Volume 56, No. 2 February 2000

UP FROM SLAVERY

Physicians are beginning to think of themselves as slaves these days-despite the outraged reaction of disciples of Martin Luther King. While chattel slavery has been abolished, other forms of servitude have arisen, to the detriment of all.

A slave economy is not only unjust to slaves, as Booker T. Washington pointed out: "The slave system ... took the spirit of self-reliance and self-help out of the white people." The masters never learned a productive skill, as labor was beneath them, and the slaves had no personal interest in the life of the plantation. Thus, everything was in disrepair, and much was wasted. When freedom came, the slaves were almost as well fitted to begin life anew as the masters (Up from Slavery).

Physicians are not literally on an auction block, where prospective buyers can examine their teeth. Yet whole groups may be up for sale when a corporation is bankrupt. While the "providers'" dental health is of little concern, their mental health (attitudes and beliefs), financial performance, and patient records are in for intense probing by "payors."

A slave has no property rights, only the privileges conferred by the master. Today, physicians have privileges conferred through licensure or accreditation; property rights in their own skills, education, and labor are increasingly restricted. One's entire investment in a facility, for example, can be wiped out with a stroke of a bureaucratic pen for lack of certain words on a document (see AAPS News 1/2000). One's medical license can be revoked for reasons unrelated to competence or ethical behavior, such as failure to buy prescribed liability insurance. One's hospital privileges may be contingent upon providing uncompensated service or upon membership in a group favored by the hospital for an exclusive contract. Employability can be destroyed by malicious peer review under cover of government-guaranteed immunity, with reporting to the National Practitioner Data Bank.

A physician's ability to determine his own remuneration and working conditions is circumscribed, not by voluntary decisions of free-market customers, but by federal law. The range of acceptable prescriptions and procedures is increasingly narrowed. Boundaries are set by federal agencies, CPT codes, managed-care policies, and elite committees. Practice "guidelines" are proliferating-deviations make one a target for scrutiny. Physicians are presumed incapable of evaluating scientific evidence for themselves or of making independent medical judgments. They need to be monitored constantly by genuine high- school graduates. Their time and energy drained by bureaucratic busywork and compliance plans, they will soon become incapable of innovation, and ignorant of the state of the art in their own field-as befits their status as slaves.

No individual holds a bill of sale for a physician. But many hold an entitlement to a portion of the physician's labor: bureaucrats, tax collectors, and "covered lives." The officials may be very highly educated in the manner of Chinese mandarins, although in possession of no skills useful outside the artificial system. The patients, increasingly at the mercy of the payors, are presumed to be incapable of dealing with the simplest ailment without "coverage."

Physicians were not captured in warfare, sentenced to the galleys of medicine because of a crime, or born into slavery. For the most part, their plight resulted from voluntary acquiescence or laws passed by a democratic process.

If physicians signed a managed-care contract agreeing to work for whatever the corporation deigned to pay, and for a term that survived the bankruptcy of the company, they have only themselves to blame when the liabilities come due.

Other than through political action, however, physicians have no control over the tax burden. As an early British queen, Boadicia of the Iceni, said in 60 A.D., "How much better it would have been to have been sold to masters (into chattel slavery), than possessing empty titles of freedom to have to ransom ourselves every year (with Roman taxes)." For U.S. taxes, there is no conquering evil empire to blame and enormous popular support because so many Americans believe they gain more from taxes than they pay. Physicians chafe under Medicare shackles, but depend upon the revenue, as their entitled patients are unwilling or unable to pay independently.

Many physicians who see themselves as half slave, half free, are desperately seeking a rescuer: a labor union, a new type of managed care directed by a person with a medical degree, the "Federation" of organized medicine, or even the Single Payer. In every case, one form of servitude or a new master would be exchanged for another.

The only solution is for physicians to assert their rights and to reject their chains. This means they must renounce the blandishments of their would-be taskmasters. They must look to each other and to their patients, not to false messiahs and foreign (socialist) theories gussied up with new labels.

Is the situation desperate? No more so than that faced by Americans in former times. The best advice for freed slaves was probably given more than a century ago by Booker T. Washington at the Atlanta Exposition on September 18, 1895:

"A ship lost at sea for many days suddenly sighted a friendly vessel. From the mast of the unfortunate vessel was seen a signal, `Water, water, we die of thirst!' The answer from the friendly vessel came back at once, `Cast down your bucket where you are.' A second,...third, and fourth signal [were answered in the same way]. The captain of the distressed vessel, at last heeding the injunction, cast down his bucket, and it came up full of fresh, sparkling water from the mouth of the Amazon River" (BT Washington, Up from Slavery, 1901).

An "Unassigned" Office

Let me update you on my relations with Transamerica. I have been asked to send all my claim forms directly to Norma Sandoval. I can call or FAX her for any questions or errors, and she responds personally. Though Transamerica has done this to shut me up, my billing has been running smoothly, even with unassigned claims, a constant problem before.

Robert Bork (see AAPS News 9/99) explained the difference between an "entitlement" (such as Medicare) and a "right." Although patients are unaware that Medicare has the right to deny care as "unnecessary," even if it benefits the patient, this is the law. Patients should be told; instead, physicians take the hit by taking assignment without involving the patient. I have not been able to persuade my colleagues to bill unassigned, even though all of them agree "in principle."

I have now converted my office completely to "unassigned" billing. I bill a 99215 for most office visits because these visits are medically complex and very time-consuming. Oncology patients have complex medical problems involving many systems. However, Transamerica's computers do not think 99215 visits are warranted, simply because of the number billed. Therefore, they deny visits randomly or downgrade them to a 99213, without seeing any medical record.

All of my patients sign an ABN acknowledging the possibility of a medical necessity denial. The patients receive a denial form letter from Transamerica, and I get a copy. Some don't care. Some are so upset that they transfer their care to another oncologist, suspecting that I am up to something (this is what they are told by Transamerica). Workers at Transamerica are unfamiliar with unassigned billing and tell patients that "the doctor is not allowed to charge them."

Patients who try to deal with Medicare audits get a rude awakening about how the system works. If patients wish to appeal, I send them the record. I instruct Transamerica to correspond only with the patients; after all, it is their Medicare.

All of this has made me a very happy doctor. I spend as much time with my patients as they wish. The visit is over when the patient is ready to leave. I see about three or four patients in the office each day. They pay up front. I got rid of all my personnel. My income has actually increased. It turns out that the income generated from all those other patients I used to see was required to support my office staff. With few patients and up-front payment, I can handle phone calls and computer billing by myself.

My hospital practice remains "assigned" as hospitalized oncology patients are too sick to discuss billing. Transamerica has not asked for hospital prepayment audits for 6 months; they are still working on prepayment audits from March, 1998. I was recently paid my rightful $24.00 for two 99211 visits from March, 1998!

When all else fails in the audits, I am informed by a nonmedical person at Transamerica that the visit was not "medically complex" enough. No specifics are ever given, and the letters show a complete lack of medical understanding, often using a "diagnosis" that makes no sense.
Linda W. Wilson, M.D., Culver City, CA

A Bonfire for Managed Care Contracts

On December 17, 1999, David Jaffe, M.D., President of the Harford County (MD) Medical Association, burned all his HMO- related contracts in a public ceremony.

"HMO participation, in our office's experience, is incompatible with delivering quality care," Dr. Jaffe said.

"Without the substantial administrative burden of insurance claim and referral processing, we will now be able to offer our self (i.e. cash, check, credit card) paying patients the most affordable price for physician visits."

Dr. Jaffe urges his colleagues to follow his example: "Only by collectively refusing to participate in this HMO corporate serfdom can we bring it to an end."

The sky did not fall. As of January 6, Dr. Jaffe reports that "life is great here in HMO-free land."

Retirement Community Doctor Opting Out

John A. Bennett, D.O., a general practitioner in Sequim, WA, has sent his patients a "Declaration of Independence from the Medicare Program," listing numerous reasons for opting out as of April 15, 2000. "As you might imagine, this has caused quite a stir in the community," he writes. "My fellow physicians are hoping that I am successful. They will wait a while to opt out themselves."

Dr. Bennett's practice, which has been full for years, is about one-third Medicare. He expects to retain between 10% and 25% of those patients, and to rebuild his practice with patients he has been turning away. He considers the action to be risky, but not self-destructive.

"So far it has surprised me. Some of the patients that I thought could best afford my services were the first to request record transfer. Others, who seemed to be pressed by finances, have expressed their wish to contract privately."

"Ask not what your country can force other people to do for you," is Dr. Bennett's conclusion to e-mail messages.

Dr. Bennett's Declaration is posted at www.aapsonline.org under "Medicare."

AAPS Calendar

Feb. 5, 2000. Board of Directors meeting, Dallas.

Oct. 25-28, 2000. 57th annual meeting, St. Louis.

The most impressive result of Tocqueville's researches [on the causes of the French Revolution] was that the government had...grown so centralized that all public activity was in controlled, anonymous hands. The people were treated as children in the wealthiest country in Europe....[W]e are now in the same position as the French under the Old Regime.

Otto Scott's Compass, 1/1/2000

Reverberations: Total Quality Management

Responses to Total Quality Management by Gerry Smedinghoff, AAPS pamphlet no. 1069:

Since I was involved in quality control at IBM, I have some comments. Deming is a fraud. TQM is not a science but hokum. Quality circles were a flop at IBM. The failure to trust programmers to produce quality code led to the creation of massive peripheral checking operations by uninformed personnel that merely added to the cost of production and not the quality of output. Deming, TQM, quality control, administrative cost control, or whatever you want to call it did to IBM what no competitor could ever achieve. It is also doing to doctors, and to every other organization that applies it, that which competitors could not do to them. It is all part of the effort to socialize the delivery of goods and services.

Success in business comes from giving qualified workers responsibility for producing, trusting them to do the job, and occasionally verifying that they have done the job well. This approach applies not only to medical services but to manufactured goods as well. Honda does not trust some ephemeral control system to produce good cars. It does the obvious, and checks to make sure. It may be the old-fashioned way, but it is the only sure way.
LaMar L. Briner, President, LLBIS, Inc.

Gerry Smedinghoff's TQM article is one of his most brilliant pieces, but it did not address the many processes in doctors' offices and hospitals for which TQM/CPI can be applied. Patients and treatments may be too variable, but many processes are not: for example, accurate entry of information into data bases and the accurate filling of prescriptions. Every time I interface with the medical system as a patient, I am shocked at how antiquated it is in terms of continuous process improvement, not in terms of technology or doctor ability.... Certainly, someone can maintain a simple frequency chart of how many prescriptions are illegible and set an improvement goal....Something this simple would lead to other innovations, like electronic entry of prescriptions, which would make life simpler for docs....With my pathology lab client, I put in some simple quality metrics and CPI tools. Unbelievably, they didn't maintain any statistics on the accuracy of their lab results or turnaround times. The vets and the technicians loved it because they were dedicated to doing the best work possible. We helped them achieve huge gains in efficiency and effectiveness.
Craig Cantoni, Capstone Consulting

Jury Verdict in U.S. v. Doright

Outcome of the mock trial at the AAP 56th annual meeting:

We, the members of the Jury,... find the defendant, Freeman Always Doright, M.D., President of AAPS, Fearless Leader of that renegade group,..., Author of The Medicare Cakewalk and other masterpieces, Nemesis of Medicare, Bane of HCFA, Official Lampoonist, NOT GUILTY of mail fraud.

And furthermore, we, the Jury, in accord with the current practice of judicial and jury activism, hereby find the Prosecutor's conduct during the trial to be REPREHENSIBLE, and the utilization of the Medicare system as the conduit for HCFA hostilities against the medical profession, the servants of the sick and the infirm, for the usual and standard practice of sending statements through the US mail, UNCONSTITUTIONAL. And, furthermore, we the Jury hereby ask the court to assess against the Prosecutor the standard fine of $250,000, and to restrict him from the court room and forbid him the use of a telephone, computer, keyboard, or mouse for a period of twenty (20) years [under pain of 20 years imprisonment].... This is a fair and reasonable verdict SO HELP ME GOD.
read by Del Meyer, M.D., Sacramento, CA, Foreman

Land Mines

Medicaid Travel. Before signing a certification statement, Martin Edelstein, M.D., of Great Neck, NY, wrote to request necessary information: "As my signature will bind me under law to the government for any direct or indirect monetary damages, please send me a copy of the following laws that you are informing me that I am bound by: Title 18 of the Official Compilation of Rules, Other Publications of the Department including Regulation 504.8(2), and Social Service Regulation 505.10(b)(5). Please also inform me of the mileage distance from the patient's home to where she will go for care. Furthermore, ... if the patient will be traveling outside the CMAA, please inform me whether there might indeed be any other centers of specialized care within the patient's/recipient's CMAA that I might not be aware of...and the extent of...their waiting lists."

BlueCross BlueShield of Illinois. PPO agreement, provision #2: "Except as to the amount and manner of payment specified below, this Agreement shall in no way affect the usual patient/Provider relationship [sic.]." #11: The PPO Plus Provider will ... permit the Plan or its agent or representative to review [medical and administrative] records regarding Covered Persons ... for the purpose of utilization management and quality improvement activities." Nelson Borelli, M.D., of Chicago notes that parts 2 and 11 are contradictory and that he could not ever treat a psychiatric patient knowing that records of conversations were to be divulged to third parties.

Medical Staff Bylaws. Mercy Health Center in Oklahoma City has this provision under "Qualifications for Membership": "Economic credentialing criteria shall not be used solely to determine the qualification for membership on the Medical Staff...." Steven Lantier, M.D., points out that Mercy Health Systems was sued for implementing economic credentialing and that a bylaws provision specifically allowing it could make the hospital less culpable. The wording is such that physicians may erroneously think they are voting against this process.

Tax Slavery

When Patrick Henry declared that patriots would rather die than be slaves, he was referring to tax slavery. One source of inspiration for the revolutionaries was Baron du Montesquieu, who described taxpayers in Muscovy, Russia, who became landed serfs to avoid the czars' ruthless tax administration. The Founding Fathers also studied the fall of Rome, in which one freedom after another was taken away in order to feed the growing welfare state. All of Rome's efforts were soon designed to protect the tax stream. Roman subjects welcomed barbarian conquerors as de facto tax reformers.

Is the U.S. following the same route into corruption and oppression? Tax Freedom Day was Jan. 31 in 1902, and May 10 in 1998 (Charles Adams, Investor's Business Daily 4/13/99).

Members' Page

Corporate Compliance. Our hospital now has a corporate code of conduct, with which we are all supposed to comply: truly bureaucracy ad absurdum.

How can they themselves comply with their own code, which mandates "confidentiality of all information," once the information is entered into a networked computer? And how will they "provide the same quality and standard of care throughout the healthcare organization regardless of patient's ability to pay or payment source?" Everything done in hospitals is closely tied to payor. If the patient has the misfortune of being "covered" by managed care and needs an inpatient MRI, be prepared to get down on your knees and beg. If the patient is "covered" by Medicare and the MRI can be done as an outpatient, you must wait at least three days or it will be considered "included" in the DRG.

The reason for the corporate compliance plan is that the government says it might be taken into consideration when and if they decide to impose fines and imprisonment for mistakes ("healthcare fraud"). Apparently, if your promise to be good is printed up on paper somewhere, that's proof of intended goodness. Maybe if Jeffrey Dahmer had written up a document ahead of time, in which he said he didn't intend to kill or eat anybody, he might have gotten a lighter sentence?
Lawrence R. Huntoon, M.D., Ph.D., Jamestown, NY

KidCare Bounties. Although parents know about the New Jersey KidCare program, many are choosing to forego it. The would-be champions of "the children" will not give up. They are planning to spend $1 million on a public relations program to make the concept more palatable. With another $1 million, they will pay people to rope the kids in and hand parents a pen to sign the forms: $1,000 start-up costs and $25 per child. The bureaucrats must be frantic that they might lose their CHIP funding and their jobs with health-care benefits.
Alieta Eck, M.D., Somerset, NJ

The "Uninsured" and Medicaid. Are states that expanded Medicaid having trouble enrolling people? Medicaid is a lousy program that no one would want if there were any other choice. Moreover, there is no advantage to being "enrolled" if you don't need services. Once you're sick, you can be instantly signed up with no waiting period or penalty.
Greg Scandlen, Alexandria, VA

Government Creates Jobs. In 1974, Gerald Ford signed the Employee Retirement Income Security Act (ERISA), which actuaries proudly refer to as the "Full Employment for Actuaries Act." A certified actuary must sign the annual statements filed with the IRS. When clients complain about the inflated rent- seeking fees that actuaries charge to keep their pension plan in compliance with the law (ERISA law changes almost as much as Medicare), the actuaries smile and say, "If you don't like the law, write your congressman."
Gerry Smedinghoff, Consulting Actuary

On Documentation. The Texas Medicare carrier is paid large sums to process all claims. At this point, by not paying clean claims and telling patients we have not filed their claims, they have almost completely destroyed my practice. As Scaevola shouted to Cicero (106-43 B.C.): "Imbecile! Of what use are records presented to tribunes, consuls, or senators if the government is determined to rob and destroy a man who had displeased them, or who possesses what they want?"
Richard Swint, M.D., Paris, TX

On "Uninsurance". I advocate outlawing insurance....In the 1980s, when Missouri Medicaid almost never paid, most doctors I know saw Medicaid patients and either didn't bother filing claims, or filed them knowing they were like lottery tickets that would probably never pay off. Once I had a claim rejected because I used an Arabic rather than a Roman numeral. When I resubmitted it, I had it rejected because I used a Roman rather than an Arabic numeral. Insurance doesn't take care of anybody; it's just a swindle, an economic cancer. As Ross Perot said, "To have a rich country, you have to make things. We're just selling each other insurance."
Joseph C. Keller, M.D., Chesterfield, MO

The Real Struggle. As a Cuban refugee who came to this country at the age of 12, I gave up a long time ago trying to characterize leftists as "well-intentioned but misguided souls." That label is better applied to the current crop of Republican leaders. Most of them fail to understand that the struggle in our nation today is not between two competing views of democracy but between two competing view of totalitarianism. Clearly, reality teaches us that the superiority of socialized medicine is simply a myth. The enslavement of doctors is the ultimate goal....Under socialized medicine, there will be two kinds of doctors: the slaves and the masters. I guarantee that the Woolhandlers and Himmelsteins of the world plan to be in the latter group. Why are so many physicians joining them? For the same reason fascists and socialists have been voted into power so many times: the most vicious and inhumane philosophy ever dreamed up is packaged and sold to the masses as the "compassionate" alternative to capitalism. Until doctors are willing to defend their freedom to produce and their right to own the product of their labor, we are all doomed.
Roger Menendez, M.D., El Paso, TX

Legislative Alert

The Good, the Bad, and the Silly

With the Presidential primary season just weeks away, the major Democratic and Republican presidential candidates are fleshing out their health-care proposals. Republican Steve Forbes and Democrat Bill Bradley clearly have the most highly developed proposals. Vice President Gore, a champion of Clinton s health policy, has proposed an expansion of traditional government "insurance" programs, with a modest tax credit tacked on. Senator John McCain has been pushing Medical Savings Accounts, a Medicare prescription drug demonstration program, and insurance market reforms to expand coverage among employees of small firms. Texas Governor George Bush has not yet unveiled a detailed plan.

Health policy is going to be a major issue. Problems of access, cost, and quality are getting worse, not better. More and more Americans, doctors and patients alike, are finding themselves on the receiving end of decisions made by someone else, regardless of their wants, needs, or professional judgment.

The rising frequency of "uninsurance" is now officially estimated by the Census Bureau to exceed 44 million Americans-a significant overstatement, as, for example, about 18% of Medicaid enrollees report that they do not have coverage. Employment-based medical insurance premiums are increasing by 8 to 12% for 2000. And the "quality" of care debate has intensified, as the massive shift from traditional indemnity plans into HMOs continues. (Today, more than 4 out of 5 Americans are enrolled in HMOs.)

Key Components