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of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto
Volume 61, No. 2 February 2005
NO DOCTORS, NO MALPRACTICE
The trial lawyers and their political servants say they have
the answer to spiraling premiums for professional liability
premiums: get rid of malpractice, by "disciplining" the doctors
who "commit" it so that they can't practice.
Even President Bush, while campaigning for federal caps on
awards, commissioned a study by the University of Iowa and the
left-leaning Urban Institute to "help state boards of medical
examiners in disciplining doctors" (NY Times 1/5/05).
"If you had more aggressive policing of incompetent
physicians and more aggressive disciplining of doctors who engage
in substandard practice, that could decrease the type of
negligence that leads to malpractice suits," stated Josephine
Gittler, a law professor at Iowa.
"If you take the worst performers out of practice, that will
have an impact.... Most doctors have few or no claims filed
against them," said Randall Bovbjerg of the Urban Institute.
The same article notes that, according to the Federation of
State Medical Boards, the 5,230 disciplinary actions against
doctors in 2003 was up 7% from 2002 and 41% from 1993.
Meanwhile, New York hospitals have experienced an average
increase of 27% per year in their liability premiums over each of
the past 5 years, for a 150% increase since 1999. Since 2000, the
number of insurers has decreased from six to four (NY
Times 1/6/05). In 2004, some Pennsylvania surgeons were hit
with a 300% increase, so that premiums equalled their take-home
pay for an entire year (AP). In Maryland, about 70% of the
obstetricians have been sued at least once, with the average
settlement exceeding $1 million (Wash Times 12/12/04).
So, more disciplinary actions have been accompanied by
higher liability costs not supportive of the plaintiff's bar
theory. Has disciplinary activity been misdirected?
In New York, the percentage of actions for "poor quality
care" dropped from 40% in 1999 to 28% in 2002 (AP) despite
doubling physicians' licensing fees to fund more investigations.
In Texas, failure to furnish the board with requested
information within 24 hours has led to harsher penalties than
removing the wrong part of the lung (Star-Telegram
"It is extraordinarily difficult to discipline a doctor
based on incompetence. Everybody knows that some doctors are in-
competent, but identifying them is a very difficult task," said
Timothy Jost, law professor at Washington and Lee Univ. and
former member of the Ohio medical board (NY Times
Massachusetts plans to have the tort system serve as a
screen. Three or more payouts, either in settlements or
judgments, will trigger a clinical review by the board
Maryland trial lawyers, while pretending to enact tort
reform, forced through a bill that would foist part of tort costs
onto taxpayers, while limiting further the due process rights of
physicians facing board action. H.B. 2, passed in special
session, changes the standard of proof for disciplinary action
from "clear and convincing" to "a preponderance of the evidence."
Governor Ehrlich vetoed the bill, as promised, but the
legislature acted quickly to override the veto.
Tackling the "difficult task" of identifying "substandard"
care are government agencies and insurers undeterred by
inability to define terms such as "quality." While moving ahead
with implementing a 2004 Minnesota law (M.S. 62J.43) requiring
the state health department to begin standardizing the practice
of medicine, Cabinet members were reluctant to give Twila Brase,
President of Citizens' Council on Health Care, the definition she
Quality is "a little bit in the eye of the beholder," said
Health Commissioner Diane Mandernach (CCHC Insider
Report, winter 2004).
In the name of quality, UnitedHealth Group will monitor how
well physicians follow guidelines for ordering imaging studies,
claiming that "30 to 40% are ordered inappropriately"
(Business J of the Greater Triad Area 12/27/04).
Horizon Blue Cross Blue Shield of New Jersey will be using
claims data to compare doctors on clinical quality. It will send
the first performance reports to 600 gastroenterologists and
OB/Gyn specialists (Wall St J 12/15/04).
While such efforts may be styled as "pay for performance,"
with bonuses for compliance, "outliers" may find themselves
targeted for licensure actions or alleged fraud or violations of
antikickback laws, as insurance companies often have
relationships with prosecutors (MSSNY 11/04) or boards.
Malpractice suits frequently are filed against physicians who
experience an audit, indictment, or board action.
Physicians are dropping out, one by one. In Illinois, 23 of
102 counties have no hospital, and an additional 26 have no
hospital obstetric services (Wall St J 1/4/05). It's not
just the money. After enduring the "intellectual rape" of a
malpractice action, neurologist Michael S. Smith, M.D., decided
to take an enormous pay cut and become a statistician
Medical students had such an emotional reaction to the
prospect of a doctor being sued that David Rothman stopped
teaching Columbia students about it (NY Times 12/14/04).
But bright prospective physicians have already figured out the
high risk of investing in a medical education. "Kids are getting
in today who would have been laughed out of the admissions office
a few years ago," writes Herb Rubin, M.D., of UCLA.
If medicine by protocol is really better than care by a
skilled professional, who needs physicians? A technician
following a "guideline" isn't really a physician.
Are trial lawyers really so short-sighted as to endanger
their livelihood by destroying medicine as a relatively affluent
profession? Or are they helping to guarantee far worse outcomes,
with ever rising damages to be paid by insurers backed up by
governmental taxing authority?
EBM = Managed Care
According to Princeton economist Uwe Reinhardt, "EBM
[evidence-based medicine] is the sine qua non of managed care,
the whole foundation of it."
EBM is not an intellectual movement. In his 2004 State of
the State address, Minnesota Gov. Tom Pawlenty said he intends to
"leverag[e] the purchasing power of the state and other partners
to force health care providers to use best practices and
deliver higher quality results" [emphasis added].
According to David Eddy, M.D., Ph.D., practice guidelines
"can be a mechanism for nonclinicians to use in controlling
clinicians." As Gary Belkin, M.D., Ph.D., explains, "a given
version of scientific credibility is embraced to sustain
influence and power in society."
The objective is "total population management" (TPM), with
restriction of access to certain services. The "technocratic"
approach offers "a means of scientifically depoliticizing the
rationing debate," writes Keith Syrett of the Univ. of Bristol.
The scientific quality of protocols is dubious. Less than
15% of 217 drug therapy guidelines endorsed by Canadian
organizations over a 5-year period met half or more of their
criteria for rigor in the development process.
Assuring physicians that guidelines could only be used as a
defense in a malpractice action may help to garner support, but
allowing one-sided use of evidence in court raises constitutional
"EBM is aimed at stopping the heart of health care the
compassionate, first-do-not-harm, to-my-own-patient-be-true
ethics of medicine," concludes Twila Brase, R.N., in her
excellent analysis entitled How Technocrats Are Taking Over
the Practice of Medicine, January 2005, www.cchconline.org.
On Going Bare
"When you threaten their wallet, they'll come after you
harder than ever," warned Bob White, President of First
Professional Insurance Co. of Jacksonville, FL. Trial lawyers are
annoyed by the trend of doctors dropping their liability
insurance and are looking to make an example of somebody.
If you go bare, you increase your colleagues' risk as
plaintiffs' lawyers look for the deepest pockets, said Richard
Anderson, CEO of the Doctor's Company of Napa, CA. He advises
doctors against it for "societal" reasons, among others.
Mark Macumber, M.D., of Berwyn, IL, decided to relinquish
insurance contracts and hospital privileges and drop coverage
that was quadrupling in cost to $40,000 for part-time work. The
deciding factor was a discussion with a patient. When he said he
could not stay in town and practice unless he dropped his
coverage, the patient said, "That's fine. I'll sign something; we
just want a doctor."
Dr. Macumber gives his patients a consent form that informs
them of his lack of insurance and his indebted financial status.
Some say he is "risking everything for a principle." But he is
hardly alone. In Florida, about 6% of the state's 50,000
physicians are without professional liability coverage.
Those who profit from the tort system are beginning to worry
May 21, 2005. Board of Directors meeting, TBA.
Sept. 21-24, 2005. 62nd annual meeting, Arlington, VA.
Provider Enrollment Fraud Alert
A group representing itself as associated with Medicare,
possibly as fraud investigators, is calling physicians to request
information such as UPINs and SSNs on the pretext that CMS has
experienced computer problems. This is a hoax. If
you receive such a call, try to verify the caller's telephone
number, and inform CMS at (866) 454-9007. See "Action Alerts".
Physician Shortage Will Worsen
While the Association of American Medical Colleges (AAMC)
may soon revise its policy on the physician workforce, the number
of medical school slots and residency positions remains unchanged
as baby boomers age. From a high of 46,965 in 1996 (20,028 women
and 26,937 men), medical school applications dropped 28% to a low
of 33,625 in 2002 (16,556 women and 17,069 men), rebounding a
mere 6% by 2004. Note that applications by men dropped 37%.
The number of residency slots that will be funded by CMS is
capped at 98,000 by the Balanced Budget Act of 1997. The number
of medical residents per 100,000 people varies from 2 in Montana
to 73 in Massachusetts, 78 in New York, and 292 in the District
of Columbia. CMS is planning to redistribute positions from
hospitals that don't fill them to places of greater need. This is
a one-time maneuver; CMS does not plan to build in flexibility to
meet population needs. Caps set by CMS will be final as of July,
2005 (AM News 9/27/04).
The U.S. has 2.7 physicians per 1,000 people, compared with
a median of 3.1 in members of the Organization for Economic
Cooperation and Development (NY Times 7/8/04). Some
340,000 U.S. physicians 38% of the total are age 50 and older.
According to a survey by Merritt, Hawkins, & Associates, a
majority of physicians age 50-65 plan to cut back their practice
or retire in the next 3 years. Medical liability worries were
cited as their greatest single professional frustration by 28%
(AzHHA Weekly 4/2/04). A survey by the American College
of Obstetrics and Gynecology (ACOG) found that one in seven
fellows has stopped practicing obstetrics because of liability
concerns (eOb.Gyn.News 8/15/04).
Half the hospitals in Palm Beach County, FL, have no
neurologist available for ER coverage. Although there are plenty
of neurologists, many have dropped their professional liability
coverage because of soaring cost and are avoiding high-risk
situations (Palm Beach Post 6/28/04).
Computers a Major Source of Medication Errors
The U.S. Pharmacopeia (USP) reported that the technologic
panacea for safety is involved in 20% of reported hospital
medication errors. Computer entry errors, which are steadily
increasing, are the fourth leading cause of such errors.
Automated Dispensing Devices, the tenth leading cause, were
involved in 9,000 events (USP News Center 12/20/04).
Dr. William Hurwitz Convicted
Before the verdict on all counts was even reached, Dr.
William Hurwitz of Virginia was hauled off to prison after the
jury found him guilty on 50 counts of drug trafficking. He is to
be sentenced in March possibly to life imprisonment.
Prosecutors hailed the conviction, saying that it "sends a
major message who would use the treatment of pain as a cover for
being a drug trafficker."
Marvin D. Miller, an attorney for Dr. Hurwitz, said: "the
American people are suffering because law enforcement is taking
over the practice of medicine."
One of the phony patients, who deceived Dr. Hurwitz, sold
the prescribed pills, and testified against the doctor, made $3
million, and another made $750,000 in 2 years.
The prosecution never alleged that Dr. Hurwitz profited
directly from illicit drug sales. "Where's the split? Where's the
conspiracy? Where's the motive?" asked attorney Pat Hallinan.
Three past presidents of the American Pain Society wrote a
letter expressing sharp disagreement with the government's expert
witness Michael Ashburn, M.D., expressing concern that his errors
worsen the "national tragedy of untreated pain."
Around the time of the trial, the Drug Enforcement
Administration withdrew its highly touted "Frequently Asked
Questions" on pain management, some suspect to prevent its use by
the Hurwitz defense team.
The judge "limited the jury instructions so severely that it
had little choice but to come back with a guilty verdict," said
attorney Ken Wine. The good-faith defense was not allowed.
For the defense trial brief, the DEA's withdrawn FAQs and
commentary from the DEA and pain societies, and other
information, see www.aapsonline.org, under "Pain Management" and "DEA Policy".
The Power of the Jury
Jury nullification is one way to stop extreme injustices,
but it is clear from their questions to the judge that the jurors
in the Hurwitz case failed to appreciate their power and
responsibility. Trial attorneys are not allowed to inform
specific jurors of this right, but others can be more vocal in
informing the public, states attorney Andrew Schlafly.
In a letter to the editor of the Post and Courier
of Charleston, SC, Ed Haas writes: "The S.C. Supreme Court has
decided that judges can no longer tell juries that
`circumstantial evidence must be so strong as to exclude every
reasonable hypothesis other than guilt.' This ruling further
strengthens the government's efforts to minimize the power the
jury was intended to wield in the courtroom....
"If I walked into a courtroom and spoke to juries regarding
their absolute...right to ignore the judge, prosecution,
evidence, and even the other jurors; if I spoke of their
patriotic duty to nullify laws and punishments,...I can assure
you the judge would have me arrested and charged with jury
tampering. But when the state instructs the jury on how they must
interpret evidence or lack of evidence, is that due process?
"Thankfully, more...people are learning of jury
nullification and how to get on a jury under the state's
In a letter to the LA Times, Jerry Parsons writes:
"Because there are literally hundreds of laws that I would never
vote to conviction, I was thinking of printing up a T-shirt that
said: `Jury nullification: it's not just a right, it's an
obligation' and wearing it the next time I get called for jury
Texas Board Pain "Guidelines"
The Texas State Board of Medical Examiners has proposed a
complete revision to Title 22, Chapter 170, "Authority of a
Physician to Prescribe for the Treatment of Pain." This is
intended, writes executive director Donald W. Patrick, M.D.,
J.D., to provide "recognition of the need for the patients of
Texas to have optimal pain management." The revision "recognizes
that inappropriate pain treatment shall include over treatment,
under treatment, no treatment, and the treatment of patients for
no legitimate medical purpose."
The reason for the change, suggests C. Stratton Hill, Jr.,
M.D., President of the Texas Cancer Pain Initiative and Past
President of the Texas Pain Society, is to intimidate physicians
who might prescribe opioids. According to Dr. Patrick's article
in the June 2004 issue of Pain Practice, his ambition is
apparently to make opioids, in limited quantities, a treatment of
"last resort." In the light of this proposed rule and the DEA's
Interim Policy Statement published in the Nov. 16, 2004 Federal
Register, a physician who continues to prescribe opioids should
"have his/her head examined."
"There is nothing wrong with the current rule," Dr. Hill
writes. "Unfortunately, the Board has ignored it and disciplined
physicians as [it] pleased, unencumbered by any guidelines."
TSBME is expected to adopt the rule at its Feb. 3-4 meeting.
All comments are supposed to be considered. At this writing, the
link to the changes on the TSBME web site does not work; Dr.
Hill's highlighted version, with instructions on submitting
comments, is available at www.aapsonline.org.
Tip of the Month: An AAPS member alerted us to an
initiative of the CDC and Census Bureau to collect data about
patient visits from selected physicians. Participation is
voluntary for physicians (not for patients!), but
federal agents are flying around to visit doctors' offices to
facilitate compliance. Called the "National Ambulatory Medical
Care Survey (NAMCS)," it includes as users of its data the
Academy of Pediatrics, the Economic Commission for Europe, the
American Board of Medical Examiners, and the U.S. Senate during
its debates on nationalizing our medical system. Our member did
her part to reduce the federal deficit by inviting her visitor to
Victory Won Against Sham Peer Review
On Dec. 22, the Superior Court the State of California in
Sacramento County handed down a writ of mandamus in the case of
Gil Mileikowsky, M.D., vs. the Medical Board of
California (Case No. 04CS00969), ordering the Medical Board
to vacate its order to force Dr. Mileikowsky to undergo a
psychiatric evaluation to retain his license.
The Court ruled that: "as a result of various irregularities
in the process that resulted in the order..., no showing of good
cause was made, or, in fact, could have been made under the
procedure that was followed in this case."
The hospital conducting the sham peer review apparently had
hoped that the mere fact of filing an "805 report"
(psychiatrically impaired physician) was evidence that an
impairment existed. The Court disagreed. "Aggressive or
unpleasant behavior in the context of a confrontation" is not
proof of mental illness. The Court questioned the use of two-
year-old incidents; failure to consider petitioner's responses;
and the use of a medical reviewer who had a conflict of interest.
[AAPS filed an amicus
brief, which is posted on the web site.]
Insurers Adopting "Evidence-Based" Medicine. Blue
Cross/Blue Shield of Michigan, apparently with the blessing of
the Michigan State Medical Society, is adopting "incentive pay"
for physicians who follow "evidence-based" medicine as defined
by the insurer, of course. BC/BS anticipates awarding $12 to $15
million through this program. Notably, it will require physicians
to establish patient registries to permit measuring physician
performance against the "guidelines." "Good" physicians will be
those who follow the guidelines; "bad" physicians will be the
ones who deviate from them, even when it is in the patient's best
interest to do so.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
EBM Run Amok? A survey published in the Annals of
Internal Medicine and quoted in the Wall Street
Journal on Aug. 18, 2004, said there was widespread
"overuse" of follow-up colonoscopies in patients who had had a
hyperplastic polyp removed. This threatens to "overwhelm the
money and resources available for health-care maintenance," and
there are "other less-involved tests to screen for colon
problems." This appears to be a new front in clinician bashing
from the hallowed halls of academic medicine. Rather than doing
too little preventive care, specialists are now doing too much.
Yet at the same time some patients are said to be having trouble
getting a colonoscopy because of a shortage of people willing to
do them. Could the central planners have gotten it wrong when
they limited the number of residency positions?
Under what set of circumstances might an individual patient
wishing to lower his risk want to deviate from a bunch of
statistical results applying to an ill-defined population? What
might practicing physicians know that the authors of practice
guidelines do not? And how can a patient take recommendations at
face value when even specialty journals are apparently becoming
Linda Gorman, Independence Institute
Historical Perspective on "Best Practices." Some of us
remember prescribing stilbestrol almost randomly to women in
early pregnancy to prevent spontaneous abortion. The "scientific"
consensus was overwhelmingly in favor of its use. The
consequences became manifest only years later.
Stephen Barchet, M.D., Issaquah, WA
A Logical Necessity. If life and health have a
virtually limitless value and as a consequence plaintiffs and
their lawyers have a right to virtually limitless cash
settlements for real (or perceived) harm, doctors must have the
right to collect virtually limitless fees because they restore
health, which is of infinite value. Reality is different. If
doctors are limited in what they can collect for their successes,
it follows that restitution for real or perceived harm cannot be
Robert P. Gervais, M.D., Mesa, AZ
An Unintended Consequence of the NPDB. Because any
black mark in the National Practitioner Data Bank could be fatal,
doctors want to keep a virgin, snow-white record. Being a lawyer,
I have been able to discover that hospitals may protect doctors
who are valuable to them by allowing them to be dropped from a
malpractice suit. It is easier for plaintiffs' attorneys to get a
settlement from the hospital, which of course does receive 80 to
90% of the revenue from medical care.
Ronald A. Allison, M.D., Stockton, CA
State Doctors Protected. Our state medical institutions
have the lowest tort limit this side of the military: $500,000
total. After collecting this amount, plaintiffs' attorneys may
turn to the private referring physician to serve as the deep
pocket. Facing the risk, even a small one, of losing everything,
physicians are tempted to settle rather than fight back. The
absence of an upper limit on awards serves as an effective shake-
down technique. Also, whistleblower protections apply only to
physicians working in state-run institutions.
Russell W. Faria, D.O., Newport, OR
Lower Policy Limits Desirable. The lowest limit my
liability insurer will provide is $1 million/$3 million. I doubt
any lawyer would take a case with a $250,000 policy limit and a
physician without assets. But why would anyone want to become a
physician if he had to be asset-free to have peace of mind? And
if we do not wish to accumulate assets for attorneys to seize,
why work more than 20 hours per week?
Americans are beginning to view physicians as the scum of
the earth, judging by sources such as The New York
Times. They will not appreciate us as long as we are
Robert S. Berry, M.D., Greeneville, TN
Drug Pushers. As a psychiatrist since 1947, I am
appalled at the FDA's approval of psychotropic drugs for long-
term use when they have been tested only in the short term. One
result has been the transformation of the psychiatrist's role
from professional counselor to drug pusher even when patients
want to stop medication. Robert Whitaker's fine book Mad in
America shows how psychiatrists' nearly total reliance on
drugs, for which the FDA is largely responsible, has worsened
treatment results and harmed patients. Almost twice as many
people are now receiving Social Security benefits for mental
illness, compared with 15 years ago.
Nathaniel S. Lehrman, M.D., Nob Hill, NY
Legislative AlertForces for Liberty
In 1994 there was hope for the development of a political
movement limiting the scope and power of the federal government.
It was called the Republican Revolution. It was Republican but in
the end not very revolutionary. Republicans in leadership
positions, apparently enjoying their new power, betrayed the
principles that had brought them to power. As the revolution
fizzled, the Republicans as a whole joined with Democrats to grow
In 2000, Republican victories once again brought hope to
those who still cherished liberty, the right to private contract,
limited government, and Americans' ability to pursue their own
happiness unencumbered by government. Again, that hope quickly
faded as one new government program after another was created,
including the Medicare drug entitlement and corporate subsidy
programs. Government agencies, including the Department of Health
and Human Services (HHS) which does more damage to medicine with
every dollar it spends got more taxpayer money. More money also
flowed to the States, as for implementing the recommendations of
the New Freedom Commission on Mental Health a name with an
Orwellian ring. Then there is the continued assault on civil
liberties by laws such as the USA Patriot Act.
The one major party that claims to believe in liberty and
limited government has proven false to its word. And instead of
reviving the spirit of Jefferson, the Democratic Party competes
with Republicans for the mantle of centralized political power
and crony capitalism.
Things look bleak, but as with every challenge there are
Politically, there are a few opponents of Leviathan who are
gaining power and prestige. Tom Coburn, M.D., (R-OK) who fought
against his party leaders' power interests in the House, now
joins the Senate. He is expected to shake up the good-old-boy
network and work against the growth of government. A few others
in the Senate may join with him, including Sen. James Inhofe (R-
OK), who fought against universal mental health screening and the
de facto national ID provision in the Intelligence Reform Bill.
Then there is Sen. Russell Feingold (D-WI), the lone vote against
the USA Patriot Act.
In the House, we have Rep. Mike Pence, Chairman of the
Republican Study Committee, who said Congress "must undo" Bush's
signature No Child Left Behind Act, which sets national standards
for education. He says Washington should stay out of schools. The
hope is that Rep. Pence and other Republican Study Committee
members will have that same attitude when it comes to government
interference in the practice of medicine. The Liberty Committee
founded by Rep. Ron Paul, M.D., (R-TX) is a growing force against
unlimited and unconstitutional government.
New transpartisan coalitions, which defy the so-called left-
right political divide, are arising. These include the medical
privacy coalition, the anti-Patriot Act coalition, the anti-de-
facto national ID coalition, and the groups that fought universal
mental health screening. Another coalition worked successfully
against a bill that would provide federal funding for the
creation of state-based prescription drug databases. These
alliances were not based on political party or ideology, but on
concern for fundamental unalienable rights that needed to be
protected from government usurpation of power. The other feature
common to all was the participation and assistance of AAPS.
Outside the realm of politics, there are small marketplace
movements with the potential for a strong beneficial impact on
medicine and liberty. More physicians are renouncing or reducing
their connections to third-party payers, both corporate and
governmental. Meanwhile, more than half of Americans are
bypassing the corporate/government medicine complex to purchase
"natural" medicine products and services, spending more than $30
billion out of pocket each year for items such as dietary
supplements, acupuncture, and massage therapy. As these self-
directed customers and the practitioners who treat them encounter
the roadblocks set up by corporate interests and government, they
could become a powerful force for liberty.
Complementing the political and marketplace bulwarks against
tyrannical government is a growing intellectual movement. Since
1946, the Foundation for Economic Education (FEE) has been
educating the public on market economics, including the moral
superiority of free markets. Among other groups that are
concerned about freedom in medicine are the Institute for Health
Freedom, the Future of Freedom Foundation, the Citizens' Council
on Health Care, the Mises Institute, the Heritage Foundation, the
Galen Institute, the Heartland Institute, and the Independent
Institute. The political influence of the Cato Institute is
apparent in moving their concept of Social Security reform from a
white paper a few decades ago to national policy today. Citizens
for Health educates consumers about politics and the need to turn
the consumer health movement into a political movement. The
International Center for the Study of Psychiatry and Psychology
and the Center for Cognitive Liberty and Ethics inform Americans
about consent and their rights to be free from government
psychological coercion. Of course, AAPS has been in the fight for
freedom, private medicine, and limited government longer than any
of the groups mentioned above.
Although the state and its minions in various industries
including medicine do their best to limit freedom, control
behaviors, and centralize power, there is hope. The hope lies in
those individuals and groups for whom freedom is an intellectual,
practical, and lived experience.
Issues Update: 108th and 109th Congress
Individuals with Disabilities Education Act (IDEA)
Reauthorization. In November 2004, Congress reauthorized
IDEA. The good news about the bill is that grants to screen
children "at risk for emotional and behavioral difficulties,"
which were in the Senate version, were stricken from the final
bill. This is especially good news given that government-funded
mental health screening programs are appearing in many different
pieces of legislation and as part of different government
agencies such as Center for Mental Health Services Programs,
which is part of the Substance Abuse and Mental Health Services
Administration in HHS.
Other good news within a bad bill that further entrenches
the federal government in education is that IDEA now protects
parents and special education students against coercion by
government schools to place children on certain psychiatric
medications specifically, those on the Controlled Substances
list such as Ritalin, Adderall, and Dexedrine. These are the
stimulant drugs used with increasing frequency to treat children
labeled as having Attention Deficit/Hyperactivity Disorder.
Contrary to public reports, however, this amendment to IDEA
does not cover any of the antidepressant medications that have
been the subject of FDA and congressional hearings and that are
now required to carry black-box warnings about the possibility of
causing suicidal thoughts and actions. The amendment also does
not cover the antipsychotic medications used to treat the growing
number of children who are now labeled bipolar.
In the 109th Congress, AAPS will be working with a coalition
of conservative, libertarian, liberal, and consumer groups to
find a champion in the House and Senate who will offer a bill to
deny federal funding to schools that force children to use any
psychoactive drug as a condition for attendance.
Mental Health Screening. The omnibus spending
bill that passed in December 2004 included $20 million of the
requested $44 million in grants to fund recommendations of the
New Freedom Commission on Mental Health. These include universal
mental health screening and treatment, and will probably lead to
more socially constructed diagnoses of mental problems and
expanded use of psychoactive drugs. An amendment authored by Rep.
Ron Paul, which would have required parental consent for
screening as a condition of funding, did not pass. Dr. Paul wrote
a letter signed by more than 20 Members urging the parental
consent language. House leaders, including Speaker Hastert,
Majority Leader DeLay, and Appropriations Subcommittee Chairman
Regula, accepted the Paul language. Sadly, that language
protecting the basic right of parental consent was dropped in the
Senate, despite strong support by Sen. Inhofe, who wrote a
personal letter to Sen. Frist asking him to include the Paul
Congressman Paul will be offering a bill requiring parental
consent for any universal mental health screening programs in the
109th Congress. AAPS will support Paul's bill and work to find a
Senator to introduce it in the Senate. AAPS will also work with
other groups including EdWatch, the National Coalition for Mental
Health Professionals and Consumers, Eagle Forum, the
International Center for the Study of Psychiatry and Psychology,
the American Policy Center, the Center for Cognitive Liberty and
Ethics, Free Congress, the Liberty Committee, Citizens for
Health, and other groups to oppose the idea of government funding
and mandates for the government-defined mental health of its
Prescription Drug Data Bases. HR 3015, the
National All Schedules Prescription Electronic Reporting Act
(NASPER) was offered in the 108th Congress. It would create a
whole new category of regulatory "crimes" for physicians or
pharmacists who fail to collect and submit enough data every time
they prescribe one of a very large number of commonly used drugs.
This would have a chilling effect on access to needed
prescriptions, and would increase medical costs. Guaranteed lack
of privacy would also chill patients' willingness to accept
needed care. The proposal would constitute federal regulation of
the practice of medicine, opening a window for federal police
scrutiny of a large fraction of physicians' prescriptions and of
The bill would authorize the use and disclosure of
identifiable health information for law enforcement purposes
without the patient's knowledge or consent, without probable
cause to believe a crime has been committed, and without
obtaining a search warrant.
The bill was supposed to pass easily, but according to
reports from the Hill, a public outcry prevented the bill from
coming to a vote. It will be reintroduced in the 109th Congress.
AAPS will be working with the Pain Relief Network, the American
Psychoanalytic Association, the National Taxpayers Union, the
Drug Policy Alliance, and other concerned groups to oppose these
National Intelligence Reform Act of 2004. In
December 2004, after little public debate, the Congress passed
and the President signed the bill. It is one of the most
comprehensive changes to intelligence agencies in recent history.
Most of the changes come from the 911 Commission's
Section 1027, entitled "Drivers Licenses and Personal
Identification Cards," was one of many problem areas for civil
liberties and federalism. Although it did not include the
trinational ID as originally proposed, or other similarly
dangerous provisions, the de facto national ID provision places
the federal government in charge of state-issued identification
systems. It calls for each identification card to accommodate a
digital photograph or other unique identifier. The "other" unique
identifier is not specified, leaving the door open for possible
future use of DNA or biometric identifiers. Also, there are no
restrictions on the use of RFID (radio frequency identifiers),
which are used for quick-pass toll roads. If incorporated, these
RFIDs could transmit personal information on the card to
government agents. That would enable an individual's movements to
be tracked without his awareness.
The conservative, libertarian, and liberal groups that
worked with AAPS to oppose the de facto national ID included the
American Conservative Union, Free Congress, Consumer Alert, the
American Civil Liberties Union, Eagle Forum, the American Library
Association, the American Policy Center, Americans for Tax
Reform, Gun Owners of America, the National Taxpayers Union, the
Republican Liberty Caucus, and the Privacy Rights Clearinghouse.
We will be working closely with the same groups in the 109th
Congress to repeal those provisions.
Michael D. Ostrolenk is a member of the AAPS government
affairs team in Washington, D.C.
Dr. Moffit's column will return next month.