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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
Omnia pro aegroto

Volume 63, No. 11 November 2007


Proudly referring to her scars from 1993, Hillary Clinton has put forth her reform proposal, and has clearly learned from her mistakes, writes Laura Meckler (Wall St J 9/15- 16/07).

One important lesson is not to provide all the details in a 1,342-page bill. That "gave opponents with special interests easy fodder to kill the plan," while the public was "bewildered." This time, people won't know the specifics until after the bill is in force. Above all, she won't make the mistake of appointing a Task Force that gets into a "vortex of publicity." Better to do things entirely behind closed doors, writes Paul Starr, who chaired three cluster groups on the Clinton Task Force (American Prospect 9/14/07).

It Wasn't Really Her Fault

Starr doesn't think Hillary deserves the blame for the failure of ClintonCare 1.0. It was Bill Clinton's plan, already formed at the outset. Advisors, Starr writes, are supposed to take the blame when things go wrong, but Bill Clinton's appointment of his wife to chair the Task Force did not "create the necessary distance and deniability." It has come back to haunt her. Hardly fair: her American Health Choices Plan is different, "a new chapter in the struggle for health care reform," and it's "100 percent my plan" (American Prospect 9/24/07).

The Method, the Choices, the Promises

Clinton version 2.0 is basically "communitarian," writes New York Times columnist David Brooks. It relies on a "magic circle" of "partnerships," involving individuals, government, doctors, hospitals, and patients, all "coming together around a big table to reach a consensus" instead of technocratic engineers. In interviewing Clinton, Brooks found her answers to be "just chunks of her stump speeches." But he thought he "detected real warmth when she described the way she and her staff came up with the plan" (Ariz Daily Star 9/19/07).

It's like a loya jirga, Brooks writes a grand assembly of Asian tribal chiefs, with endless meetings.

Choices are supposed to include your present plan, if you like it and if it still exists under the new regulations, including loss/ratio minimums, and it's not one of those consumer-driven plans in which people are "twice as likely to delay or avoid needed care due to costs." Alternately, you can have one of the offerings of the Federal Employee Health Benefit Program (FEHBP), or "a public plan similar to Medicare."

Clinton promises no new bureaucracy. Presumably the Office of Personnel Management (OPM) will just expand from covering 9 million federal employees to any of the other 291 million Americans who might be interested in the FEHBP. And CMS would expand also, though a public plan that would have to "cover the same benefits as guaranteed in private health plan options in [FEHBP]" would not be at all like Medicare.

ClintonCare 1.0 proposed caps on premiums and a system under which insurers had to bid for regional business. The new plan is said to be less threatening to the insurance industry. There would be no premium caps but guaranteed issue and modified community rating would be required: Insurers would have to sell to everybody who applied. In New York and New Jersey, these ideas led to enormous premium increases. No problem: everybody would be required to buy insurance anyway. People judged sufficiently needy would be subsidized through tax credits. There would be some as-yet-unspecified limit on what percentage of their income people would have to spend for health insurance. But spend it they must.

Giant companies with retiree legacy costs would get a tax credit, but only if they demonstrate they are employing "best practices." Employers with fewer than 25 employees would get a tax credit up to 50% of premiums, but only if they were not "boutique high-income firms." "But there will be `no new bureaucracy' to make these determinations?" Greg Scandlen asks (Consumer Power Report #96, 9/19/07).

Clinton estimates a mere $110 billion/yr in extra costs, obtained by eliminating tax cuts for the rich. Her 7-step cost- reduction strategy includes a Groundbreaking National Prevention Initiative extending into schools, workplaces, supermarkets, and communities. A new prevention workforce using pharmacists, church leaders, and others would ensure "100 percent use of cost- effective prevention."

Additionally, Clinton would force all providers participating in federal programs to use interoperable health information technology; create a new [nonbureaucratic] Best Practices Institute to keep physicians and patients from "being bombarded with information"; and coordinate chronic care including lifestyle management. For example, doubling obesity accounts for 30% of cost increases; returning obesity among the elderly to the 1980s level could save $1 trillion over 25 years, she claims (www.hillaryclinton.com/feature/healthcare).

The Individual Mandate: Key to Universal Coverage

It is impossible to achieve universal coverage without an individual mandate, stated one of Sen. Clinton's top aides. The idea is gaining support across the political spectrum (Laura Meckler, Wall St J 9/17/07). How else can enough money be extracted from the healthy? It's the new equivalent to universal military conscription in 1793. Buying insurance and attending to wellness is part of a new social compact, a way to restore civic concern and social connectedness (Bloche MG, N Engl J Med 2007;357:1173-1175).

"Individual mandates are truly evil and must be resisted," writes Linda Gorman of Independence Institute. The are "an enormous surrender of power to an unaccountable government.... There is no way to claw the power back."

Did ClintonCare 1.0 Really Fail?

Hillary's reputation for error is "a shame, really, because if there were any justice, she'd have the best one-liner on health care of any candidate out there: `I was right the first time.'" writes Jonathan Cohn (New Republic 6/04/07).

"Just about every reformer has borrowed elements of the old Clinton health plan," he states.

In fact, as chronicled in AAPS News, much of ClintonCare has already been enacted on the installment plan starting with the criminalization of medicine. Grace-Marie Turner presents a side-by-side comparison of the Clinton Health Security Act and the Health Insurance Portability and Accountability Act (HIPAA) (Cato J, spring/summer 2002).

The State Health Insurance for Children Program (SCHIP) now up for renewal, derives from Kids First. Clinton's Option 3, according to a preliminary staff working paper, "phases in universal coverage, minimizes the financial burden of the program at the outset, and covers the most vulnerable of our citizens children as quickly as possible." The program was designed to be freestanding but capable of being easily folded into future program structures.


From the Clinton Archives

From an unsolicited paper given to a Task Force member by Lawrence Harkness, President and CEO of Children's Medical Center in Dayton, OH, entitled "Health Care Reform and the Realignment of Incentives":

Societal ills must be controlled. The American people must become more financially accountable for their own health through prevention, cost sharing and the end of self-indulgence. Health care expenses as a direct result of preventable "social ills" such as smoking, obesity, teen pregnancy, sexually transmitted diseases and trauma resultant from not wearing seat belts are inexcusable.

Searchable files of documents obtained as a result of AAPS v. Clinton are available on CD from AAPS.


How Obesity Became an Epidemic

Over the past 20 years, the average American weight gain has been 8 12 lbs. The causal links to morbidity and mortality are unclear, but the CDC and the Harvard School of Public Health went on the offensive in response to an article (Flegal KM, et al. JAMA 2005;293:1861-1867) that radically reduced the estimated number of deaths caused by obesity.

J. Eric Oliver of the University of Chicago Dept. of Political Science notes a general trend toward the "diseasing of America." As polio, tuberculosis, and typhoid virtually disappeared or became rare, public health services needed new problems to justify their existence. Chronic disease prevention and management is their new mission. Any physical symptom or correlate of a health problem can become a disease.

The most active groups in getting obesity classified as an epidemic, he writes, are funded by weight-loss companies that want third-party funding for their products or procedures. An epidemic is "only way to rationalize the cosmetic use of diet drugs" (Perspect Biol Med 2006;49:611-627).


"We're going to take things away from you on behalf of the common good." --Hillary Clinton at Boxer fundraiser, 6/29/04


Costs Down, Wellness Up in CDHP

The 2007 increase in the cost of employee health benefits, an average 5.3%, down from 7.9% in 2006, was the smallest in 9 years (Wall St J 9/24/07). You might have missed the good news, notes Grace-Marie Turner, as major newspapers emphasize that the increase in health insurance premiums continues to outpace wages and inflation.

More than 20% of employers offer, or plan to offer, a high- deductible health plan (HDHP) with a tax-advantaged Health Savings Account (HSA) by the end of this year, and almost half are considering it for a future date.

The average annual premium for the non-HDHP is $12,183 for families and $4,514 for singles. The average HDHP premium plus employer HSA contribution is $10,380 for families and $4,254 for singles, according to a Kaiser Family Foundation survey (Consumer Power Report 95, 9/13/07).

Employment-based coverage is generally much more expensive than an individual policy. For 2006, eHealthInsurance reports an average annual individual premium of $1,776 for self-owned v. $4,479 for employment-based coverage, and an average family premium of $4,128 vs. $12,106, respectively (Health Policy Matters 9/13/07).

Enrollees in consumer-directed health plans (CDHPs) are much more likely to participate in wellness programs, according to Blue Cross Blue Shield Association (BCBSA). Participation in smoking cessation is 20% by HSA holders and 6% by those with non- CDHPs. For stress management, figures are 22% v. 8%; for nutrition programs, 27% v. 12%; and exercise programs, 29% v. 12%. HSA enrollees were much more likely to research health information, to track costs, and to plan for future expenditures, but no more likely to forgo care because of cost (Consumer Power Report 98, 10/2/07).


From a Canadian, on Their Great Medical Plan

My 80-year-old mother can't get treatment for a blockage in her leg, despite all the years she paid into the system, because she smokes. Now there is talk that they won't treat obese people either. What we want in Canada is a health system for healthy people only; that should reduce our health care costs. Immigrants are covered immediately without paying any premiums (my wife and I pay $96/mon plus taxes we're in the 55% bracket). We give free needles to drug users to try to keep them healthy; diabetics have to buy their own.

We have a health diagnosis system, not a health care system. You can quickly get to see a doctor so he can tell you that you are sick, and put you on a waiting list. The government keeps adding money, but the lists do not get shorter.

Where else in the world can you spend your money on things that could kill you, but you're not allowed to spend it on things that could make you healthy, because that would be queue-jumping? You have to wait your turn unless you are a hockey player. --from Dr. Dennis Bonnette


Surrogate NPIs

The one-year grace period announced by CMS after the May 23 deadline for obtaining a National Provider Identifier was necessitated because facilities such as labs or consultant physicians could not get paid if the referring physician did not supply his NPI (NSMA Medicare-HIPAA Page 4/4/07).

Information on Health Insurance Claim Form HCFA-1500, section 2010.2, states in item 17A: "When the ordering/referring physician has not been assigned an NPI and does not meet the criteria for using one of the other surrogate NPIs, the biller may use the surrogate NPI `OTH00000' until an individual NPI is assigned."

Insurance companies may pay significantly less for services rendered to self-referred patients. Some other suggested actions for specialists who do not wish to obtain an NPI: get clearing- houses to assign dummy codes or other unique identifiers to physicians not required to have an NPI; use the primary doctor's NPI; or have the patient pay the consultant directly.


Tyranny at Texas Medical Board

The TMB is under attack for numerous abuses, including the use of anonymous complaints by insurers trying to destroy physicians who dare to challenge their coverage policies. Other objectionable practices include: use of anonymous "expert" witnesses; Star Chamber secret hearings; prohibition of note- taking or recordings during hearings; denial of due process to physicians; intimidation tactics; forced settlements; and conflicts of interest of the TMB members.

Dr. Keith Miller resigned abruptly under intense scrutiny of his work as an expert witness against physicians and his position on the Blue Cross Blue Shield Advisory Committee that looks for ways to cut costs by limiting evaluation and treatment of patients. This work was brought to light by Shirley Pigott, M.D. Additionally, Dr. Miller has continued to employ a nurse practitioner accused of stealing and forging triplicate prescription forms in order to obtain controlled drugs for her own use.

The TMB's response to an editorial by Steven Hotze, M.D., and a rebuttal by AAPS, is posted in the AAPS Hall of Shame at www.aapsonline. org.

Legislative hearings are being sought.


Indentured Servitude in Texas

Doctors who wish to have their application for a Texas medical license expedited must sign a contract agreeing to take Medicare and Medicaid patients for 5 years: "During this time I agree to accept any Medicare and Medicaid patient as my patient. I understand that my acceptance of this agreement will be noted on the Board's web site and may also be reflected in my Public Physician Profile. I also understand that my failure to comply with this agreement shall constitute unprofessional or dishonorable conduct that is likely to deceive or defraud the public or injure the public and may result in disciplinary action" (www.tmb.state.tx.us).


GMC Tells UK Doctors How to Commit Fraud

The General Medical Council (GMC), which has the statutory power to de-list a medical practitioner for unfitness to practice, poses the question of whether it is acceptable for GPs to remove some children from their lists, temporarily, for purposes of calculating the measles-mumps-rubella (MMR) vaccine target payment. Doctors who meet the target can claim bonus payments from the NHS but parents sometimes refuse vaccines, especially MMR. Apparently it is allowable, though not advised or suggested, to remove the children from the roster as long as parents give consent and they can be re-registered for "immediate necessary treatment."


Most Frivolous Medical Malpractice Lawsuit

A cardiologist was sued by a patient who ultimately developed a melanoma. Although his consultation had nothing to do with the skin, the cardiologist's note was the only legible one in the medical record.

An obstetrician was sued for "causing infertility" in a patient who had miscarried. Two months after the case was filed, the plaintiff became pregnant naturally, but did not drop the lawsuit.

If you'd like to enter the competition for the most frivolous case (your own or a colleague's), write to [email protected] medicaljustice.com) before Oct 31. First prize is a year's free membership in Medical Justice.


Tax Treatment of False Claims Act Settlements

Payments made to compensate the government are tax deductible, even if labeled a fine or penalty. However, payments intended to be punitive must be paid with after-tax dollars. The burden of proof of deductibility is on the taxpayer. In settlement negotiations, take care to document the nature of any payments made as restitution (BNA's HCFR 9/26/07).


Final Stark III Rule

Physicians now need to consult all three parts of the Stark rule, and "it's not a regulatory scheme for the faint-hearted." The burden of proof is now on billing entities in cases in which Medicare claims are denied because of alleged prohibited referrals. The AMA stated that this provision could give CMS contractors increased incentives to deny claims.

"Although there are not widespread claims denials for Stark violations, this change offends all notions of due process," writes the AMA. "In addition, it makes it easier for the government to pursue claims against physicians who have far fewer resources" (BNA's HCFR 9/12/07).

The Rule is available at www.cms.hhs.gov/Physician SelfReferral/Downloads/CMS-1810-F.pdf).


Termination of Patients for Non-Payment

Take care to find out your state's privacy laws regarding a patient's financial history if you discharge a patient for nonpayment. Disclosing information about nonpayment to future physicians risks lawsuits for defamation, interference in a future patient-doctor relationship, disparagement, and violation of privacy. A line such as "divorced for nonpayment" in a medical record could violate the HIPAA minimum-neces-sary rule. Attorney Robert Borsody recommends keeping medical and financial records separate. Turning the patient over to a collection agency may be the best course of action: The nonpayment goes on the patient's credit report, which is available for future physicians to examine (MCA 9/17/07).


HIPAA Favors Plaintiffs' Lawyers. Two cases currently on appeal in New York examine the way in which HIPAA has tilted the playing field further in favor of plaintiffs and their lawyers (Kish v. Graham and Arons v. Jutkowitz). Fundamental fairness requires that all parties in litigation have equal access to relevant evidence, including information held by non-party treating physicians. A patient who files a malpractice suit necessarily waives the patient-doctor privilege with respect to issues affirmatively raised by the plaintiff. Prior to the HIPAA Privacy Rule, defense attorneys routinely conducted post discovery interviews of non-party treating physicians to see what they had to say without incurring the expense of a deposition. However, physicians are now refusing to accept "Speaking Authorizations" that are not "HIPAA compliant." Moreover, if a physician did speak with a defense attorney without patient authorization, his testimony might be thrown out because he had violated federal law.

In these two cases, courts have refused to compel plaintiffs to provide HIPAA-compliant authorizations. Defense counsel must proceed blind, while plaintiffs' attorneys continue to have unfettered access to conduct informal interviews. If the cases are not overturned, precedent is set in New York State that unequal access to evidence in favor of plaintiffs is the law, and defendants are at a severe disadvantage. (New Jersey still allows post note of issue ex parte interviews).
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


A Miscalculation? Outrageous premiums for individual health insurance in New Jersey are not an unintended consequence. The Left deliberately got community rating enacted so that escalating premiums could be cited as an example of insurance companies ripping off the consumer. Conclusion? Only government can be trusted to do things right. Free-enterprise opponents are not stupid. They are deliberate, purposeful, and very patient. I wish I could say the same for our side.
Greg Scandlen, Consumers for Health Care Choices


Huge Pools Not the Answer. Many states are considering the ill-conceived concept that pooling can solve a multitude of problems. Widespread acceptance of this myth will only increase the problems of private insurance. Pooling helps to reduce random variation, but it does not in any way help nonrandom variation. Massachusetts, for example, hopes to benefit from pooling the individual and small-group markets. Instead, the rampant adverse selection in the individual market will harm the small-group market while bringing only a small and short-lived benefit to the individual market.
Mark Litow, Brookfield, WI


Insurance is the Problem, Not the Solution. In my youth, 150 million Americans (90% of the population) were uninsured. The insurance that existed was for hospital care only. We felt secure and well cared for. We bought excellent, affordable care in the free market. My dad was a civil engineer and my mother a grade-school teacher. Americans are now vastly overinsured. Insurance, both private and governmental, sucks out 30-40% of the medical dollar, and disconnects patients from the cost of frivolous care. Insurance is for unexpected catastrophes, not for routine primary care, which can be had for about $100 per month if paid for directly in a practice like mine.
Thomas R. LaGrelius, M.D., Torrance, CA


What about Legal Errors? There are far worse legal and political errors than medical errors. The legal errors are enshrined as "precedent." Few recognize the huge egregious errors of politicians, "leaders," the state. Medical errors are corrected to the extent that they are correctable. Did anyone ever hear of a "Morbidity and Mortality Court Report"?
Tamzin Rosenwasser, M.D., Lafayette, IN


Cost of Government Care. A director of business development for a Colorado hospital told me that the cost of uncompensated care generated by government was $45 million in 2005, compared to $25 million for charity care. I don't know whether these were real costs, fake costs, or Martian costs, but they're what they use for public consumption. He stated that in rate setting the hospital just takes the uncompensated care dollars, divides by the private payer base, and uses that number to calculate an increment to add to next year's charges. Thus, it is clear that the focus on the uninsured overlooks a much bigger problem: Government isn't paying for the medical care it is currently supposed to cover, and may be driving a huge chunk of the above-inflation cost increases. If this is so, the drive to expand Medicaid and SCHIP to cover the uninsured will increase the amount of uncompensated care, the cost of private care, private premiums, and the number of uninsured. In the end we will reach the old group-hug consen-sus that government must rescue everyone, taxing without limit the upper half of the income distribution to do so.
Linda Gorman, Independence Institute, Golden, CO


Shifting Definitions. The charity care tab is used as an excuse to impose universal insurance which will require half a billion dollars in new taxes. Let's see, people pay higher premiums/ costs to fund charity care. So the solution is to make everybody buy coverage, and when some can't afford it, the same people now paying for the charity care will have to pay the insurance premiums instead. Problem solved!
Joseph Lee Pugh, Diamondhead, MS