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AAPS News February 2017 – ObamaCare Forever?

Volume 73, no. 2  February 2017

The swamp on the Potomac is apparently deeper and more toxic than most could have imagined—and the first efforts to drain it are uncovering the perfidy of Republicans. The Party that campaigned for four election cycles on the promise to repeal the Affordable Care Act (ACA) can’t seem to find any of the dozens of repeal bills it already passed for the benefit of Obama’s veto pen. The new strategy is to promise is to Repeal and Delay—until a “TrumpCare” replacement can be agreed upon.

One Senate “Replacement” bill, the 73-page Patient Freedom Act or PFA (http://tinyurl.com/zejs2t9), should really be called the “Obamacare Forever Act,” writes Philip Klein (http://tinyurl.com/jumtq7z). States could “choose” to stick with  ACA or try a “free-market” alternative (while its residents still have to pay for ACA). PFA would keep ACA taxes and most spending, including 95% of the subsidies, and the Exchange infrastructure. Costly insurance regulations would still be imposed at the federal level. While claiming to eliminate the individual mandate, PFA replaces it with something worse: Opted-out states could receive federally funded health savings accounts (HSAs) for individuals—IF they auto-enroll residents in a state-qualified high-deductible health plan. PFA makes just enough changes to enable Democrats to blame the “free market” for failure.

The PFA is being proposed by Sen. Bill Cassidy (R-LA) and Sen. Susan Collins (R-ME). Although he has been in the Senate for only two years, Cassidy was picked by Majority Leader Mitch McConnell to lead a repeal/replacement effort. It looks as though the tax hikers have won, writes Ben Domenech, which means giving up on full repeal (http://tinyurl.com/h89qn5v).

Another feature, which neither Collins nor Cassidy has confirmed or denied, is that the PFA would actually expand taxpayer funding of abortions, writes Susan Berry (http://tinyurl.com/j3bofgv). It bypasses the Hyde Amendment because funding for the Roth HSAs would come through the Treasury Department via the IRS code rather than through Health and Human Services.

Even the Democrats are no longer claiming that ObamaCare benefits everyone. ACA architect Jonathan Gruber admitted to Tucker Carlson on Fox News that “our law was never intended to help everybody.” He also admitted that the tax increases hurt “wealthy Americans” and that young healthy persons were hurt because the law eliminated “discriminatory” health insurance (http://tinyurl.com/jb5zc9d).

Who has been helped? Some cancer patients gained coverage.   (Others, invisible and difficult to count, lost their pre-ACA coverage or are in a narrow ACA network that excludes the best cancer hospitals.) But the major beneficiaries of $1 trillion in federal spending will not be on television. Hospitals have seen their uncompensated care burden drop by $10 billion, probably calculated from grossly inflated Chargemaster rates, over the period 2013-2015 (Sommers and Epstein, Harvard School of Public Health, NEJM 1/25/17). This is the only dollar figure related to spending on actual care mentioned in the report by the White House Council of Economic Advisers (http://tinyurl.com/jvyjedm). What is happening to the rest of the estimated $1,000 billion?

The information technology vendors, managed-care administrators, data brokers, Big Pharma, AMA, et al. will be making their pitch to the congressmen whom they own behind closed doors.

… Or the Beginning of the End?

President Trump immediately kept his promise to begin dismantling ACA by issuing an executive order “to take all actions consistent with the law to minimize” the economic burden of the law “pending repeal.” While his authority is limited, he could virtually end the individual mandate by granting hardship waivers, as “hardship” is undefined in the law, states Larry Leavitt of the Kaiser Family Foundation (http://tinyurl.com/za6azaf). Trump also ordered a freeze on all regulations not yet in the Federal Register, pending review. [Alas, too late for MACRA.]

The Senate narrowly (51-48) passed a resolution to expedite use of the filibuster-proof Budget Reconciliation process to repeal tax and revenue-related provisions of ACA.

Some people still think that ACA could somehow still be made successful. But we’re in 1969 of the “Vietnam War” called ObamaCare, which cannot be won, writes Jack Perry. Back then, the government predicted dire consequences if the war was not won. Now we hear another shrill “Domino Theory”—millions of people losing their “healthcare” if  ACA is repealed. But ACA will collapse, Perry writes, and the only question is how many more billions will we throw away before the 1973 Cease-Fire.

“People are not entitled to health insurance that creates higher costs for everyone to the point others might lose their own in the future. How, exactly, does it make sense? …That’s Health Musical Chairs…. It is not justice…to force everyone to buy into your flawed system because, you say, it won’t work otherwise,” Perry states (http://tinyurl.com/gvet4pg).

The intended congressional kick-the-can strategy would not have extracted a dime from the $200 billion/yr in new money ACA is pumping into the healthcare cartels and their army of lobbyists, writes David Stockman (Contra Corner 1/11/17). “But the Ryan-McConnell scam team didn’t reckon with the new sheriff in town.” Nevertheless, Trump is also caught in the giant inherited Debt Trap and the “run-amuck third-party payment system that has been metastasizing for more than half a century.”


Is Repealing ACA a “Death Sentence”?

About 24,000 lives each year have been saved by ACA coverage expansion, estimate Sommers and Epstein (op. cit.). Harvard professors Woolhandler and Himmelstein, diehard single-payer advocates, claim that 43,000 additional deaths per year would result from loss of coverage due to ObamaCare repeal. The Daily Kos ups the estimate to 65,000. The estimates are based on observational and quasi-experimental studies, rather low on the evidence-based medicine hierarchy, notes Chris Conover (Forbes 1/30/17, http://tinyurl.com/jo6j8ya and 1/31/17, http://tinyurl.com/zze5e3f). A key comparison is between county-level all-cause mortality in New York compared with Pennsylvania, from 1997-2007, 5 years before and 5 years after N.Y. (but not Pa.) expanded Medicaid to childless adults. Mortality fell more in N.Y. Mortality also fell more in Massachusetts after the introduction of RomneyCare than in matched counties in other states.

As Conover observes, other things besides coverage might have been different, and Medicaid expansion was not associated with better outcomes everywhere (e.g. Oregon). Avik Roy suggested that Massachusetts, a wealthier state, responded differently to the Great Recession. One might also suggest that New York has a higher prevalence of AIDS, and AIDS-related mortality was trending downward. The data from which the tens of thousands of “death sentences” are extrapolated have no information on cause of death or treatment received. Coverage is equated to care.


The Flight 93 Election

In September 2016, “Publius Decius Mus” wrote for the Claremont Review of Books that in the election the choice was to “storm the cockpit or die” (http://tinyurl.com/gtugxd3). He noted the conservative point that a Trump could arise only in a corrupt republic in corrupt times. “It is therefore puzzling that those who are most horrified by Trump are the least willing to consider the possibility that the republic is dying.” Things are really that bad, he states. Conservative intellectuals and politicians have accepted their status on the roster of the Washington Generals of American politics—their job is to show up and lose.

While worse than imperfect, Trump is the first candidate in at least seven election cycles to stand up and say “I want to live…. I want my country to live. I want my people to live. I want to end the insanity,” Publius states. In corrupt times, it takes a “loudmouth” to rise above the din of The Megaphone.

In reply to a barrage of outrage (http://tinyurl.com/zwxk7c2), Publius writes: “The professional Right (correctly) fears that a Trump victory will finally make their irrelevance undeniable.” The U.S. is now ruled by a “transnational managerial class in conjunction with the administrative state” —abetted by Ryan et al.


“Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

“We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all…. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.”                                       —Frédéric Bastiat, The Law, 1850



  • $3.2 trillion: Record-high level of U.S. “healthcare” spending in 2015 (Wash Free Beacon 12/4/16, http://tinyurl.com/j36y9f2)
  • 40%: Increase in emergency room use by patients who won Oregon’s lottery to get Medicaid coverage (NEJM 10/20/16)
  • 93%: Votes cast for Hillary Clinton in D.C. In general, the wealthier the state, the more votes were cast for Clinton. In 2008, Obama got about the same support in wealthy states, and 92% of the vote in D.C. (http://tinyurl.com/z8alfc7).
  • $95,150: Pharmaceutical industry contributions to California senator Dr. Richard Pan, who carried S.B. 277, removing all but medical vaccine exemptions (http://tinyurl.com/pr6f6kr)
  • 15%: Respondents to a National Public Radio poll who said they benefited from ACA vs. 26% who said they were directly harmed by the law (Townhall 1/11/17, http://tinyurl.com/gvn7nyz)
  • $500 billion: Margin debt in late January; cf. $380 billion at 2007 stock market top (James Cook Market Update, late 1/17)
  • 34%: U.S. population in private labor force (U.S. BLS)


A Right … to “Coverage”?

Under the title “Health Care in the United States: A Right or a Privilege?” Howard Bauchner, M.D., writes: “The fundamental underlying question…was rarely mentioned during the last 8 years—Is health care coverage [sic] a basic right or a privilege?” He asks whether the U.S. is a “just and fair” society if so many individuals lack health care coverage (JAMA 1/3/17).

In 1910, at least 30% of adult males belonged to a fraternal society that provided nearly every service of the modern welfare state (Linda Gorman,  http://tinyurl.com/gn4t3rh). Just and fair?

The source of rights is apparently government, and they are not inalienable. Jonathan Oberlander, Ph.D., of UNC Chapel Hill writes that ACA’s enactment “represented a major step toward making health care a right” in the U.S. Now health care reform appears to be moving backward: “What is certain is that Obamacare as we know it will end” (NEJM 1/5/17).

As John Graham has pointed out, there is no right to medical care in Canada’s single-payer system (http://tinyurl.com/ha8p4h6). The government of British Columbia said so in the case of Cambie Surgical Center v. Medical Services Commission: “there is no free-standing constitutional right to health care” (http://tinyurl.com/j8enqgd). In the UK, hip and knee replacement is denied to smokers and persons with a BMI > 30. Cancer patients who pay on their own for denied life-saving drugs are expelled from the NHS for life  (http://tinyurl.com/hsm2th4).


AAPS Calendar

June 9. Thrive Not Just Survive XXVI, Cincinnati, OH.

June 10. Board of Directors, Cincinnati, OH.

Oct 5-7. 74th annual meeting, Tucson, AZ.


Hillary Rule Does Not Apply

The FBI, according to James Comey, declined to prosecute Hillary Clinton, because of inability to prove intent. However, a Medicare administrative contractor (MAC) can assume that a physician should have known about a rule or policy if CMS releases a notice even if the MAC does not post it. Denials and overpayments will also serve as red flags (MPCA, January 2017).


Hospital Must Pay Workers Who Refused Flu Shot

In a consent decree settling a federal lawsuit for religious discrimination, St. Vincent Hospital in Erie, Pa., must re-hire and provide back pay and compensatory damages to six workers it fired for refusing influenza vaccination for religious reasons. The consent decree states that St. Vincent, from now on, “shall not require proof that an employee’s or applicant’s religious objection to vaccination be an official tenet or endorsed teaching of any religion or denomination.” St. Vincent implemented the mandatory flu shot policy to receive the maximum reimbursement for treating Medicare patients, officials said in 2014 shortly after the policy went into effect (http://tinyurl.com/jp7u4ek).


Planned Parenthood Covers up Sex Trafficking

Undercover videos made by Live Action in 2011 showed Planned Parenthood employees in seven different facilities attempting to aid and abet sex traffickers who were prostituting 14 and 15-year-old girls. A former Planned Parenthood manager told Live Action that a program purportedly training employees to recognize sex trafficking was really intended to teach them how to tell when they were being videotaped or entrapped. While PP claimed to report suspected traffickers to authorities, public records requests turned up no such reports.

Nearly 30% of sex trafficking victims come into contact with PP—a rare chance to intervene (http://tinyurl.com/ztnhgfy).


Ministry of Truth Established?

Long before the “fake news”  meme began to propagate, government agencies were seeking to form a “Center for Information Analysis and Response” to pinpoint sources of disinformation and develop and disseminate “fact-based narratives” to counter propaganda. At Christmas time, Obama quietly signed the National Defense Authorization Act (NDAA), which contains the “Countering Disinformation and Propaganda Act” previously passed by the Senate. Potentially, information inconsistent with a government narrative can be treated as “foreign propaganda,” writes Tyler Durden of Zero Hedge (http://tinyurl.com/h66kmu2).


Tip of the Month:  There are good reasons for becoming a Medicare “nonparticipating” (“non-par”) physician. “Non-par” doctors can opt out at any time; “par” doctors have a window of opportunity quarterly. Patients of “non-par” physicians can become accustomed to paying the doctor. The terminology, however, is deceptive. “Non-par” doctors really are still “participating” in all the Medicare rules. A physician will not be able to avoid MIPS adjustments by going non-par (Q18, http://tinyurl.com/zjf5kdt). Address MIPS questions to [email protected].


Professional Ethics and Corporate Practice

The Corporate Practice of Medicine (CPOM) doctrine is still enshrined in law in 30 states, although some view it as an odd holdover from the 19th century, and there are many business arrangements designed to skirt it (http://tinyurl.com/har9gsc).

The principle is that physicians must make decisions autonomously. A business corporation must not practice medicine or employ physicians or others to do so, lest clinical considerations be subordinated to commercial concerns and profits.

The fourth of the AAPS Principles of Medical Ethics states that: “The physician should not dispose of his services under terms or conditions which tend to interfere with or impair the free and complete exercise of his medical judgment and skill or tend to cause a deterioration of the quality of medical care.”

Consider the influence of the hospital employer, UnitedHealth Group, ACA’s accountable care associations, and MACRA’s Alternative Payment Models.

Similarly, the American Bar Association has long opposed non-lawyers’ investing in law firms. The ABA now has, however, a working group in its Commission on the Future of Legal Services to consider relaxing this policy. Physicians might like this response: “On behalf of the Section of Family Law, we pose the following question: WHAT PART OF ‘NO!’ DO YOU NOT UNDERSTAND?”—adding that they are “unalterably opposed to these repeated, previously failed efforts to foist ABS [alternative business structures] upon our profession or our ethics.”

ABA officialdom is looking for the “latest evidence” to counter this “reflexive” rejection, and wants to “take ownership” of “disruptive forces of change” (http://tinyurl.com/jzk2ayd).


Organized Medicine Protests Travel Ban

The Trump Administration’s 90-day ban on travel from seven countries that sponsor terrorism, all of which happen to have Muslim majorities, has been officially opposed by more than 30 national medical societies. They deplore “discrimination in any form.” The AMA notes how dependent the U.S. is on international medical graduates: one in four physicians practicing in the U.S. is an IMG (http://tinyurl.com/gnhcc8v). (The  ban does not apply to legal permanent residents.) As major residency programs express concerns about staffing, we should note that hundreds of American medical graduates each year cannot find a residency and hence cannot practice (http://tinyurl.com/z4p8wvy).


Flashback: Prince Metternich Nails It

Austrian statesman Metternich said in 1834: “The entire difference between enlightened politicians and the advocates of violent measures may be exemplified by the difference in the…singular and the plural of the word Reform. A man who…exclaim[s] “I am for Reform” is a revolutionist…,  but the term reforms means the salutary removal of certain impediments to the welfare of society…. Those who were always crying out for liberty, wanted…a general licence to gratify their individual desires and passions, and moreover power to tyrannize over others; but the plural sense, liberties, did not exclude that protection which good laws and wise social arrangements afforded to every virtuous citizen (wmbriggs.com/post/19756/).



Hospitals Pay Physicians in Rubber Money. Like money from CMS (AAPS News, July 2016), physicians’ bonuses paid by hospitals might also be clawed back. Erie County Medical Center (ECMC), the main hospital for Medicaid in the Buffalo area, receives a base payment of $16 million/year from the county, but then often asks for tens of millions more (http://tinyurl.com/jrn9x27). Last year, the New York state auditor found that some physician incentive bonuses (http://tinyurl.com/hhvfxdq) were not properly justified; $1.7 million had been paid to 16 physicians (on average, $106,000 each). Moreover, it appears that some bonuses were paid on the basis of whether the hospital thought the physician was a team player. Such a situation is ripe for abuse and total control over the practice of medicine. A major pitfall in working for a third party such as a hospital is that it can ask for its money back—as ECMC did. Also, I have been told by area physicians that insurers prohibit physicians on their panels from using any money they earn from the company to lobby against hospitals.

Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY


The Money Tree. Medicaid is a big and profitable business—for those who have influence with people holding the strings to the public money. Hospitals are very, very good at that. The Greater Dayton Area Hospital Association (GDAHA) formed the precursor to CareSource, the huge Medicaid HMO. I suspect that GDAHA is still largely run by hospitals, to siphon money into hospital coffers, at the direct expense of physicians. CareSource takes about $3.5 billion annually from the state, and buys up physician practices, imaging centers, and ambulatory surgery centers. It jacks up the prices sky high by instituting site-of-service charges. It contributed hundreds of thousands of dollars to the implementation of ObamaCare. And it contributes to legislators’ re-election campaigns. It can get rid of pesky legislators who might propose things like price transparency,

Kenneth Christman, M.D., Dayton, OH


The National M.O. The analysis above describes the modus operandi used nationwide. Some doctors—the insiders—are getting huge bonuses. The hospitals are mining Medicaid. The county and the taxpayers are being bilked. Legislators fear to speak out.

Albert Fisher, M.D., Oshkosh, WI


Defund SIM. Unless HHS dries up Medicare/Medicaid funds to  the State Innovation Models Initiative, we are going to have ObamaCare even if Congress repeals the insurance portion.

Susan Israel, M.D., Woodbridge, CT

The Folly of “Reaching across the Aisle.” Conservatives are betrayed by their supposed allies and opposed by a virulent enemy ideology. They need to identify the enemy, then act to defeat it—not just slow it down. Socialist tyrannies are monochromatic, lethal, and most of all relentless. Their operatives must be neutralized and eliminated from positions of influence for peddling a noxious, misanthropic ideology—deterministic, amoral, statist socialism. Otherwise we face what we always face with an insurgency—they use peace to rearm and energize. As  David Solway writes in his essay “United We Fall” (http://tinyurl.com/zfvsqdk), “Beware of unity with those who are wedded to sowing discord.”

John Dale Dunn, M.D., J.D., Brownville, TX


Alternative to Hospice. While there are a few openly pro-life hospices, most of the hospice industry has been tainted by the euthanasia zealots. Many patients are refusing to enter hospice because of the threat to their lives in a hostile environment. One patient with heart failure, who was not imminently dying, was told by three different hospice agencies that she would have to give up her diabetes medications. An alternative is stand-alone palliative care specialists or agencies. A Mar 4 conference near Madison, Wis., will present a pro-life perspective on end-of-life care (http://tinyurl.com/zkxe2cl).

Ron Panzer, Hospice Patients Alliance


The State of Science. The government sets the agenda for almost all science. In cases of ideological bureaucracies like the EPA, “the” science is largely settled in advance and then farmed out to compliant money-universities for “validation.” The mark of a “good” scientist is how much money he brings in. Yet the culture views science with great awe. Everything is supposed to be scientific. Hence the Cult of Measurement with endless questionnaires with pseudo-quantified answers. Scientism prevails.

William Briggs, Ph.D., wmbriggs.com


Bullfight for Evidence. Early June was a chatterbox about evidence-based medicine (EBM): an article on its limitations (NEJM 6/3/16) and a rebuttal from an established bull in the China shop (“Wrongly Tarnishing the Gold Standard,” http://tinyurl.com/j93g5hw). But who gets to define “hard” and “soft” evidence? Every politician knows that the pathway to policy acceptance begins with the testimony of a single human being. Big data and megatrials of organized clutter appear helplessly boring alongside the recent experience of a friend. The medical system is deep in a money pit with numerous contract research organizations. The bulls are relentless; but we hold the matador’s red cape.

Rocky Bilhartz, M.D., bilhartzmd.com/?p=356

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