Volume 73, no. 5 May 2017
Affordable Care Act (ACA) supporter at the Medical Academic Center in Carmel, Indiana, the moderator posed a frequently asked question: “Have you found any common ground?”
The same question might be asked of the Republicans’ Freedom Caucus and “moderate” Tuesday Group in the sparring over the narrowly passed American Health Care Act (AHCA). Like ACA, the bill got zero votes from the now-minority party.
Speaking for AAPS, executive director Jane Orient, M.D., said there was no common ground between a person who wished to be free and the person who wanted to take his freedom away. But she was glad that David Orentlicher, M.D., J.D, former Ethics and Health Policy Counsel for the AMA, appeared to be open to a wedge of freedom. He said he believes in free markets “to some extent”—with the proper balance of government control.
The Republicans profess a common desire to rescue Americans from the Unaffordable Care Act, with strategic differences on whether we can restore freedom the same way we lost it—incrementally. Getting something—anything—past the solid phalanx of Democrats’ opposition seemed to be their highest priority.
In the Name of Justice and Fairness
To the extent that politicians are genuinely motivated by something other than money and power (“fortune and glory,” as Indiana Jones put it), most seem to have common ground with Orentlicher on what Thomas Sowell calls The Quest for Cosmic Justice. They agree, for example, on protecting patients who have pre-existing conditions from “discrimination.”
Orentlicher frequently repeated a phrase from Sowell’s 1999 book: “through no fault of their own.” Even smokers may not be fully accountable. Many got addicted when they were still teenagers, whose brains were not fully mature. (Most on the Left do, however, think teenagers are mature enough to consent to abortion or sex-change surgery.) And whose fault is it? Are people with advantages or “privileges” through no merit of their own responsible for the disadvantages and misfortunes of others?
Sowell acknowledges that some people are disadvantaged, yet relieving them of personal responsibility encourages improvident or irresponsible future behavior by all.
And how to judge the result? ACA seeks to remove health “disparities”—i.e. achieve equal outcomes. Proposed replacements” also try to redistribute burdens in a way that is “fair,” perhaps by differing yardsticks. The enemy is Inequality.
In nature and in a free market, inequality is manifest. One description: “For unto every one that hath shall be given, and he shall have abundance: but from him that hath not shall be taken away even that which he hath” (KJV, Matthew 25:29). Or: “Them as has, gits” (Edward Kuhn, high school chemistry teacher, regarding the distribution of electrons in forming chemical compounds). The team with the best coach tends to attract the best players; those who have some capital can make more money.
The 20th century featured a number of attempts to fix the perceived injustice stemming from this law of nature, all of which require violating another law, once accepted as coming from a universal lawgiver: “Thou shalt not steal.”
But since inequality cannot be eradicated, the reformers focus on a process for achieving equality, Sowell explains. He summarizes the result: To allow government to determine how much money individuals shall be permitted to receive from other individuals does not just distort the economy. It is “more fundamentally a monumental concentration of political power which reduces everyone to the level of client of politicians…. [I]t makes virtually inevitable a constant and bitter struggle…for the favor of those who wield this massive power….”
In other words, “them as has [political pull], gits.” The equality that results is that of Orwell’s Animal Farm. As Sowell writes: “Vast inequalities of political power must be created in pursuit of economic equality. The only sure winners are those who exalt themselves as the arbiters of the fate of millions.”
The Ethical Foundation
Orentlicher did not answer my question about the basis of his beliefs, but did not contradict the suggestion that he agrees with John Rawls, best known for his defense of egalitarian liberalism in A Theory of Justice (1971). The principles behind ACA are most thoroughly argued by Rawls. In Rawls’s theory, there is no absolute moral law. Consensus is key; no one moral claim can be used as the standard to judge other moral claims. Certain inequalities of outcome are acceptable so long as everyone has the same “fair opportunity,” and as long as the existence of advantages confers some benefit on all (http://tinyurl.com/lhchhml).
There are rights, but they are not “self-evident” or unalienable. They belong to the collective, not to each individual. Orentlicher, for example, thought it was proper, early in the AIDS epidemic, to require all physicians to treat AIDS patients, lest the willing ones be unfairly burdened, without regard to risks to either physicians or their other patients. (Fortunately, AIDS is not like Ebola, and Ebola was not treated like HIV.)
Where can there be common ground between universal law and relativism? Law based on human nature, or on the power to determine the “consensus”? Objective truth, or the subordination of everything to a desired result, e.g. “betterment of society”?
Facts about “Pre-existings”
- Reasons for problem: Lack of continuous coverage because insurance is tied to employment and because of high cost (Avik Roy, Forbes 10/9/12, http://tinyurl.com/k42q7fl).
- Extent of problem: The individual market, which covers less than 10% of insured Americans. Before ACA, only a tiny percentage of Americans were denied coverage because of a pre-existing. Fewer than 115,000 signed up for the heavily subsidized pre-ACA Pre-Existing Condition Insurance Plan or PCIP (Avik Roy, Forbes 4/23/17, http://tinyurl.com/lwxtkyo).
- AHCA: $130 billion directed to funding high-risk pools (http://tinyurl.com/jwsa2x4), plus $8 billion in premium subsidies.
Is Egg Donation a Risk Factor for Breast Cancer?
In the U.S., the number of cycles of hormone therapy to enable oocyte donation increased from 10,801 in 2000 to 19,988 in 2010. There are few long-term studies of donor health outcomes. Schneider et al. report five case studies of women diagnosed with breast cancer at a young age (34, 37, 47, 33, and 33) several years after undergoing ovarian stimulation to serve as donors. Cohort studies involving infertile women undergoing ovarian stimulation to produce eggs for their own in vitro fertilization treatment have shown mixed results. Schneider calls for a registry of all egg donors, and for informing all women who undergo ovarian stimulation, especially more than once, that their long-term heath risks are unknown (http://tinyurl.com/k5dzqfu).
Medicaid Expansion a Windfall for Hospitals
“Nonprofit” hospitals in Oregon (60 of Oregon’s 62 hospitals are “nonprofits”) are banking windfall profits since the Medicaid expansion passed, while charity is essentially gone. Medicaid enrollment increased from 626,000 in 2013 to 1,056,000 in 2016. The biggest pile of cash reserves in local companies belongs not to publicly traded companies such as Nike ($3 billion), Portland General Electric ($4 million), or Mentor Graphics ($279 million), but to Providence Health & Services ($5.8 billion). For comparison, Tenet Healthcare, based in Dallas, a publicly traded chain of 79 hospitals (more than twice as many as Providence), ended the year with $445 million in cash. Hospitals are using the cash to buy new assets and refurbish their buildings, not to lower prices or improve quality. They pay their executives like a Fortune 500 company. Providence paid nine employees more than $1 million and another 27 more than $500,000—nearly all of them administrators. Through “voodoo accounting,” hospitals call the difference between inflated chargemaster prices and government payment a “community benefit” (http://tinyurl.com/lcxomgw).
“ ‘Inequality is the root of all evil,’ Pope Francis wrote on his Twitter account in 2014…. [N]one of Francis’s predecessors would have made such an outrageous claim. According to traditional Catholic theology, the root of all evil came not from inequality but from Satan’s refusal to accept inequality. Out of envy of God’s superiority, Satan rebelled. He could not bear his lesser status. He was in effect the first revolutionary…. [S]ocialist agitator Saul Alinsky…offered an ‘acknowledgment’ in his book, Rules for Radicals, to Satan. Alinsky saw him as the first champion of the ‘have nots.’ ”
George Neumayr, The Political Pope
Ten Ways Government Can Misuse Your Data
- Non-consented research to develop standard protocols
- Imposing standard protocols on non-standard patients
- Research-based rationing by productivity, age, etc.
- Penalizing doctors for not following protocols
- “Team-based” care directed by protocol
- Charging doctors with fraud for deviating from protocols
- Eliminating innovation by enforcing protocols
- Using race/sexual orientation data to accuse doctors of civil-rights violations
- Locating uninsured or unvaccinated persons to impose penalties
- Genetic and medical profiling (cchfreedom.org/cchf.php/990).
The Conscience of Progressives
Rationing. Orentlicher recognizes that managed care provides incentives to skimp on care, and states that fee for service incentivizes overutilization [as it does when a third party pays]. The answer: an “invisible hand” of government to “channel economic decisions in a productive direction” by “adopting real resource constraints” such as global budgets (http://tinyurl.com/lx2ch47)—in other words, to deliberately create scarcity.
Conscientious Objection. Physicians are not conscripts, argue Ronit Stahl, Ph.D., and Ezekiel Emanuel, M.D., Ph.D., and therefore cannot claim conscientious-objector status to avoid performing procedures that violate their conscience. “[H]ealth care professionals voluntarily choose their roles and thus become obligated to provide, perform, and refer patients for interventions according to standards of the profession.” The profession, rather than the individual practitioner, elucidates the ethical principles “through a process that the philosopher John Rawls characterized as reflective equilibrium.” Professional societies debate until they reach consensus, not unanimity—based on the “appropriateness of professional involvement…, not political or cultural acceptance.” Abortion is no longer medically controversial—it is standard obstetrical practice. To classify sex reassignment surgery or contraceptive use as “lifestyle choices” that merit conscientious refusal is “to allow personal moral judgment to masquerade as medical practice.” The person who wants to prioritize personal values over professional duties “must choose a less personally fraught occupation.” While laws may permit professionals to refuse to provide certain treatments, “professional medical associations should insist that doing so is unethical” (NEJM 2017;376:1380-1385).
June 9. Thrive Not Just Survive XXVI, Cincinnati, OH.
June 10. Board of Directors; KY chapter meeting, Cincinnati, OH.
Oct 5-7. 74th annual meeting, Tucson, AZ.
Oct. 3-6, 2018. 75th annual meeting, Indianapolis, IN.
ACTION OF THE MONTH
Sign up now for our 26th Thrive, Not Just Survive workshop in Cincinnati, June 9, at aapsonline.org. Help make independence an unstoppable trend! Bring or sponsor a student.
A New Type of “Sex Work”
A burgeoning $4-billion-per-year surrogacy industry is seeking international agreements to export the U.S. “exceptionalist” model. At a February 2016 meeting of U.S. State Department officials with stakeholders in the fertility industry, self-described radical feminist Kathleen Sloan was the only person to speak out in opposition. She calls surrogacy “pure class exploitation, endangerment of women’s health, a violation of women’s and children’s human rights, and a commodification of women and children.” Between 20% and 50% of U.S. surrogates are military wives, with an average income between $16,000 and $30,000 per year. Stars and Stripes and Army Times feature surrogacy broker ads. Tricare covers pregnancy and childbirth costs for contracting buyers. Governed by the states, surrogacy has many legal complexities. In same-sex surrogacies, most states list the buyers as “Parent” and “Parent” on the child’s birth certificate. Few American feminists dare to oppose the practice, Sloan writes. One reason is fear of being called “homophobic” (http://tinyurl.com/mr5t3va).
Catholic Hospital Sued for Canceling Surgery
Claiming a “clear-cut case of discrimination” under California’s Unruh Civil Rights Act, the ACLU is suing Dignity Health Mercy San Juan Medical Center on behalf of patient Evan Michael Minton. The hospital had cancelled his hysterectomy, planned as his next step to “affirm his authentic gender.” It was the worst news of his life, Minton said. His surgeon had to do the operation at another hospital. Catholic church officials oppose “gender confirmation” procedures, stating that they are detrimental to patients and “not properly viewed as health care.” Minton said he was “devastated,” and his “transgender brothers and sisters” shouldn’t have to “go through that” (http://tinyurl.com/ku2nccs).
SCOTUS Allows SOCE Ban to Stand
The U.S. Supreme Court declined, for the second time, to hear a challenge to the constitutionality of a 2012 California law that bans “gay conversion therapy” (sexual orientation change efforts or SOCE) for youths under age 18. After their free-speech challenge failed, plaintiffs in Welch v. Brown tried again, this time claiming interference with their right to freely practice their religion, but the 9th Circuit Court of Appeals rejected this argument also. In 2015, SCOTUS turned away a challenge to a similar New Jersey law (Reuters 5/1/17, http://tinyurl.com/m5ju892). Petition for writ of certiorari is available at http://tinyurl.com/l2jlh78.
Tip of the Month: Beware of phony patients who pretend to be homosexuals seeking conversion therapy, which was recently made illegal for minors in California, D.C., Illinois, New Jersey, New Mexico, Oregon, and Vermont, and this list is growing. If an inquiry is received, perhaps by email, from someone purporting to be a homosexual under the age of 18 from one of these jurisdictions, who seeks conversion, then it could be a trap. Stereotypical references to religion are a red flag. A safe response is to indicate the need for more information, such as whether there is a referring physician, and invite the “patient” to call your office to provide additional information before proceeding further. If it is a set-up, then he probably won’t follow-up.
FTC Complaint Filed against LGBT Activists
At least nine groups representing medical and mental health professionals filed a complaint with the Federal Trade Commission against the Southern Poverty Law Center and others that are lobbying for bans on therapy for clients distressed by same-sex attractions or gender-identity conflicts. The National Taskforce for Therapy Equality charges that SPLC and others have engaged in fraudulent, malicious marketing practices; actively and knowingly distorted scientific research; defamed therapists; and supported witnesses who give fraudulent testimony. The 45-page complaint is available at: http://tinyurl.com/kmdxy43.
Trump Promises to Protect People of Faith
On May 4, President Trump signed an Executive Order in the Rose Garden that directs the Dept. of Justice to write guidelines for all agencies to protect people of faith. “We will not allow people of faith to be targeted, bullied or silenced any more,” he stated. Some evangelicals believe the order does not go far enough, but it is said to be a “first step” (http://tinyurl.com/mxbcypo). In the Talking Points accompanying the EO, Trump noted that 99 churches had come under IRS scrutiny, and that “the IRS has a long history of abusing its authority against religious groups.” In proclaiming May 4 a National Day of Prayer, Trump stated that “not only do people have the right to pray and worship…but to practice their faith…in private and in the public square…. [R]eligious liberty…is not a favor from the government, but a natural right bestowed by God” (http://tinyurl.com/kjhcqbm).
First Federal FGM Case Launched
Female genital mutilation has been a federal crime in the U.S. since 1996, but the first arrests occurred last month in Detroit in the case of two girls who were brought to Dr. Jumana Nagarwala from Minnesota, where FGM is also a state crime. Dr. Fahkruddin Attar and his wife were also arrested. The procedure, generally called “culturally based” in the media, is not ordered in the Quran, but comes from the hadith and is part of extreme Shariah (http://tinyurl.com/lok4pan). About 500,000 women and girls in the U.S. are at risk or have already been “cut” (doi: 10.1037/pro0000079). “Little girls are being sacrificed [for] identity politics,” states Ayaan Hirsi Ali (http://tinyurl.com/lf6upwu).
New ABN Forms Required
As of June 21, all physicians enrolled in Medicare must use the new Advance Beneficiary Notice form, with the expiration date of 03/2020, to inform patients that a service is not covered or may be denied by Medicare. Added language tells patients that CMS does not discriminate, and that they may receive the form in a different format, e.g. large print (MPCA, May 2017). The new form can be downloaded from www.cms.gov/Medicare/Medicare-General-Information/BNI/ABN.html.
Do not use an ABN for Medicare Advantage patients; they have the right to an advance determination on all services. And here a “waiver” is the opposite of an ABN. It provides that a non-contract provider will not bill the enrollee regardless of the outcome of the appeal (Medical Practice Compliance Alert, April 2017).
Stealth Single Payer. The “surprise” medical bills being proposed across the nation (AAPS News, November and December 2016) could stealthily achieve a government-controlled system complete with a fixed fee schedule. Insurers will set all fees, which are already based on Medicare’s Resource-based Relative Value Scale, and adopt Medicare’s pronouncements on “medical necessity.” California-style laws would result in no more out-of-network physicians. For physicians it will be “everybody in, nobody out.” Innovation and superior service will be a thing of the past.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
Preauthorization Date Scam. United Healthcare denied payment for a lengthy in-office procedure it had preauthorized on the pretext that the preauthorization form had only one date—the date the staff member submitted the request, rather than the date the procedure was performed. From a legal standpoint, neither my authorization nor the patient’s specifies a date of service. Take names, document, and re-verify all precerts on the day of service.
Michael Riesberg, M.D., Pensacola, FL
Not “Good for Sick People.” Republicans are losing the debate because they’re not telling Americans that ObamaCare’s guaranteed-issue mandate raised their premiums sky-high, narrowed their networks, and diminished quality of care. Instead they get promises of a plan that is “every bit as good on pre-existing conditions.” The cause of pre-existings is children aging out of their parents’ or workers losing their employer-owned coverage. The solution is personal ownership of lifelong, portable, affordable true insurance. Meanwhile, sick people need care, not a prepaid third-party “health plan” (http://tinyurl.com/lhhfr9l).
Twila Brase, R.N., Citizens’ Council for Health Freedom
Political Theater. The “narrow passage” of AHCA probably involved meetings of Republicans deciding who had to vote “no” to save their miserable election campaigns in liberal districts. We can only hope that Sen. Rand Paul and Sen. Ted Cruz can change the AHCA 30% pseudo-repeal nonsense plan to something of worth that will actually work. We need to educate Congress and the public about the realities of insurance and the way to actually “take care of the most vulnerable people.” The president of the AMA and all of their dysadvocates still don’t understand. AMA President Andrew Gurman stated, “[AHCA] will result in millions of Americans losing access to quality, affordable health insurance,” especially patients with pre-existings.
Craig M. Wax, D.O., Mullica Hill, NJ
Doctors Must Educate. I think that the AMA advocates for ACA out of self interest. ACA’s goal was not to provide care or reduce cost, but to define insurance coverage in a system where every point of care is covered. Thus, ACA allows the AMA to prosper from its CPT coding monopoly. Physicians are now understanding that the AMA does not represent them and is tied to the insurers who frankly bully doctors into compliance. I don’t see the AMA ever recovering to a point where even close to a quarter of American doctors are members. I advocate for physicians to get involved with their state medical societies and change those societies from within. Physicians also need to connect with and responsibly inform their patients and reduce the fear-mongering. Last year Physicians Working Together launched the first-ever patient physician health care town halls. PWT plans to expand this in 2017.
Marion Mass, M.D., Philadelphia, PA
Pre-existings vs. Insurance. Sen. Rand Paul nailed it: to tell insurance companies they can’t exclude people with pre-existings is like telling people they don’t need to buy insurance until they are sick. This socialism is called “social justice”—which depends on which social group you belong to: the self-responsible group, which pays, or the group that lives moment to moment, which gets what it needs at others’ expense. The problem isn’t just ACA or AHCA. It’s government intervention in medicine and in the health insurance industry. It’s insanity, passing for “social justice” and reasonableness (drhurd.com/2017/03/10/63293/).
Michael Hurd, M.D., Rehoboth Beach, DE
Pre-existing Trade-offs. Under ACA, Tom, who was previously uninsured, got $200,000 worth of treatment for his pre-existing lung cancer in his first 2 years of enrollment. Continuously insured Jenny, whose daughter has a rare blood condition, now has much higher premiums, a ten times higher deductible, and a 90-minute instead of a 5-minute drive to get treatment. What if for every Tom, there are 50 or even 1,000 Jennys? And what if Tom smoked for 30 years? Where is the justice?
Rocky Bilhartz, M.D., bilhartzmd.com/?p=3967
Language Matters. Communists who call themselves progressives have co-opted language and invented Political Correctness, a form of language censorship. The slogan “Forward!” (to what?) was used by Communists and Nazis alike. Progressives now “resist” through violence a duly elected President, and the term is being spread worldwide by the same globalists who are funding street demonstrations in the U.S. “Equal opportunity” means preferential treatment and “social justice” is taking and redistribution.
Ileana Johnson Paugh, http://tinyurl.com/mkqk8n8