Volume 68, no. 2 February 2012
Physicians are of course very familiar with the concept of accountability, which applies to everything they say or do, or don’t say or do. It’s a very popular word in legislation also: the “Health Insurance Portability and Accountability Act” (HIPAA), and “accountable care organizations” (ACOs) in ObamaCare. Here the concept involves endless accounting and reporting, and sometimes draconian penalties for minor discrepancies.
Two Americas
This catch phrase was made famous by former U.S. Senator and presidential candidate, Democrat John Edwards, in a speech before the 2004 Democratic National Convention. The “Occupy” movement pits “the 1%” (the “super-rich”) against “the 99%.” Doctors are generally assumed to be in “the 1%.”
The concept trickled down into the journal of the Pima County Medical Society, Sombrero, in an article by a past president and “single-payer” advocate Michael Hamant, M.D. He categorizes the “two Americas” as “the very rich and everybody else.”
“So yes, if you are fortunate enough to be in the top 1 percent, you need to pay slightly higher taxes to bring America to a prosperous economic future for all,” he writes. If not, he warns in a chilling evocation of the disastrous class warfare of the French Revolution, “the future looks a lot like Marie Antoinette’s 18th century France’s income distribution. The 99 percent need more than ‘let them eat cake’ as an economic model for success.”
[The infamous phrase was likely attributed to Marie Antoinette by radical agitators attempting to turn the populace against her. Jean Jacques Rousseau had used it, quoting a “great princess,” in 1766 when the ill-fated queen was 10 years old.]
Hamant was responding to George Makol, M.D., who wrote of two types of Americans: “those who work for a living and those who vote for a living.”
Viewed from a bicycle on a 3,550 mile ride, rural America is blighted and impoverished. The hard-working, self-reliant, mostly older people there seem disconnected from the aristocratic ruling class in Washington, D.C., and its dependents in the cities, writes Stephen Jones, volunteer special projects director for Physicians for Civil Defense (http://firstresponderride.blogspot.com and http://tinyurl.com/76d43w3).
Perhaps the most dangerous division in America is between those who are apparently above the law, and the rest of us—those who are held accountable, and those who are not. As Angelo Codevilla explained it, it’s the “Ruling Party” vs. the “Country Party” (see AAPS News, September and November 2011). The American dream—and the essence of one America—is not home ownership or income equality but equality under the law.
More Equal Than Others
Problems start at the top with the chief federal law enforcement official, the Attorney General of the United States. In AAPS v. Clinton, Judge Royce Lamberth referred the apparent perjury by Ira Magaziner, in attempting to mislead the Court about the constitution of the Health Care Task Force, for criminal prosecution. Then-U.S. attorney Eric Holder declined to prosecute, citing “massive confusion” in the “fluid lexicon” of membership, and difficulties occasioned by the death of Vincent Foster and conviction of Webster Hubbell (http://aapsonline.org/judicial/friends.htm). Now, Attorney General Holder refuses to take action against individuals responsible for Fast and Furious.
“Who’s going to be held accountable?” asks Arizona sheriff Paul Babeu, for more than 200 murders committed with weapons illegally conveyed by U.S. agents to violent criminals in Mexican drug cartels (http://tinyurl.com/7xo7l9x).
When the Government Accountability Office (GAO) reported that Medicare customer service representatives provided wrong information to physicians 96% of the time (http://jpands.org/vol9no4/huntoon.pdf), Herb Kuhn of CMS replied that they actually provided correct information in 95%—of other types of calls, and the AMA apologized for an editorial quoting the GAO study in case it was “unclear” (AM News, Nov 24/29, 2004).
There is clearly a double standard for hospital administrators and physicians, writes Lawrence Huntoon, M.D., Ph.D. When accused of “disruptive conduct” such as a six-month turf battle with a department head, a CEO may be sent off with a generous severance package, often at taxpayer expense, usually to work at another hospital (Buffalo News 12/4/11). A physician’s career may be ended through sham peer review—as in a case in which the hospital CEO even admitted to changing the word “uncomfortable” to “incompetent” on a specialist surgeon’s request not to take call for gunshot wounds.
The conviction of former Sen. Ted Stevens was dismissed when a special prosecutor found that the case was “permeated” by prosecutorial misconduct such as concealment of exculpatory evidence. No criminal charges will be filed against the U.S. attorneys, who will continue to practice at the Dept. of Justice (Buffalo News 11/22/11). “No wonder federal cases have a conviction rate over 90%,” writes Dr. Huntoon. “They don’t play by the rules.”
Where Is Organized Medicine?
On the unequal accountability question, the AMA’s Federation is largely AWOL, and silent on the “Occupy” movement. But the American Medical Student Assn (AMSA) has its logo on a clenched fist with stethoscope, proclaiming it’s “for the 99%.”
Medical Students in Solidarity with “the 99%”
The home page of the American Medical Students Association (http://www.amsa.org) states that “we must refocus our priorities away from the 1% of the population that holds almost a quarter of our nation’s wealth and instead emphasize providing fair and equitable resources for the rest of us—…healthcare, education, access to food, housing, or…other…fundamental rights….”
AMSA, which claims 30,000 members, was founded in 1950 as the Student American Medical Association, but cut ties to the AMA in 1967. The AMA still collaborates with AMSA.
About “the 1%”
The top 1% pay more than one-third of all income taxes, and the top 10% pay more than three-fourths. More than half of all households pay no income tax, and 30% actually make money from the system thanks to the earned-income tax credit. The U.S. has the most progressive tax system among developed countries (John Goodman, http://tinyurl.com/6ozua57).
The Occupy movement got a boost from a Congressional Budget Office report that “the share of income received by the top 1% grew from 8% in 1979 to over 17% in 2007.” Not mentioned is that this fell to 11% in 2009 (WSJ 12/6/11).
Throughout the world, the bottom 10% of the income distribution gets about the same share of national income (2.5% in countries with the least economic freedom, 2.6% in those with the most). But in capitalist countries the bottom 10% gets 10 times more income than in non-capitalist ones ($8,474 per capita per year vs. $910) (http://tinyurl.com/3stgdxe).
Would “slightly higher taxes” from the 1% make us all prosperous? Craig Cantoni calculates that federal indebtedness and liabilities could be paid off by confiscating all corporate profits (average 6% of sales) for 11.5 years ($76 trillion/$6.6 trillion per year). “Of course corporations would go out of business and there would be mass starvation long before that.”
Siobhan Reynolds (1961-2011), R.I.P.
Siobhan Reynolds was killed in a small plane crash on Christmas Eve. Through efforts to help her husband find pain relief, she learned of the pain, frustration, and stigma that patients suffer in consequence of the intimidation of doctors. Her husband’s physician, William Hurwitz, M.D., was imprisoned. Reynolds established the Pain Relief Network (PRN), and she came to the assistance of a number of doctors who had been targeted for prosecution as drug dealers. Her effort to counter the damning publicity surrounding the prosecution of Dr. Stephen Schneider and his wife in Wichita, Kansas, led their prosecutor to initiate a grand jury investigation of Reynolds for alleged obstruction of justice. When she refused to comply with a grand jury subpoena that demanded the records of all of PRN’s and her personal communications, the court imposed daily fines that destroyed PRN. First Amendment protections of free speech and association were not operative, and the secrecy of grand jury proceedings designed to protect those investigated was exploited to keep secret all proceedings related to her appeal of the subpoena, which the Supreme Court declined to review. Her commitment never wavered.
Assuring Accountability
Learning from the income tax system, Dartmouth academics propose withholding 6% from all Medicare payments, and giving “refunds” if cost growth is restrained within a region. They cite a 1980s German program linking higher physician payment to lower cost growth. This mechanism should spur the development of regional “multi-stakeholder collaboratives” (JAMA 1/4/12).
Cost control requires “redesign of care delivery,” and effecting this transformation is the responsibility of physicians, writes Ezekiel Emanuel, M.D., Ph.D. They need to develop bundled payments and revisions to ACO regulations (JAMA 1/4/12).
Is the AMA’s CPT Destroying Medicine?
“The greatest cost of CPT…isn’t the…billions of dollars spent on unnecessary overhead,” writes Daniel Palestrant, M.D., founder of SERMO (http://par8o.com). By claiming the Current Procedural Terminology codes as its own, the AMA makes transparency and side-by-side comparisons, so essential to a pareto-efficient system, impossible.”
Physicians should have learned from Wall Street, he writes. The New York Stock Exchange claimed to own the ticker symbols, in a blatant attempt to block alternate trading platforms. The NYSE’s exclusive ownership was overturned, so it is possible to trade stocks for less than $20, owing to competition.
Palestrant says that U.S. medicine is so expensive because too many people separate patients from physicians. Bureaucrats and bottom lines determine which patients “qualify” for services.
Pareto (or Hippocrates) vs. Marx
Pareto efficiency or optimality exists when one person’s situation cannot be improved without making another’s worse. It can be achieved by free-market economics and “do no harm” ethics. It does not imply equality or “fairness,” the desired endpoint of the New Ethics. The updated ethics manual of the American College of Physicians states that physicians have a “duty to society” and a responsibility to “use health care resources responsibly.” Doctors must make judgments about “appropriate” care and refuse to provide “nonbeneficial” care—in the name of stewardship—even if patients pay out of pocket (JAMA 1/11/12). The dilemma arises from—third party payment. Collective payment means collective responsibility for denying payment.
AAPS Calendar
Jan 20-21. Workshop, board meeting, Las Vegas, NV.
Feb 20 (tentative). Dinner meeting, Orlando, FL.
Feb 24 (tentative). Dinner meeting, New Orleans, LA.
May 18-19, 2012. Workshop, board meeting, near Newark, NJ.
Oct 4-6. 69th annual meeting, San Diego, CA.
ACTION OF THE MONTH
Follow AAPS on http://twitter.com/aapsonline and on http://www.facebook.com/patientpower. Be sure to click “follow” and “like.” Join in the lively discussions. Share.
ACOs Exempt from Fraud Laws
The Medicare Shared Savings Program (MSSP) is the cornerstone of the Patient Protection and Affordable Care Act (PPACA or ObamaCare), but its goals conflict with many fraud and abuse laws. Thus, to facilitate the formation of Accountable Care Organizations (ACOs), Congress has authorized waiving any laws that would be impediments, including the Anti-Kickback Statute, the Stark law, and provisions of the Civil Monetary Penalties Law that prohibit gainsharing or beneficiary inducements. Most ACOs will be covered by the blanket participation waiver.
CMS is, however, declining to codify the waivers. They are not validly promulgated regulations, but constitute agency guidance, which lacks the force of law and thus fails to provide full legal protection to ACOs that are investing large sums in structuring a vast array of novel arrangements.
ACOs must have stringent compliance plans, and will be monitored to watch for avoidance of high-risk patients, inappropriate cost shifting, or failure to adhere to quality standards ( BNA’s Health Care Fraud Report, Nov 2, 16, and 30, 2011).
HIPAA Enforcement
According to the law firm Snell and Wilmer, the Office of Civil Rights has received more than 64,000 privacy-related complaints since 2003, with the number increasing each year. Civil monetary penalties were assessed in seven cases, ranging from $35,000 to $4.3 million. In 2011, criminal convictions were obtained in 16 out of 16 cases. Under breach notification provisions enacted in the HITECH Act, covered entities have been required to notify 5.4 million individuals of large-scale breaches involving more than 500 people. One breach alone, involving the theft of back-up tapes, involved 1.9 million notices.
The largest penalty was paid by Cignet Health for not providing 41 patients with a requested copy of their medical records within 30 days. Of the $4.3 million, $3 million was for failure to cooperate with HHS in its investigations.
OCR will be selecting 150 entities of various sizes for audits that could take up to 10 days.
A presentation on HITECH and changes in HIPAA by attorney Cabel Knight of the Appalachian Institute of Digital Evidence is available at http://tinyurl.com/7sry8tw.
Meanwhile, HHS will be sharing data from 860,000 identifiable Medicare patients with ACOs, unless patients opt out within 30 days of being notified of plans to share their private records (CNSNews.com 12/20/11).
The government is exempting itself from provisions of the Privacy Act that mandate notifying a physician if his information is being requested from the National Practitioner Data Bank for purposes of an investigation (MSSNY News of NY, January 2012).
No Judicial Appeal
The Texas Advance Directives Act bars substantive judicial appeal of conflicts between physicians and patients or surrogate decision makers. This means that physicians and hospitals can unilaterally withdraw life-sustaining treatment when they believe efforts to extend life are “inappropriate.” Some state medical associations have considered supporting such laws (JAMA 1/11/12).
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AAPS Fights for Mens Rea Requirement
AAPS filed an amicus brief in the U.S. Supreme Court supporting a petition for writ of certiorari by Dr. Perry Reese, who was sentenced to 20 years in prison on drug-dealing charges. The disproportionate severity of the sentence was based on an unprecedented application of the Racketeer Influenced and Corrupt Organizations (RICO) Act against a small-town medical practice. Dr. Reese was not a high-volume prescriber, and no patients were demonstrably injured by his prescriptions. For similar behavior, other physicians have only had their DEA registrations revoked.
In Dr. Reese’s case, the U.S. Court of Appeals for the Fourth Circuit simply eliminated the requirement to prove a mens rea or criminal intent. Conviction was based primarily on testimony by a government witness who disapproved of Dr. Reese’s practice.
“Criminalizing the good faith practice of medicine is an issue of national significance, for patients and physicians alike,” writes AAPS General Counsel Andrew Schlafly. The Fourth Circuit criminalized acts that are “outside the usual course of professional practice.” This means that “unconventional or innovative medicine becomes criminal under this novel…standard.”
The entire brief is posted at http://www.aapsonline.org/judicial/reese-12-29-2011.pdf.
Severance Is Judicial Lawmaking
In an amicus brief in the U.S. Supreme court in the challenge to PPACA by Florida and others, AAPS argues that severance of the individual mandate amounts to a judicial line-item veto and violates the Bicameral and Presentment Clauses of the U.S. Constitution. The Act must therefore be declared unconstitutional in its entirety.
In the absence of a severability clause, “severance provides Congress with less than ‘ALL’ legislative power,” states AAPS. “Current severability doctrine allows Congress to wantonly avoid accountability.” In a constitutional republic, Congress must be accountable to the electorate. “Congress must be prevented from escaping and deflecting its constitutionally assigned duty to make our nation’s hard policy choices through legislation.”
“When a court reconstructs a statute, it cannot be said to have been enacted by democratically elected officials.”
The brief is posted at http://tinyurl.com/72turqb.
HHS Rule Disenfranchises Medical Staff
A rule changing hospitals’ conditions of Medicare and Medicaid participation appears to be part of the trade deal hospitals made to support ObamaCare, suggests Dr. Lawrence Huntoon. Multi-hospital systems will have the option of a single governing body, allowing hospitals to circumvent local medical staff bylaws.
“This will enable hospital chains to conduct sham peer reviews in a ‘much more efficient manner’ with even less due process than physicians may now have at individual hospitals.”
The rule states that it would “allow hospitals to substitute and rearrange actual delivery of care” as by using nonphysician practitioners who earn $71/hr less than physicians. This could “provide immediate savings to hospitals” (RIN 0938-AQ89).
Lessening medical staff self-governance is essential to ACOs, Dr. Huntoon writes, as hospitals control bundled payments.
Correspondence
Why Abuse Will Continue. One reason Congress treats physicians so shabbily is that it knows it can devalue physicians and most physicians will take it. Congress laughs at the pathetic parade of physicians who make the annual journey to Washington, tin cup in hand, begging for a few more pennies. Despite the complaints, 90% to 98% of physicians continue to “participate” in Medicare. This invites more abuse. I understand that opting out is more difficult for some specialties than others. But even emergency physicians and trauma surgeons could opt out to make a firm statement that they aren’t going to take it any more. They could even continue to submit claims in urgent or emergent situations (perhaps most of their cases). But there is no painless way out of this mess. Staying in Medicare, hoping that the government will repent and start treating physicians better is magical thinking.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
How Medical Costs Are Different. The expected spending for medical care is infinite. That is, humans have one priority that outweighs all others—survival. And survival in later years can be achieved only at increased cost. Housing does not have an infinite cost—there is a basic need for shelter, which can be met inexpensively. Food does not have an infinite cost—there is a maximum food intake for any one individual. Survival, on the other hand, not only can cost as much as one is willing to spend, but we want to spend as much as possible so as to live as long as possible in as healthy a manner as possible. If I have $1,000 to spend, and I can choose to spend $500 on my house and $500 on my food, but I’m dead, that was poor planning. I’d much rather spend $1,000 on medical care and live in a shelter eating table scraps.
Stuart Gitlow, M.D., Woonsocket, RI
Do People Need Medicaid? At Parkland Memorial Hospital in Dallas, Medicaid and uninsured patients get the same care. Patients have no reason to fill out the lengthy forms and answer the intrusive questions that enrollment may require. Medicaid enrollment, however, is important to hospital administrators because it affects how much they get paid. Thus, paid staffers at Parkland and at Children’s Medical Center next door make heroic efforts to sign patients up for public programs, starting in the emergency room. Yet apparently they still fail more than half the time.
After we spend $1 trillion on ObamaCare, there is no convincing reason to believe that the bottom half of the income distribution will be any better off than they are now. In fact, if you want an appointment, it might be better to say you are uninsured.
John Goodman, Ph.D., Dallas, TX
Barriers to Care. Advocates for the poor often assert that any cost-sharing is a barrier to care. Yet rationing by waiting is common in Medicaid. A South Carolina study showed that tripling the number of pharmacy visits required to obtain medication led to a much greater reduction in use of needed drugs than tripling the copayment from $1 to $3. This study illustrates that inconvenience is a bigger barrier than money. It should not be surprising that Medicaid recipients also value their time.
Devon Herrick, Ph.D., National Center for Policy Analysis
A Continuing Crisis. The discovery of The Uninsured was a breakthrough—an issue keep all health policy wonks employed for a very long time. It is an issue that can never be solved. It can be turned into a crisis every time the Census Bureau comes out with new figures. As a percentage of the population, the problem has been about as stable as it could be. From 1987 through 2010, the ratio of the insured to the uninsured has stayed around 85:15 through boom times and recessions, despite massive efforts by government to expand Medicaid, reform the insurance market, develop (and abandon) all kinds of “universal healthcare” programs, and grow new federal programs such as SCHIP.
Greg Scandlen, Hagerstown, MD
An ACO “Success”? An ObamaCare-like model in Florida (“provider service networks” or PSNs) is prematurely deemed a success for Florida Medicaid. One thing in Florida that is different from the public response to draconian HMO rationing in the 1990s is that public complaints will not be heard because the government is now in collusion with managed-care companies to save money no matter the cost to the patients or how much they complain. The “patient satisfaction surveys” of 90% are useless when more than 90% of any medical population is healthy and does not test the medical system. Managed care makes ends meet by caring for the many well and queuing the few sick. The frenzy to create
ACOs across the country is well underway for the private sector. One can bet it will be promoted everywhere for Medicaid because so “successful” in Florida.
Robert W. Geist, M.D., St. Paul, MN
Government Did It. In the 1800s, British and U.S. governments wanted banks to lend more so governments could spend more. So government ended unlimited liability, under which bank owners were fully responsible for bad loans, and changed tax policy to treat debt financing more favorably than equity financing. In response, banks shifted from owner equity to bonds to grow capital and grew less concerned about making highly leveraged loans.
Craig Cantoni, Scottsdale, AZ
