AAPS NEWS

Volume 66, no. 8, August 2010

LAWLESS

About the same time that Czar Donald Berwick was publishing his book New Rules, in 1996, the U.S. Congress, which had a Republican majority, was passing new rules that criminalize the practice of medicine. The AMA had no problem with these provisions in the Health Insurance Portability and Accountability Act (HIPAA). In fact, in 1994, the AMA General Counsel had testified that �the AMA does officially support junkyard dogs, but as long as they are FBI agents� (Crime,� AAPS News, �June 1996).

These rules are expanded in the Patient Protection and Affordable Care Act (PPACA or ACA). Pending litigation focuses on ways in which the insurance mandates violate the Supreme Law of the Land, the U.S. Constitution. Violations of due process rights, of various statutes, and of common human decency are also becoming entrenched in the criminal justice system, the ultimate enforcer of ACA and other laws.

Yes they can. And they do, immunizing criminal informants who often continue to prey on their communities.

The �snitch deal� is a form of plea bargain. Originally a feature of the war on drugs, it has spread to all areas of law enforcement, and now touches millions of lives, writes Loyola Univ. law professor Alexandra Natapoff (Prison Legal News, June 2010). Use of informants is mostly secret and undocumented.

The Supreme Court has allowed the government nearly unfettered authority to circumvent the Fourth, Fifth, and Sixth Amendments through the use of informants, until a suspect is actually charged. Informants themselves have no right to counsel and may be exploited by the police.

Under the Giglio rule, the government must provide the defense with impeachment information about informant witnesses, such as promised benefits, prior inconsistent statements, prior criminal history, or history of perjury or recantations. This applies only if the case goes to trial, so most defendants, the 90% to 95% who plead guilty, never see this information�nor does the public.

Snitches are notoriously unreliable, but juries often believe them. Although Dr. Bernard Rottschaefer convincingly proved perjury in the snitches� testimony against him, appeals courts refused to grant him a new trial (J Am Phys Surg, summer 2010).

In a Medicare fraud case, an employee who was expected to be a defense witness testified for the government. Afterward, she reportedly said she was sorry, but the prosecutor had told her she �would never see her daughter again� if she did not �cooperate.�

Societal Effects
�[R]elying on informers threatens and eventually cripples much more than criminal enterprise,� writes Jerome Miller in his 1996 book Search and Destroy: African-American Males in the Criminal Justice System. �It erodes whatever social bonds exist in families, in the community, or in the streets�loyalties which, in past years, kept violence within bounds.�

In the U.S. today, the worst effects of the snitch culture are felt by inner-city minorities. But the government increasingly encourages employees, colleagues, and even patients to spy on doctors or other successful and respected individuals. The endpoint is portrayed in fiction by Orwell�s 1984. And the extreme historic example is described by Viktor Suvorov in The Chief Culprit: Stalin�s Grand Design to Start World War II (2008).

Suvorov writes: �The Civil War in Russia was...also a series of punitive expeditions against those who did not want Communism.� Tukhachevski, a junior officer promoted to commander by Lenin, �declared all those who opposed the illegal Communist leadership to be �bandits��.� While Hitler, in 1941, herded the enemy�s population into a ravine and machine-gunned them, Tukhachevski, in 1921, �on top of this, besieged the entire population of his own country with a mutual criminal responsibility.� In the criminal underworld, this tactic later was known as �forced snitching.� All the people were forced to betray their families and neighbors. Fear was used to crush centuries-old village morale. Tukhachevski �replaced all moral codes with fear for one�s own skin, and made each person accountable for all the others� deeds.�

After beating the populace into submission, Tukhachevski himself was purged, as Stalin prepared for war: �It is well known that an army that has sullied its uniforms with the blood of its own people is incapable of fighting against outside enemies.�

But It Can�t Happen Here

When Berwick and others harp on �accountability� and demand ever more intrusive reporting, what do they really mean? Lack of data can be called �obstruction of justice.� What is their stopping point for punishing collective guilt? The term �bandits� is out of vogue; now we worry about �terrorists.� Russian diplomats are reportedly concerned about the �growing totalitarian bent of the Obama government,� as shown by the planned reintroduction of the Violent Radicalization and Homegrown Terrorism Prevention Act (EU Times 5/31/10). In his National Security Strategy document, Obama has ordered federal police to begin targeting Americans who oppose him, warning of individuals who have been �captivated by extremist ideology or causes.� See your Newspeak dictionary for definitions.

What is Private Medicine?

There are at least two large groups of Anesthesiologists in Jackson. Each doctor...holds out that he is �in private practice.� Starting in the �40s, I publicly exposed the charade. Each of them is in corporate practice and practices corporate medicine. Anonymous practice. The groups have contracts with the hospitals.

A friend who had gall bladder surgery a couple of days ago has no idea of the name of the anesthesiologist (note small a) who attended him. Mr. Johnson didn�t have any direct contact, pre or post, with the doctor who suspended his life. He will not get a bill directly from that doctor. He will not pay that doctor directly. The anesthesiologist who �put him to sleep� was not the one who �made (perfunctory) rounds� (if there was any such contact) on him prior to the OR encounter. There is a good possibility that a nurse actually �slept� him�an anesthesiologist �supervising�.� Yet these anesthesiologists call themselves in �private practice.�

I practiced alone for more than five decades. I knew each of my patients, inside out. And each one of them knew me�by name, face, and touch. I practiced private medicine.
Curtis Caine, M.D.

Foreseeing the New Rules

�We are going to continue to tell the truth about this law. It is a bad law. We know that misrepresentations about it...will continue because it is so bad there has to be a coverup.

�Under this law, the Government official who wants confidential information to use against a patient...will no longer have to burglarize a doctor�s files such as the White House did in the Ellsberg case�. It is planned to have massive, detailed, computerized files on patients and doctors which will be instantly available to federal employees as an aid to the surveillance program....�

[Donald Quinlan, Hearings before the Subcommittee on Health, Committee on Finance, U.S. Senate, May 8-9, 1974.]

Donald Quinlan, M.D., R.I.P.

Local Exposure

Nominating Committee Report

President-elect: Alieta Eck, M.D., Somerset, NJ
Secretary: Charles McDowell, Jr., M.D., Johns Creek, GA
Treasurer: W. Daniel Jordan, M.D., Atlanta, GA

Directors: Claud A. Boyd, Jr., M.D., Augusta, GA; Robert J. Cihak, M.D., Brier, WA; Howard F. Long, M.D., Pleasanton, CA; Juliette Madrigal-Dersch, M.D., Austin, TX; and Elizabeth Lee Vliet, M.D., Tucson, AZ.

The Three I�s

ACA �produces $200 billion in savings by assuming that providers can improve their productivity as firms in other industries have done� [emphasis added] writes Robert Berenson (NEJM 5/26/10). He suggests that government set all-payer rates.

AAPS Calendar

A Duty to Suffer or Die

Amazingly, Canadians seem to need an explanation for why that is not legitimate: it �offends the basic liberal principle that all persons should be treated as equals; no citizen may be treated as a mere instrument to improve the welfare of another.�

Monahan�s answer: enforceable limits on waiting times. Yes, you may pay privately, but first you have to wait long enough.

Dr. Chaoulli will be the banquet speaker at the AAPS annual meeting in Salt Lake City (see J Am Phys Surg, fall 2005).

�Meaningful Use�

The requirements are summarized by David Blumenthal and Marilyn Tavenner (NEJM 7/13/10). Widespread use of EHRs is �inevitable,� they say, and the subsidies are a �transformational opportunity to break through the barriers to progress.� EHRs are needed to �support the patient�s transitions between care setting or personnel.� And computer decision help requires computerized entry of orders, as well as all the patient data.

Backing Off? PECOS and Red Flags

CMS has also created an exception for the 10,000 physicians and other �eligible professionals� who have �validly opted out of the Medicare program.� They do not need to enroll in PECOS to order or refer for services�but they do need an NPI (Federal Register vol. 75, no. 6, p. 24443, May 5, 2010).

Enforcement of the Federal Trade Commission�s Red Flag Rules has been delayed indefinitely�at least against members of the AMA or a state medical society, until the appeals court and the FTC resolve the litigation filed May 21. Or Congress might pass a law exempting small physician practices from onerous identity-verification rules meant for financial institutions (Medical Practice Compliance Alert 7/12/10).

Under Suspicion�for Not Billing

DecisionHealth Professional Services did note, however, that �Medicare patients have the right to demand that you don�t file a claim for a service, in which case you may bill the patient� (Medical Practice Compliance Alert 7/12/10).

Snitching and Professionalism

�This finding is troubling,� write Catherine DesRoches et al., �because peer monitoring and reporting are the prime mechanisms for identifying physicians whose knowledge, skills, or attitudes are compromised� [emphasis added]. Of those who admitted to an incident of nonreporting, 9% said the reason was that the physician would be �excessively punished.� Physicians in practice longer than 30 years, or in solo, 2-person, or group practice were less likely to completely support reporting. Physicians practicing in hospitals, clinics, or academic settings were more supportive. It was noted that physicians could come to an erroneous judgment about a colleague�s competence or functioning in case of a difference of opinion about diagnosis or treatment, and the survey could not determine how often such a misclassification might have occurred (JAMA 2101;304:187-193).

AAPS Files Amicus Letter for Dr. Ellison

After painstaking review of voluminous expert testimony, a Judicial Review Committee had found no significant wrongdoing or negligence that would remotely have justified revocation of surgical privileges. Without any evidentiary basis, the hospital board simply disregarded and overturned the JRC�s conclusions. AAPS pointed out many signs of bad faith.

The California Medical Association also filed an amicus letter, but it simply asked for the lower court decision affirming the hospital�s action to be depublished, in order to avoid a harmful and unjustified precedent. AAPS writes that depublication would neither remedy the injustice to Dr. Ellison nor prevent future abuse. �Unless this Court reviews and reverses the decision below, it is a certainty that unqualified lay administrators again will unjustly ostracize and destroy other physicians.�

Correspondence

�For those physicians who are beginning to suffer from �beggar�s fatigue,� constantly going to Congress, tin cup in hand, begging for a few more crumbs for a few more months, opting out of Medicare means being able to charge whatever fee the physician needs to remain in business and serve patients. And most physicians find that by eliminating the enormous overhead cost of constantly fighting the Medicare bureaucracy for payment, they can set a fee that is very affordable for patients. There are no more Medicare claims to file; no more appeals for wrongfully denied claims; no more meddling by bureaucrats; no risk of ruin or imprisonment from audits; the ability to practice medicine again instead of government bureaucracy.�

I provide a link to the simple step-by-step instructions at http://www.aapsonline.org/medicare/optout.htm, my phone number for questions, (716) 627-7759, and permission to copy and use anything from my personal website, www.PrivateNeurology.com.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

OSMA is a nonprofit, but it has a wholly owned, for-profit subsidiary, the OSMA Insurance Agency, with revenues approaching membership dues, which appears to have a nearly exclusive agreement with Medical Mutual Insurance Company. This company pays even nonparticipating physicians at less-than-Medicare rates! Yet OSMA complains to Washington that Medicare rates are insufficient! Its executive director�s compensation package of more than $600,000 probably has something to do with the profits from its subsidiary, which is selling its physician members short. Then, OSMA leaders are meeting with CareSoure officers, to advance the interests of this Medicaid HMO, which is growing rapidly, wholly funded by taxpayers but very likely controlled by hospitals; the chairman of its board is a big hospital administrator.
Kenneth D. Christman, M.D., Dayton, OH