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 11/16/04).

"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 1/5/05).

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 (ibid.).

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 sought.

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 (Sombrero 12/04).

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 questions.

"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 [ www.azmedassn.org/articles/going_bare.htm].

AAPS Calendar

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 nullifier radar."

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 duty."

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 stay home.

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.]

Correspondence

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 ideological battlegrounds?
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 unlimited.
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 available.
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 Alert

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 the government.

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 opportunities.

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 language.

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 citizens.

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 their recordkeeping.

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 antiprivacy bills.

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 recommendations.

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.