdmace.typepad.com
“New” Payment Model. The political-corporate “payer” industry and managed-care acolytes make three specious evidence-free claims: First, that medical inflation is due to “poor quality” (not “evidence-based”) and profligate care by culprit clinicians driven to ignoble avarice by the evil fee-for-service system. Second, that costs would be contained by transfer of the mega-payer gatekeeping role to the culprits through fixed capitation payments (“payment reform”) for servicing payer populations. Third, that physician gatekeepers could gain redemption when their avarice is enlisted at the bedside in the more noble cause of conserving society’s “scarce resources”—and, incidentally, the payers’ treasure. This creates a patently corrupt financial conflict of interest between gatekeeping doctor and patient.
Robert W. Geist, M.D., St. Paul, MN
Backing up Medicare. It’s not enough that your tax dollars fund the Medicare Ponzi scheme. You also get to pay the divisional director of the state’s Medicare Assistance Program to explain to Medicare beneficiaries the ins and outs of buying Medigap policies that pay the bills the bankrupt scheme doesn’t cover! What other insurance do you have that needs a back-up policy?
G. Keith Smith, M.D., Oklahoma City, OK – http://SurgeryCenterOK.com
Billing Error. Almost every business tries to make billing as simple as possible. But those who have a monopoly on medical procedure codes [the AMA] have complicated billing to the point that it requires a lawyer, an accountant, a coding expert, expensive seminars, and sophisticated computing—and it is still unclear. For a simple billing error, a “strike force” can assess huge penalties without due process. Billing errors can lead to licensure problems and even prison—for doctors. Yet insurance companies can have an error rate of 20% to 40% in claims processing! [excerpted from letter to AMA past president Jeremy Lazarus]John M. Moloney, M.D., Peoria, IL
Access. My fee-for-service psychiatry practice has no waiting list. At the big community teaching hospital and community mental health center, waiting lists for psychiatrists are 6 months long. Fees aside, I could not take the responsibility of seeing a Medicaid patient because there are too many barriers to ordering the care I think is needed. If the patient needs to go to the hospital, I must spend an hour to do the preauthorization so the hospital can be paid! There is a formulary for Medicaid patients, and legislators admit to creating a time hassle to keep doctors from prescribing the more expensive drugs. I can’t and won’t try to take care of patients under such circumstances.
Robert Emmons, M.D., Burlington, VT
