Volume 72, no. 9 October 2016
In the final days of the Obama Administration’s second term, the “fundamental transformation of America” is accelerating, with the promise that the legacy would be continued under a Hillary Clinton Administration. This would mean the end of one (sovereign) nation under God.
Despite its many transgressions, America has been united by the belief in one common law, one common language, common acceptance of Judeo-Christian morality, and belief in the principles in the Declaration of Independence. All human beings are equal under the law, and all have unalienable individual rights—to live according to their conscience and to own property, as long as they do not infringe on the same rights of others. These rights come from “Nature and Nature’s God,” not from government.
The Judeo-Christian moral law is simple enough to be understood by all. Catholics are expected to know enough of the catechism to be confirmed by age seven; Lutherans by around 14. The bar or bat mitzvah is at age 12 or 13. There are elaborations as in canon law and the Talmud, but these do not contradict the basic code. Western criminal law is based on the Decalogue.
The culture that leads to prosperity and peace is based on universal values that can be adopted by all. Respect for law, honesty, thrift, and hard work—not “white privilege”—bring success to all races and nations that exemplify them. Corruption, lies, theft, dissipation, and sloth bring poverty and misery.
So what is the transformed America of the Progressive vision? We observe attempts to instigate racial and class warfare, an attack on Judeo-Christian values and long-established individual Constitutional rights, and efforts to subjugate everyone in a fractured nation (or is it just a geographic region?) to a central regime.
One faction in the world aims for a universal caliphate under Sharia law. Islamic law is different in fundamental respects from Western law. All human beings are not equal: women and nonbelievers are at best second-class citizens. Murder and rape may be permitted—or even demanded. But at least the law is based on defined principles, and simple human beings can understand it.
A political elite apparently aspires to dominate One World, likely under the United Nations, subjecting all to positive, man-made, ever-evolving, complex and obscure administrative laws. No one can comprehend the entire law, but the “Hillary defense” (“I didn’t know,” or “I didn’t intend to commit a crime”) works only for high officials (AAPS News, September 2016).
It would seem that these two factions are incompatible, so the U.S. government’s apparent favoritism toward Islam seems puzzling. But both are anti-American and anti-Christian. Islamic extremists, like indigenous groups that are bussed around the nation to incite riots, may be tools to destroy American unity.
The Importance of Language
In ancient times, the Lord confused the language of the people to prevent completion of the Tower of Babel (Genesis 11:1-9). In his novel That Hideous Strength, C.S. Lewis writes that the nefarious scheme of the evildoers was thwarted when they all started speaking incomprehensible nonsense. Today, our new lords are attacking our common language, splintering the nation and crippling our ability to practice medicine.
Notices about the new “Nondiscrimination Rule” implementing §1557 of ACA (AAPS News, July 2016) must be posted in 15 languages. And failure to provide translation services to patients with limited English proficiency (LEP) is discrimination.
Government resettlement programs are importing large numbers of people with LEP. Strich School of Medicine at Loyola Univ. puts children of illegal immigrants on the same footing as citizens and foreigners holding green cards, and touts the importance of being bilingual and bicultural. The writer of a letter protesting this to the Dept. of Medical Education is afraid to sign it.
English itself is under attack as Progressives change the meaning of common words, such as “tax” in the Affordable Care Act (ACA) (AAPS News, August 2012) and “member” in AAPS litigation over the Clinton Task Force on Health Care Reform.
“Words and meaning have frequently been at war with each other,” wrote attorney Thomas Spencer in an AAPS brief.
“When I use a word,” Humpty Dumpty said in a rather scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all” (Lewis Carroll, Through the Looking Glass, 1948). (Brief is at http://tinyurl.com/h2ewaa6).
The New “Nondiscrimination” Ethic
The Rule, which takes effect Oct 17, is expected to lead to ethical conflicts, and HHS notes that the lack of a broad religious exemption is deliberate because of a compelling governmental interest—apparently in compliance with HHS secular ethics.
To questions of “What does this mean?” the answer is that it depends on “nuanced and fact-dependent analysis.” In an ingenious use of the public-private partnership, all covered entities must post multi-lingual invitations to sue. What if a surgeon declines to do mastectomies on a 16-year-old transgender “man”?
One huge uninsurable judgment would signal to all that fundamental change has been accomplished: America is ended. We are under a new master, and refusal to harm has become a crime.
Religious Liberty = Discrimination, Says HRC
When Hillary Clinton denounced half of Trump’s supporters as “bigoted,” “homophobic” people who are so “deplorable” as to be “irredeemable,” she was talking about observant Christians or other people of faith with traditional views on sex and marriage, writes Ken Klukowski. The occasion was an LGBT event one day after a report was issued by the U.S. Commission on Civil Rights.
In a statement accompanying the report, Chairman Martin Castro—an ally of Clinton and Obama—said: “The phrases ‘religious liberty’ and ‘religious freedom’…remain code words for discrimination, intolerance, racism, sexism, homophobia, Islamophobia, Christian supremacy or any form of intolerance.”
In 2015, Clinton said that orthodox Christian views on abortion, marriage, religious liberty, and other social issues “have to be changed” (http://tinyurl.com/h6mftd5).
IRS Stalking ObamaCare Holdouts
As many as 20 million Americans will soon be getting a letter from the Internal Revenue Service “suggesting” that they sign up for ObamaCare. At Obama’s direction the IRS is “reaching out” to people who paid a tax penalty or claimed an exemption in the hope of “attracting” more enrollees. About 45% of these people are under the age of 35, compared with 30% of all taxpayers, writes Grace-Marie Turner (http://tinyurl.com/hokxv9m).
House Republicans are objecting on the basis that CMS is specifically prohibited from using confidential tax information for any purpose except to determine eligibility for subsidies.
It is required, however, for the IRS to determine whether taxpayers were eligible for any subsidies they claimed, writes Doug Badger (http://tinyurl.com/z75kryd). On this, the IRS has been less diligent. Subsidy recipients who filed income-tax returns reported receiving $15.8 billion in 2015. The government paid out about $26.7 billion, a discrepancy of $11 billion. The zeal and the laxity serve the common goal of saving ObamaCare by herding as many people as possible into the Exchanges.
Phyllis Schlafly: R.I.P.
AAPS mourns the loss of Phyllis Schlafly, a great American heroine. Among the gifts she gave our nation are Andrew Schlafly, our general counsel for 20 years, and Bruce Schlafly, M.D., long-time AAPS member and former director. She spoke at a number of AAPS meetings, most recently in St. Louis in 2014. Active until her death at age 92, she was a delegate to the 2016 Republican National Convention. Her last book, with Ed Martin and Brett Decker, is The Conservative Case for Trump. She became the leader of the conservative movement in 1964 with her best-selling book A Choice Not an Echo. With her 29 books, 3,000 syndicated columns, 8,000 radio commentaries, and thousands of speeches, she was an eloquent champion of America and traditional values.
“Socialism in all its forms—from Wall Street subsidy seekers to bureaucratic profiteers—is in practice a conspiracy of the greedy to exploit the productive. The beneficiaries of the government’s transfer of wealth and income smear their betters with the claim of avarice they themselves deserve.”
George Gilder, Recapturing the Spirit of Enterprise, 1992
AAPS 73rd Annual Meeting
In Oklahoma City, Michael J. A. Robb, M.D., of Phoenix, AZ, was installed as president, and the following were elected:
President-elect: Albert Fisher, M.D., Oshkosh, WI
Secretary: Charles McDowell, Jr., M.D., of Johns Creek, GA
Treasurer: W. Daniel Jordan, M.D., Atlanta, GA
Board of Directors: Lawrence Huntoon, M.D., Ph.D., of Eden, NY; Thomas Kendall, M.D., of Greenville, SC; Tamzin Rosenwasser, M.D., of Venice, FL; and Marilyn Singleton, M.D., J.D., of Redondo Beach, CA. Stephen Piercy, M.D., of Fort Dodge, IA, also joined the Board recently to fill a vacancy.
Lifetime Achievement Award
AAPS conferred its first award for lifetime achievement, henceforth to be known as the Curtis Caine Award, “In appreciation for tireless efforts on behalf of patients and physicians and unwavering commitment to Constitutional principles,” on Curtis Caine, M.D. Dr. Caine has been a member since 1949, was president in 1981, served many terms on the Board of Directors, and has attended almost all meetings, often piloting his own airplane. He authored the series “The Constitution—Plain and Simple” in the Medical Sentinel (http://tinyurl.com/jq3u99r). He reminds us constantly of the importance of semantics—and the Word (John 1:1).
AAPS to Oppose Death Ethic at AMA
Decades-old AMA Policy (http://tinyurl.com/gtysmvs)states that: “Our AMA strongly opposes any bill to legalize physician-assisted suicide or euthanasia, as these practices are fundamentally inconsistent with the physician’s role as healer.”
There is an effort currently underway within the AMA to abandon this position and take a neutral stance, which essentially sends a green light to the states that legalizing is acceptable. This will be considered at its July 2017 annual meeting. A special breakout session will be held on assisted suicide at the Nov 12-14 interim meeting in Orlando.
A coalition of physicians called Physicians Aid in Living (PAL) will hold a press conference in Orlando on Nov 12. PAL believes that patients should expect their physicians to put their lives ahead of other considerations such as third parties’ desire to cut spending. “Weakening opposition to physician-assisted suicide by the AMA would send the wrong message to patients that they should seek death rather than life.”
The AAPS Board of Directors approved a motion to participate in the press conference. David McKalip, M.D., founder and president of our Florida chapter, will represent AAPS.
Jan 27, 2017. Thrive Not Just Survive XXV, Orlando, FL.
Jan 28, 2017. Board of Directors & FL chapter, Orlando, FL.
Oct 5-7, 2017. 74th annual meeting, Tucson, AZ
Final Nondiscrimination Rule
- Language. The Rule codifies long-standing HHS policy guidance about “free,” “qualified” translation services. No minimum threshold is specified. The creation of a written language access plan is one factor the Office of Civil Rights (OCR) will consider in evaluating compliance (Kaiser Family Foundation Summary, http://tinyurl.com/h3tcooe).
- Application. The Rule applies to all health programs and activities that receive federal financial assistance from HHS or that are administered by HHS, including federally facilitated or state-based ACA Marketplaces. Included are health-related schools, navigators, state agencies, clinical laboratories, home health agencies, insurers, physicians’ practices, and much more (ibid.).
- Immigration status. Section 1557 does not explicitly ban discrimination based on citizenship or immigration status, as opposed to national origin—unless it disproportionately affects individuals of a particular national origin group (ibid.).
- Grievance procedure. All entities employing at least 15 people must have a formal grievance procedure and designate at least one employee to deal with compliance (ibid.).
- Comments. HHS received 24,875 comments; 23,344 were from individuals, mostly from mass-mailing campaigns organized by advocacy groups (Federal Register, http://tinyurl.com/za23ury).
- Sex-specific health programs. These are allowable only if “an exceedingly persuasive justification” is demonstrated (ibid.).
- No “deeming” approach. Compliance with another set of rules will not automatically be deemed compliant with §1557 (ibid.)
- Most of 900,000 physicians covered. Though Medicare Part B is not considered federal financial assistance, almost all practicing physicians in the U.S. are reached by §1557 because they accept some form of Federal remuneration or reimbursement apart from Medicare Part B (ibid.).
- Cost. Total training costs are estimated to be $371.7 million. The employment of grievance officers (median wage $104,000) might be $48.2 million in the first year. There are many other costs of this unfunded mandate, but HHS “believes” that fewer than 5% of all small entities will experience a burden of greater than 3% of their revenues (ibid.).
- Lawsuits. OCR interprets §1557 as “authorizing a private right of action for claims of disparate impact discrimination on the basis of any of the criteria enumerated in the legislation.” It has added a provision to make it clear that compensatory damages are available. Cases may also be referred to DOJ to litigate (ibid.).
Tip of the Month: As States increasingly impose e-prescribing requirements on physicians, there are concerns about whether this will trigger “covered entity” status under HIPAA for physicians who e-prescribe. Many AAPS members have benefited from remaining as non-covered entities, which keeps them free of federal jurisdiction pursuant to HIPAA over their practices.
So far, e-prescribing does not make a physician a “covered entity” under HIPAA. But the reason for this is not what you might expect. E-prescribing does not make someone a covered entity because e-prescribing is not yet a “standard transaction.” E-prescribing is an electronic transaction, and it does transmit personal health information. But the lack of a single federal standard requirement for the e-prescribing in the various States means that e-prescribing is not a standard transaction for the purposes of HIPAA, and thus does not alone trigger “covered entity” status for a physician.
Unlimited Liability under False Claims Act?
In a unanimous decision in Universal Health Services v. U.S. ex rel. Escobar (http://tinyurl.com/hgvjrjq), the U.S. Supreme Court ruled that a claim may violate the False Claims Act if it “fails to disclose the defendant’s violation of a material statutory, regulatory or contractual requirement,” whether or not “those requirements were expressly designated as conditions of payment.” In Escobar, the issue was whether a non-physician practitioner was properly licensed. Attorneys worry that, despite stated limitations, the universe of exposure might be virtually unlimited.
“Be vigilant in a new way,” advises Indianapolis attorney David Honig. If you are accepting federal money, take care not to be out of compliance on anything—medical equipment certification, medical waste handling, etc. (Medical Practice Compliance Alert, September 2016). A breach of the Nondiscrimination Rule could also incur FCA liability.
Medical Groups, 5 States Challenge HHS Rule
In Franciscan Alliance v. Burwell, three Christian medical groups and the states of Texas, Wisconsin, Nebraska, Kentucky, and Kansas have filed suit in federal district court in Texas challenging the Nondiscrimination Rule, arguing that it violates the Administrative Procedure Act, the Religious Freedom Restoration Act, and the U.S. Constitution (http://tinyurl.com/jbtwr23).
The Rule would prohibit Plaintiffs from expressing their opinion that medical gender-transition procedures are not the best standard of care or are experimental, states the complaint.
A doctor who does hysterectomies for uterine cancer would have to provide a hysterectomy to a transgender man just as quickly because the Rule argues that hysterectomy is “medically necessary to treat gender dysphoria” (http://tinyurl.com/hdp2wcm).
Franciscan could lose about $1 billion in federal funding if it failed to comply with the Rule.
The Becket Fund for Religious Liberty is representing the three medical groups in the suit.
Unequal under the Law
The Dept. of Justice can employ the Responsible Corporate Officers (Park) Doctrine to punish corporate executives without proving intent, or even negligence or knowledge of a violation. The Park Doctrine does not apply to Hillary Clinton, EPA head Gina McCarthy, or IRS commissioner John Koskinen, writes Paul Driessen (http://tinyurl.com/jj6pd8y).
Dr. Christine Cassel’s name was misspelled as “Cassell” in our September issue. She would be the Christine K. Cassel whose name appeared on Form 4, the SEC’s Statement of Changes in Beneficial Ownership as acquiring or disposing of 3,704 securities of Premier, which has created one of the most comprehensive “actionable” databases, on a “mission to transform healthcare.”
Hush! It Costs Less to Pay Cash. As pointed out in Kaiser Health News (http://tinyurl.com/hedcdeo), “some consumers who use health insurance copays to buy prescription drugs are paying far more than they should be and would be better off paying with cash, especially for generics.” The money from the fraudulent clawback scheme is largely being pocketed by pharmacy benefits managers. Pharmacists are afraid to tell people that they could save a lot of money by paying cash for their prescriptions instead of using their insurance, lest they be kicked out of the PBM network. The same is true for medical care. Patients can not only obtain better care from a third-party-free physician who has no conflicts of interest, but they can often obtain care at a lower cost by not using their insurance. As stories leak out, people will become more aware that with ObamaCare, their insurance is simply a redistribution vehicle that provides little value to them.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
Certification Monopoly. The biggest reason for participating in the American Board of Medical Specialties (ABMS) Maintenance of Certification (MOC) program is that insurers require it. And who sets the rules about which credentialing bodies U.S. insurers can accept? The National Committee for Quality Assurance (NCQA), which HHS selected as an accrediting entity for Qualified Health Plan issuers participating in the Health Insurance Exchange Marketplace. Who comprises the leadership ranks of the NCQA? People from the ABIM Foundation, the National Quality Forum (NQF), American College of Physicians (ACP), the Association of American Medical Colleges (AAMC), and the insurance industry (posted 9/18/16 at http://drwes.blogspot.com).
Westby G. Fisher, M.D., Evanston, IL
Designers of Failed Systems. The Obama Administration and the State of Vermont picked William Hsaio of Harvard [also the creator of the Resource-Based Relative Value Scale system of Medicare price controls] and Jonathan Gruber of MIT as key consultants. As Rich Lowry stated, Gruber’s revealing videos about ACA [AAPS News, January 2015] were emblematic of “the progressive mind, which values complexity over simplicity, favors indirect taxes and impositions on the American public so their costs can be hidden, and has a dim view of the average American.” Hsaio also helped install a single-payer system in Taiwan. It’s hard to tell whether health has improved, but he claims everyone has access to good care. There’s a deficit, but he attributes that to preservation of fee for service (http://tinyurl.com/h9w2e7q).
Stanley Feld, M.D., Dallas, TX
Do We Need Them? We seem poised to remain in our current state, because we only see what insurers want us to see: that we can’t pay for anything without them. So we create laws that mandate that we use them. Third parties won’t call me back about my patient’s needed medication, but they fly someone in first class from four states away to discuss my medical documentation. The most virtuous stone throwers condemn physicians who might have the slightest lean toward a conflict of interest, but appealing denials to someone who works for the insurance company remains noticeably absent from their aim. As Thomas Sowell noted, if we can’t afford to pay for doctors, hospitals, and medications, how can we afford to also pay for a government bureaucracy to administer them? Trillions of tax-funded dollars, allocated through corporate-influenced political means, are paying for more and more things we don’t value, while interfering with good doctoring.
Rocky Bilhartz, M.D., http://tinyurl.com/jsupjjv
Unintended Consequences. Overdose deaths have more than doubled between 2000 and 2014. Don Winslow blames the legalization of marijuana (http://tinyurl.com/z8smfox). This cut into the profits of the Sinaloa Cartel, which made a business decision to shift into heroin. They increased production of Mexican heroin by 70%—they have the best poppy fields in the world—and increased its purity from about 46% to 90%. Then they dropped the price to undercut the pharmaceutical companies. Mexican heroin costs $5 to $10/dose, while the street value of an OxyContin capsule is about $30. Law enforcement is cracking down on both legal and illegal OxyContin, opening the door for heroin dealers. Former pill users are unaccustomed to the potency, and 125 people are dying every day, a number that matches the peak of the AIDS epidemic in San Francisco in 1995.
Benjamin Domenech, The Transom 8/12/16
Clinton Appointments. In 2009, Bill Clinton allowed Hillary to suggest appointments. For Attorney General she suggested Zoe Baird and Kimba Wood (both forced to withdraw), then Janet Reno, who “took responsibility” for burning women and children alive at Waco. Reno was “my worst mistake,” according to Bill. Hillary also chose former law partners Webster Hubbell for the Dept. of Justice (sentenced to 21 months in prison), Vince Foster for White House staff, and William Kennedy for Treasury (forced to resign). For Director of White House security, she recommended Craig Livingstone, who was investigated for improper use of FBI files of Clinton enemies. During the Starr investigation, Hillary avoided prosecution for perjury and obstruction of justice by 56 claims of no recollection or no knowledge.
Joseph Scherzer, M.D., Scottsdale, AZ