Volume 59, No. 9 September 2003

PRIVACY, LIBERTY, AND TELEOCRACY

What Americans are living through today is not a mere "health care reform," but a profound transformation, as Newt Gingrich explains in his new book Saving Lives & Saving Money (also see AAPS News Feb 2001).

Nor is it just a transformation of American medicine, but a giant step in the metamorphosis from the traditional Western political tradition of nomocratic or rule-based government into modern teleocracy. A teleocratic government of which communism is one extreme form is designed to achieve certain ends. These might be building a "new society," abolishing poverty, or redesigning a system of "health and healthcare."

There are virtually no limits to the government role in a teleocracy, observes Joseph Sobran, because anything that people do could be subversive of the desired outcome. Thus, many spontaneous activities are apt to be censored or criminalized (Griffin Internet Syndicate 7/17/03).

Incentives are touted, but if they don't work, the government can always resort to brute force. Even Newt Gingrich, who styles himself a "free-market conservative who believes in minimal government involvement," thinks it is justified to "mandate the use of electronic systems to drag the medical system into the 21st century."

Information, after all, is critical to achieve his goal of a "collaborative government [that] manages by outcomes."

Change is urgent; Gingrich invokes the bioterrorism threat, and the looming choice of "quality or bankruptcy."

Recall that, although separated by a few years in implem- entation, the Clinton criminalization and "administrative simplification" provisions were passed in the same package, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). They also mesh nicely with the USA PATRIOT Act. Still more demands for data, and more punitive uses for it, are rapidly coming to the fore.

Patient safety bills now being considered (H.R. 663 and S. 720) are more about surveillance than safe care, writes Twila Brase, R.N., of the Citizens' Council on Health Care. Taxpayer funds would be used to build computerized data systems, falling in line with an initiative announced on July 1 by the Dept. of Health and Human Services to create a "national electronic health care system" ( www.cchconline.org).

The Institute of Medicine (IOM) is urging the federal gov- ernment to use the leverage that it acquires by paying medical bills for one in three Americans to address quality concerns. Payment should be partly based on quality as judged from data that practitioners would have to submit (AM News 11/18/02).

Punishments are being developed faster than incentives. Since the IOM released its To Err Is Human report in the fall of 1999 (AAPS News Apr 2000), "the timing is about right for us to see cases that have been percolating behind the scenes," said Joan Krause of the Univ. of Houston Health Law & Policy Institute (BNA's HCFR 7/23/03). Federal prosecutors are looking for a good False Claims Act case based on allegations of inadequate quality of care.

The campaign of prosecutions of nursing homes for quality will probably spill over to hospitals and physicians' practices, according to Jim Sheehan, Assoc. U.S. Attorney for the Eastern District of Pennsylvania (Medicare Compliance Alert 8/4/03).

Private payers' Special Investigations Units use common data bases and data mining programs to target providers who are referred to the FBI for criminal prosecution. HIPAA can turn what was formerly a private billing dispute into a federal crime with heavy fines and up to life imprisonment if a beneficiary dies (ibid.; AAPS News Jan 1994). Failure to report significant events may be taken as a sign of "conceal[ing] endemic quality problems," and thus of fraud.

HHS claims that "Congress intended a broad interpretation of `health care fraud and abuse,' including adverse patient outcomes, failure to provide covered or needed care..., or delays in diagnosis and treatment'' [emphasis added] (Turner G-M, HIPAA and the criminalization of American medicine, Cato J 2002;22(1):121-150.)

The "basic tool kit of a health-care quality movement" includes practice guidelines linked to the medical record. This will allow the government to combat the "epidemic" of wide variation in how doctors treat patients with similar ailments. Getting doctors to "embrace these tools as the standard of care" is essential. Without them, the system will "continue to spiral out of control" (Winslow R, Wall St J 2/3/03).

Control: that's what the debate is about. Control requires information. Privacy is the right of a person to control information about himself and is a subcategory of the right to liberty. In a teleocracy, privacy is balanced against the need of the state to know or used to shield the state from exposure.

The same government that wants unimpeded mining rights in private records jealously guards its own secrets from public view. In Office of Independent Counsel v. Allan J. Favish (see p. 3), the OIC is attempting to block the release of certain original Polaroids of the body of Vincent Foster under the Freedom of Information Act, citing a "privacy" interest of Foster's remarried widow in being free of added emotional distress. Favish argues for the interest of the public in disclosure as a check on government trustworthiness.

The extent to which government secrecy now overrides individual privacy is seen in the modest proposed amendments to the USA PATRIOT Act (S. 1552). These would restrain government from "sneak and peek" searches of homes unless "absolutely necessary," and prevent certain political activists from being labeled "domestic terrorists."

The Panopticon (see p. 2) is being built under the cloak of "privacy," "safety," "national security," "quality," and "health."

The Panopticon

HIPAA and National Security. The U.S. National Security Agency (NSA) and the Dept. of Defense have partnered with private firms to develop HIPAA-compliant (and NSA-compatible?) software. Anyone from a national security agency can demand records with an oral administrative subpoena; 2,102 were issued for the FBI in 2001. Unlike much evidence uncovered by search warrant, these records can be widely circulated among government agencies. Even the PATRIOT Act requires a court order (sfweekly.com 5/28/03).

Government Databases: Accuracy and Compliance

More than half the providers in the active Unique Physician/Practitioner Identification Number (UPIN) database had inaccurate information in at least one practice setting record, according to a study by the Office of Inspector General ( http://oig.hhs.gov/oei/reports/oei-03-01-00380.pdf).

Government compliance with the Privacy Act of 1974 is uneven, and the General Accounting Office (GAO) concludes in a June, 2003, study that "the government cannot adequately assure the public that all legislated individual privacy rights are being protected." Noncompliance was highest (29%) for the requirement to verify that information is complete, accurate, relevant, and timely before disclosure to a nonfederal organization. Agencies generally place a low priority on compliance efforts ( www.gao.gov/new.items/d03304.pdf).

Homeland security needs may be generating more personal information that is maintained outside the Act. The ease with which electronic databases can be created and merged may result in "unofficial" systems of records so that agencies themselves are unaware of all the uses of their data.

There are now 2,400 federal databases on citizens, and one system of records holds data on 290 million people, notes Twila Brase of CCHC (www.cchconline.org).

House Probing Hospital Charges to Uninsured

Reps. Billy Tauzin (R-LA) and James Greenwood (R-PA) have sent letters ( energycommerce.house.gov) to 20 large providers, including HCA and Tenet, as part of an investigation of "billing inequalities many uninsured patients face during hospital visits" (see AAPS News July 2003). Up to 35% of one hospital chain's profits are purportedly accounted for by the 2% of its patients who are uninsured (BNA's HCFR 7/23/03). In a June alert, the American Hospital Association urged its members to change their billing and collection practices (Wall St J 7/17/03).

State Coordinators Still Needed

State coordinators will be appointed at the annual meeting; you do not need to be present. If you'd like to volunteer to advise us about issues in your state, please call us at (800) 635-1196, or send e-mail to [email protected].

AAPS Calendar

Sept. 17. Board of Directors mtg, Point Clear, Alabama.
Sept. 17-20. 60th annual mtg, Point Clear, Alabama.
Oct. 13-16, 2004. 61st annual mtg, Portland, Oregon.

AAPS to File Amicus in FOIA Case

Lying in court is "nothing less than a fraud against the public," stated cofounder Bernard Ackerman, M.D., a dermatopathologist from New York. CCEMT will develop tools to promote peer review of expert testimony and to make unethical experts accountable. See www.CCEMT.org.

Nullification

More than 100 cities have passed resolutions condemning the USA PATRIOT Act, saying that it gives the federal government too much snooping authority. The Arcata, California, City Council was the first body to pass an ordinance that would impose a criminal penalty, a fine of $57, on any city department head who voluntarily complies with investigations or arrests under the aegis of this act.

U.S. Justice Dept. spokesman Jorge Martinez defended the Act, saying it is constitutional and is being used only against people suspected as acting as agents of foreign powers or foreign terrorist organizations. He also calls the groundswell of resolutions "merely symbolic." There have been no instances of actual noncompliance by localities (CNN.com 5/18/03).

The New Mexico House of Representatives passed House Joint Memorial 40, sponsored by Rep. Max Coll, on a vote of 53-11, directing state law enforcement officials not to enforce the PATRIOT Act when doing so would infringe on civil liberties. The resolution does not have the force of law, and was tabled in the Senate.

These actions are a step toward the constitutional remedy of nullification, proposed by Thomas Jefferson in 1798 and eloquently supported by John C. Calhoun. They suggested that it was the nature of compacts that one side could not have the exclusive right to interpret the terms (Wood TE, Nullification: the Jeffersonian brake on government, Ideas on Liberty 3/02).

Dr. Eist Wins Appeal of BPQA Decision

Relying in part on an amicus brief filed by AAPS with other organizations, the judge ruled from the bench in favor of Dr. Eist in Harold Eist v. Maryland State Board of Physician Quality Assurance (civil case no. 240300, Cir. Ct. Montgomery County). The court appears to have rejected the BPQA position that it has the unqualified right to demand disclosure of patient records without notice to the patient.

Tip of the Month: We inherit our legal tradition from England, where a man's home was his castle. Landowner rights have not survived the environmental movement, but do remain important in criminal law. An arrest in one's home requires a warrant, signed by an impartial magistrate based on evidence. In contrast, no warrant is required to arrest someone outside of his home. Many defendants including at least one doctor have been tricked into leaving their home by officials seeking to make an arrest without a warrant. Deception by government is fully allowed (e.g., "Come out and look at your flat tire" followed by an arrest outside of the home). Note also that a search of a home without a warrant is presumptively unconstitutional, while warrantless searches of cars and offices can be upheld.Andrew Schlafly, Esq.

Veeck Decision Stands

The Supreme Court declined to grant the petition for writ of certiorari in Veeck v SBCCI (AAPS News Jan 2003), allowing the Fifth Circuit decision to stand. AAPS wrote to the Dept. of Justice, which the Court had asked to comment: "Regulatory complexity needs to be exposed rather than concealed. The Department of Justice should not be siding with narrow special interests like that of Petitioner SBCCI and the American Medical Association, at the expense of the citizen's right to disseminate the law. We support an unfettered right of free speech to disseminate legal requirements."

Prosecutors Avoid Jury Trials

In 1989, 17% of drug prosecutions were disposed of after jury trials; by 1998, this had fallen to 7%. In FY 2001, only 3.4% of all federal convictions resulted from a trial; the rest, from guilty pleas. Criminal defense lawyers are leaving the field because "they are no longer permitted to defend their clients but are left with the role of negotiating guilty pleas, submitting memoranda on sentencing guidelines, and encouraging their clients to turn in other persons.... The huge disparity between the offered sentences...has forced virtually all defendants except the foolhardy to plead guilty to whatever is offered" especially since it may cost $600,000 to go to trial (NY Magazine 3/4/02).

Prosecutors can compensate witnesses by allowing them to avoid decades in prison with proper testimony. A defense attorney who offered comparable dollar value would be disbarred and imprisoned for bribery (Kuykendall GJ, Ariz Daily Star 9/5/98). See www.lawmall.com/pleabarg.

Correspondence

Trainwreck Is on Schedule. More than half of America's neurologists are no longer accepting complex cases. Neurologists typically have a high percentage of Medicare patients, and they have fared poorly in the RBRVS system. Payment is simply not commensurate with the time and effort required to care for complex Medicare patients. The superimposed liability crisis will cause the "Medicare marketplace" to change even more rapidly. If Congress adds a prescription drug "benefit," shortages and impaired access will accelerate at a whirlwind pace. If a Medicare patient can find a neurologist willing to see him, that physician will probably have been trained to give the "system" priority over the patient. There is now a "GME core competency requirement" in "system-based care." Medical devolution is underway with selection of the unfittest.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

Electronic Systems. The government's goal is to have double-digit-IQ coders decide payment based on ICD code (diagnosis), CPT code (procedure), V code (background), E code (history), and Q code (supplies). They can deny claims for $8/hour. Emergency rooms comply by getting rid of expensive doctors and employing physician assistants to run off a 2-page printout of all the negatives that apply to a human being possibly without mentioning the fracture. Recently, a patient with a broken hip who had a cast on his other leg for a trimalleolar fracture had three extremities coded as normal because the coder didn't look under the blanket. Physicians now have to call each other on the phone when they want information.
Owen McCarthy, M.D., Bradenton, FL

Who Is the Enemy? We need to stop circling the wagons and firing inward. Doctors are not the enemy. Neither are insurance companies, consumers, drug companies, hospitals, or employers. The enemy is socialists who revel in a divide-and- conquer strategy, seek to politicize everything, want to confiscate other people's property for their own use, and strive to increase government power because they enjoy ordering other people around "for their own good." The enemy is the laws and regulations used to accomplish these things.
Linda Gorman, Englewood, CO

What Health Care Reform Is About. To win the battle, we must win the hearts and minds of those who do not understand that the war is not about medical care but about how we are governed. We cannot win the war by arguing about health care. The masses of people will obviously want everything "free"; the illusion is just too strong a temptation to resist.

One group believes that all resources and wealth should be evenly distributed and that no one has a prior claim on that wealth. The other believes in property rights, the concept that people have a right to the wealth and resources they produce or own. The question is: do we want socialism or communism or a free republic? The answer determines the type of medical system that we shall have. It's that simple.
Joseph Lee Pugh, Diamondhead, MS

Next Installment of Hillary Care. Why did the "simple insurance portability" bill, HIPAA, pass almost unanimously in 1996? It also contained, verbatim, Hillary's "fraud and abuse" legislation that makes every doctor a virtual criminal, and the "privacy rules" that are driving us crazy now, and the "electronic payments" provisions that will grind doctors' payments to a halt in October. The AMA actually denied the presence of the privacy rule (that AAPS pointed out before passage) until 1998 and didn't use the word "onerous" until 2000. Now we have this bipartisan "simple drug bill" that we know is too expensive and unpaid for and will drive the elderly from their private plans. It contains provision for 10 or 12 "private regional PPOs" with a "temporary right" to impose price controls. It looks a lot like Hillary's regional cooperatives. Bet that it too passes almost unanimously.
Stephen R. Katz, M.D., Fairfield, CT

Jury Nullification. After reading the June newsletter, I obtained a copy of Sparf v. U.S. 156 U.S. 51, 1895, from the internet and read all 71 pages of its century-old dense legalese. Although the Latin sometimes ran off my 40-year-old Latin register, I am reasonably sure that I tracked the document adequately. It did not actually hold that "...juries...have the right to nullify the judge's instructions on the law, but only if they didn't know about this right." The majority of the court made it quite clear that juries don't have the right to nullify the judge's opinion. The opinion only notes that juries have the power to do so, and makes the distinction with care. It was implied though not specific in the majority opinion that a judge is under no obligation to inform juries of their power. The dissenting opinion was close to sparkling in its correctness about the rights of juries and the salubrious reasons for these rights in the defense of liberty....

I've watched with dismay attacks on the jury system: grand juries that are the pet of prosecutors, contracts that require binding arbitration, proposals for "professional" juries, reductions in the size of juries, systematic exclusions of any juror who might retain the capacity to think, and regulatory tribunals used by the likes of CMS and the IRS. Even though the legal system doesn't respect the rights of juries, it appears to be wary of the power and determined to erode it.
Hilton Terrell, M.D., Florence, SC