AAPS News January 2020 – Giving and Taking


Those who believe that by “investing” a little tax money in government programs, we will reap equitable “healthcare,” affordable housing, and college education for all, plus social justice—and that the programs will “pay for themselves” in a few years—need to re-read The Adventures of Pinocchio. The silly marionette, on the advice of a fox and a blind cat, planted his four gold pieces in the Field of Wonders, watered them, and went away. When he returned, he expected to harvest 2,000, or 5,000, or 100,000 gold pieces growing on a vine. Instead, he found a parrot and demanded to know why it was so amused: “I am laughing at those simpletons who believe everything they hear and who allow themselves to be caught so easily in the traps set for them.”

Since the government’s only product is laws, and it has a monopoly on the legal use of force, it should be obvious that whatever it gives, it must first take. It does not create, but redistributes. Much of the taking is now masked by the Federal Reserve’s creation of money—fiat dollars exchanged for real goods or services. Taxes will of course go up (AAPS News, October 2019). But that is not the only consequence. And it’s not just about money.

Is the Involuntary Way Constitutional?

The Fifth Circuit Court of Appeals has upheld the District Court decision that the individual mandate in the Affordable Care Act (ACA) is unconstitutional now that it can no longer be construed as a tax. It remanded back to District Court the question of whether the rest of ACA has to fall as a result. “Once considered essential for the law’s protections for people with preexisting conditions to work as intended,” the mandate “has since been defanged by Congress” (https://tinyurl.com/vmdv2ul).

So if the allegedly constitutional fangs are removed (and not restored by a future Congress) as a means to force people to support the redistribution scheme, what about the boa-constrictor-like mechanism of choking off alternatives? AAPS asked whether that violates the Tenth Amendment (AAPS News, June 2019).

Single-payer zealots want to bypass procedural constraints on Congress as well as the Constitution. Activist Ady Barkan tweeted, “We also need a plan for what to do in 2021 and 2022 if we don’t have 60 votes to abolish private insurance…. Today, @ewarren laid out a plan to get 100 million ppl onto Medicare in first 100 days, via executive action and 51-vote reconciliation” (https://tinyurl.com/vbpwqz7).

Who Gets, and What Is Taken?

ACA defenders who claim that the Fifth Circuit decision places the health coverage and peace of mind of millions of Americans at risk include California Attorney General Xavier Becerra; Chip Kahn, CEO of the Federation of American Hospitals; Rick Pollack, CEO of the American Hospital Association (AHA); Margaret A. Murray, CEO of the Association for Community Affiliated Plans; and Bob Doherty of the American College of Physicians (ACP). Andy Slavitt, former acting commissioner for CMS, called the ruling “lawless” (tinyurl.com/tj3aqhe). Slavitt, previously an executive at Goldman Sachs, UnitedHealth Group, and Ingenix (tinyurl.com/rxmtbl8) has now started a venture capital firm targeting care innovations for Medicare and Medicaid recipients—and the $1.2 trillion in spending passing through the programs (https://tinyurl.com/y4zd5k2b).

ACA “healthcare dollars” go first to giant entities that administer the largesse, not directly to people who need or provide actual medical goods or services—such people lose in many ways:

Cutback in services: Since 2016, the U.S. Veterans Administration (single payer for veterans) has cancelled 250,000 radiology orders (USA Today 12/12/19). This saves not only the cost of the tests but of timely treatment of pathology the tests might find. Medicare is also erecting more barriers (see p 3).

Jobs: Joe Biden’s campaign warned that Medicare for All would kill 2 million jobs. Elizabeth Warren said some displaced persons might work in auto insurance or Medicaid.

Discretionary income: With Medicare for All, premiums, co-payments, and deductibles would go away, but the tax increases would exceed the savings for most, so that three out of four Americans would be financially worse off (tinyurl.com/vuzh499).

Affordable insurance: Individual insurance enrollment of persons not qualifying for subsidies dropped by 1.2 million or 24% between 2017 and 2018. While out-of-pocket spending for medical services, drugs, and supplies has increased only slightly since 2008, spending for health insurance more than doubled. Some plans pay $0 for out-of-network services and are worthless when traveling (https://tinyurl.com/v32avfq). Also see p 3.

Our children’s future: The Fiscal Doomsday machine is accelerating. Even without Medicare for All, the publicly held debt is heading toward a crushing 150% of GDP. Even at sub-basement rates, mandatory interest is careening toward $1 trillion per year (https://tinyurl.com/wgm5od6).

Freedom: In 1949, the AMA produced a pamphlet entitled “The Voluntary Way Is the American Way,” and called national health insurance and Medicare “socialistic.” This is now called a “charged term,” and socialist Bernie Sanders “would still keep the means of production—namely, doctors and hospitals—private. In that sense, Medicare-for-all isn’t socialism,” states the Washington Post (https://tinyurl.com/svaz8bc). But is involuntary, based on taking, and under tight government control now the AMA way?

AMA Releases 2020 CPT® Code Set

The 2020 Current Procedural Terminology code set, the “health system’s common language,” includes 248 new codes, 71 deletions, and 75 revisions. Additions include new services sparked by novel digital communications tools, such as patient portals (https://tinyurl.com/yyayjhrq). In this way, the AMA exerts significant control over the practice of medicine, as Medicare and many other insurers will not pay for procedures not recognized with a code, and coding errors may be punished as fraud.

After more than 25 years of physician complaints, AMA is reportedly working with CMS to simplify its E/M office visit codes and make them clinically relevant (tinyurl.com/re9k4cw).

Unique Patient ID Held Off for a Year

Thanks to the efforts of the Citizens’ Council for Health Freedom, the appropriations bill continues the ban on funding for the federal unique patient identifier (UPI), initiated by former Rep. Ron Paul, that has been in effect for 20 years. In February 2019, CCHF asked the HHS Office for Civil Rights (OCR) to reestablish the patient consent requirements Americans lost under the HIPAA “privacy” rule  (https://tinyurl.com/sbcf5mp).

Pre-existing or New Conditions in Medicare

Medicare Advantage (Part C) enrollees may enjoy their “free” gym memberships, but if they get sick, out-of-pocket costs can soar. Getting out of MA may be very difficult. Acceptance in a Medigap plan is guaranteed only within the first 12 months of enrolling in Medicare at age 65. Medigap plans in all but four states can and do reject people once they have a condition, or  they charge exorbitant premiums. MA plans also may have very narrow networks and poor service for members who need physical therapy or rehab (https://tinyurl.com/stm4t5y).

At Least 20% of Medicaid Payments Improper

When ACA Medicaid expansion started in 2014, the Obama Administration stopped auditing states’ Medicaid eligibility determinations. The goal was to gain public support by signing up as many people as possible. Now that audits have re-started, it appears that the expansion has more than tripled the percentage of improper spending in the program, from about 6% to more than 20%, an amount that probably exceeds $75 billion.

Because states receive a much higher rate of reimbursement for expansion enrollees, there is also incentive to game the rules, as by reclassifying some previously eligible persons as expansion enrollees, greatly increasing federal funds flowing into the state. Managed care reaped substantial profits from this cash cow, in part because of large upfront government payments for enrollees who did not receive many medical services, write Brian Blase and Aaron Yelowitz (WSJ 11/18/19,  tinyurl.com/qklgymc).

“Plato, Aristotle, and Polybius laid out the conditions by which a democracy degenerates into tyranny. An ambitious man or faction, dissatisfied with the normal political processes for obtaining and using power, will win over the masses by redistributing property from the rich to the poor.”

Bruce Thornton, https://tinyurl.com/yx5rjx6s

Detecting and Reporting Iatrogenic Harm

According to a statement from the Exploring, Enhancing and Empowering in Erice, Sicily (4Es forum, cebm.net/4es/), in October 2019, “Harms from medicines and devices are increasingly recognized as important causes of morbidity and mortality worldwide.” Recommendations included: “Shift[ing] the culture within regulatory and health care management systems from one of secrecy to one of transparency” and “recogniz[ing] case reports, including those written by patients, as a valid and important form of evidence of harms” (https://tinyurl.com/s5y2sz4).

Rebecca Chandler of Uppsala Monitoring Centre, lead signatory on the statement, writes on the importance of patient stories in pharmacovigilance. She points out that the statement “the plural of anecdote is not data,” often used to support “evidence-based medicine,” is the opposite of what Raymond Wolfinger, a political scientist at the University of California at Berkeley, actually said: “The plural of anecdote is data” (tinyurl.com/smmoc64).

“Energetic measures, including active engagement with patients, are needed to reduce our ignorance about many aspects of patients’ experience of medical therapies…, especially the extensive harm known to be caused by medical interventions,” writes Ivor Ralph Edwards in Drug Safety (tinyurl.com/vokrs8c).

Vaccine Issues

Acute Flaccid Myelitis: AFM, which would have been diagnosed as polio in the 1950s, is surging, with 362 U.S. cases reported in the years 2014–2018. Six studies have linked AFM to vaccines, especially influenza. Also associated: HPV, hepatitis A or B, rabies, measles, rubella, yellow fever, anthrax, meningococcus, and tetanus vaccines. Confirmed cases clustered around back-to-school enrollment shots (https://tinyurl.com/qkqa2ao).

Adverse Reactions Go to ER: Many pediatricians say they have never seen an adverse vaccine reaction. But most cases of high fever, seizures, lethargy, screaming, or spasms present in the emergency department. An ER nurse claims to have seen hundreds, but writes anonymously, evidently to protect his career. “I have, first hand, seen blatant cover ups from doctors. I have seen falsification of medical records and documentation via intentional omission,” he writes. “I am the ONLY nurse I have EVER met that files VAERS [Vaccine Adverse Event Reporting System] reports. I also have NEVER met a doctor that filed a VAERS report” (https://tinyurl.com/u5drnkx).

Following the Money: New York legislators, heavily supported by public-sector unions, are leading the charge to remove exemptions to mandatory vaccines. N.Y. teachers pension funds are heavily invested in vaccine manufacturers (tinyurl.com/se8vxhk).

AAPS Calendar

Mar 20-21. Workshop, Board Meeting, St. Louis, MO, https://aapsonline.org/thrive2020

Sep 30-Oct 3. 77th Annual Meeting, San Antonio, TX

Single-Payer Roadblock

As of Jan 1, Medicare (single payer for the elderly) is requiring physicians to consult Appropriate Use Criteria (AUC) for advanced diagnostic imaging, including computed tomography, magnetic resonance imaging, nuclear medicine, and positron emission tomography. Claiming that more than 14% of studies were deemed inappropriate, a large health system has notified all “ordering providers” and radiologists that they must use AUC for ordering outpatient studies. “Reading providers” are “responsible  for documenting that the ordering provider consulted AUC for both professional and technical claims for Medicare reimbursement.” Imaging orders sent by the Epic electronic health records (EHR) system will be automatically screened for AUC.

Tip of the Month: If you are participating in the Merit-based Incentive Payment System (MIPS), be aware that CMS has begun audits for backup on your attestations. Be sure to understand every detail of the requirements. For example, documentation of current medications must name the route of administration. For the Quality measure “Controlling high blood pressure,” auditors may look for documentation of the date of the onset of the high blood pressure. For Improvement Activities, document the date the activity commenced, references to meetings where the activity was discussed, and remediation and retraining methods. For Promoting Interoperability, take screen shots to prove functionality of the EHR on the first day of the 90-day reporting period (DecisionHealth, Medical Practice Compliance Alert, December 2019).

Had enough? See: https://aapsonline.org/opting-out-of-medicare-a-guide-for-physicians/.

More Compliance Pitfalls

EHR Attestations: Doctors who received incentives from CMS to implement an electronic health record (EHR) need to be sure they are complying meticulously with meaningful use attestation requirements. Missteps such as failure to conduct a security risk analysis may prompt a qui tam action for a False Claims Act violation. According to attorney Colin Jennings of Squire Patton Boggs, there is more scrutiny of the FCA in new areas. “You’re seeing more people joking that they can’t wait to be a whistleblower and retire” (MPCA, November 2019).

Minor Affiliations Can Put Enrollment at Risk: Under a new CMS rule finalized in September, all-encompassing exclusions for 3 to 10 years are calculated to save the government $47.4 billion over 10 years (ibid.). A provider or supplier submitting an initial or revalidating Form CMS-855 application must disclose whether it, or any of its owning or managing employees or organizations, currently has, or within the previous five years, has had an affiliation, even very modest, with a currently or formerly enrolled Medicare, Medicaid, or CHIP provider with any of the defined disclosable events. These include any uncollected debt of any amount—even if being repaid or appealed—or payment suspensions from a federal health program (tinyurl.com/vhw3hpp). CMS utilizes more than 300 different state and federal databases to perform continuous license and background monitoring. It has conducted nearly 230,000 clinical location site visits and more than 2,000 fingerprint checks since 2011 to help remove bad actors (https://tinyurl.com/tyknthv).

Flashback: The Johnson Impeachment Precedent

 Andrew Johnson had been Vice President for barely a month when Abraham Lincoln was assassinated in 1864, and his battles with Congress started on Day 1. Johnson agreed with Lincoln that the Confederacy should be swiftly and gently reintegrated back into the Union, whereas the “Radical Republicans” in Congress wanted to punish the South. The tenth charge of his Articles of Impeachment in 1868 cited an 1866 speech in which  Johnson had said,  “God willing, with your help I will veto [Congress’s] measures whenever any of them come to me…”

The precedent for impeaching a President on flimsy charges, in what amounted to an attempted coup over obstruction of the congressional agenda, was set 150 years ago, writes Simon Black (https://tinyurl.com/rpel3gc).

Court Blocks Association Health Plans

About 30,000 Americans could lose their association health plans as Democrat-led states seek to block Trump Administration regulations seeking to give people cheaper options. Trump’s AHP rules allow people who are either self-employed or who work for small businesses, many of whom earn too much for federal subsidies for expensive ACA plans, to band together to obtain plans comparable to the workplace coverage 160 million Americans currently get. These accept all patients regardless of preexisting medical conditions. Opponents call them “junk insurance” and an attempt to evade ACA “protections” (tinyurl.com/rkg8ysz).

AAPS Amicus Supports Safety Rule in Abortions

AAPS filed an amicus brief in the U.S. Supreme Court in one of the biggest cases of the year, June Medical Services v. Gee, No. 18-1323, which challenges a Louisiana law requiring abortionists to have admitting privileges at a nearby hospital.

AAPS notes that this requirement is identical to the rule that governs physicians who perform other out-patient procedures in an ambulatory surgery setting. The complication rate for procedures done at ASCs is 0.1%, which is lower than the (likely understated) complication rate of up to 0.5% for abortion. Hundreds if not thousands of women are hospitalized each year for abortion complications, and few states mandate reporting them.

Because of anticipated use of anxiolytics, analgesia, or anesthesia, abortion clinics do not qualify for the exemption allowed for some office-based procedures, AAPS argues.

“[A]dmitting privileges help physicians fulfill their ethical duties to ensure the continuity of care for patients transferred to a hospital,” AAPS writes. Patients have the right to “expect that their physician will cooperate in coordinating medically indicated care with other health care professionals, and that the physician will not discontinue treating them when further treatment is medically indicated without giving them sufficient notice and reasonable assistance in making alternative arrangements for care.” As an expert witness has explained, “a doctor does not fulfill this ethical duty by sending a patient to the hospital ‘abandoned by the original provider, leaving the hospital staff to figure out…what’s going on…without the benefit of all of the information’ the doctor knows.” Thus, privileging is required for other ASC procedures.

The full brief is available at https://tinyurl.com/shkun7h


Soaring Deficit in Albany. New York State, according to Gov. Andrew Cuomo, is facing the greatest operating deficit in its budget since the Great Recession: a whopping $6.1 billion! That’s $2 billion more than projected just 6 months ago. Much of the reason is Medicaid, which covers 6 million New Yorkers at a combined cost of $74 billion to federal, state, and local governments. Gov. Cuomo, through a plan he calls “payment restructuring,” simply delayed paying Medicaid bills, letting them “roll over” to the next fiscal year, so the deficit for the current year is less. The “savings plan” is to be revealed in January (https://tinyurl.com/rmrto2j). There is talk about the State simply paying physicians and other “providers” less for treating the massive numbers on Medicaid—always a real crowd pleaser for those who believe physicians are paid too well for treating wards of the state.

The answer to the question, why is there a deficit in Albany, is actually in the Wash. Post: “Scientists Discover ‘Monster’ Black Hole in Our Own Galaxy” (https://tinyurl.com/rkhgaxs).  A massive black hole, AC-1 (Andrew Cuomo-1) has been discovered with its center in Albany, N.Y.  It has a mass 70 times greater than that of our sun, and it prevents everything from escaping, especially money that state residents have earned. Forget about CO2; this is a real crisis. Where is young Greta Thunberg? If nothing is done about this “black hole” crisis, which is entirely man-made, then future generations will be left penniless and will die! 

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

Complexity. It is frightening how much of this society devotes itself to making things more complex. The economic survival of legions of government employees and swarms of consultants depends on leaching cash out of those who earn it. “Healthcare” is a tropically warmed Petri dish for infection with entities whose instinct is simply to complicate, muddy, obfuscate, gratuitously dissect, and gum up any pursuit. How many “policy experts” would be rendered unnecessary by widespread adoption of direct primary care? There is a huge potential trap for DPC as large corporations try to enforce ObamaCare stupidity in the DPC office, providing another line of attack against the free association of patients and physicians. As DPC grows in popularity, Big Insurance, crony corporatism, and naked government force will try to shut it down. Complicating the simplicity of the DPC model is nothing but an effort to end it (tinyurl.com/ry5hxt7).

Pat Conrad, M.D., excerpted from Authentic Medicine 12/2/19

Time to Stand Up. It seems that every year brings  new unfunded mandate. Physicians are always the good guys, the ones who, when payments are cut, are reduced to plaintively requesting, like Oliver Twist, “Please, sir, I want some more.” Medicine is the only U.S. enterprise that regularly receives a cost-of-living decrease. Remember that moment in every Popeye cartoon when that sailor reached for his spinach and said, “That’s all I can stand ’cause I can’t stand no more”? Physicians are notorious for whining—and not winning. Will we take action—or settle into Kubler-Ross Acceptance and simply watch the sunset?

Arthur Fougner, M.D, excerpted from MSSNY eNews 11/1/19

Counterfeit Overdoses. The medical examiner has attributed more than 30 deaths in Maricopa County, Arizona, over 18 months to counterfeit Oxycontin pills laced with fentanyl that were manufactured and smuggled into the United States by Mexican drug-trafficking organizations. Nearly 75% of the overdoses  also contained dipyrone (metamizole), a nonopioid analgesic banned in 1977 because of occasional agranulocytosis and other adverse effects (tinyurl.com/svcyebd). I have seen comparison photographs of real and counterfeit tablets side by side, and they are indistinguishable. Intelligence reports clearly state they are both made on the same type of machinery in different locations. There is reason to suspect that some overdose deaths attributed to prescription Oxycontin are/were actually counterfeit. Uninformed jurisdictions could easily make such an error.

Zack Taylor, NAFBPO.org

A Health Insurance Agent’s Perspective: In 1983, when I sold my first medical insurance plan to a 33-year-old man, he chose a $250 deductible and $1,000 copay basic plan with a premium of $27 a month from highly rated Fireman’s Fund. He could see any doctor almost anywhere. 

About a year later, the first PPO plans had guides to doctors and facilities the size of small phone book. At that time, you could call a doctor and talk to him on the phone.

Medigap Plan F resembles the first plan I sold, and it is widely accepted by physicians throughout the country. However, persons newly eligible for Medicare after Jan 1, 2020, may no longer be able to buy it, because of MACRA, but they may be able to buy something similar (https://tinyurl.com/wr2c4tc).

Over the years, networks have become so small that I stopped selling individual health insurance. Medicare Advantage programs limit one’s ability to access doctors readily, or to seek the best treatment, especially if it is in another state. I try to discourage clients from purchasing it, but it is hard to convince people that the low-deductible, no-deductible plans for Medicare can become enormously costly after a condition arises.

James Reany, CLU, ChFC, Phoenix, AZ