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AAPS News July 2016 – Discrimination

Volume 72, no. 7 July 2016

According to the dictionary or common usage, to discriminate means to make a distinction, say between right and wrong, or good quality and poor quality. Virtually every decision we make when faced with more than one option involves discrimination.

Starting with the federal Civil Rights Act of 1964, and then the Americans with Disabilities Act (ADA) of 1992, unlawful discrimination came to mean unfair or unequal treatment of an individual or group based on certain characteristics including race, sex, age, disability, national origin, marital status, religion, and sexual orientation (http://tinyurl.com/myrdqw9).

It is, however, lawful to discriminate against dog owners, smokers, or physicians (as in Coy v. NICA, http://tinyurl.com/hjjgne7), who are not members of “suspect classes” that were historically victims of discrimination.

Originally, the protections applied to “public accommodations” (AAPS News, May 2015), but the reach of government has expanded inexorably into private interactions.

The latest quantum leap by the Obama Office of Civil Rights is to interpret §1557 of the Affordable Care Act (ACA) to redefine “discrimination on the basis of sex” to include “termination of pregnancy” and “gender identity.” The Final Rule on Nondiscrimination in Health Programs and Activities (http://tinyurl.com/gvw9p4u), which takes effect in mid-July, could require any physician, medical facility, or insurance plan that accepts federal funding or assistance (including credits, subsidies, or contracts of insurance) to provide or cover treatments such as abortion, cross-sex hormones, or “gender-reassignment” surgery. Hardly anyone will be able to avoid paying for these procedures (Heritage Backgrounder No. 3089, http://tinyurl.com/guspzn7).

A practice that provides a treatment that could be used for “gender transition,” such as hysterectomy, mastectomy, or hormone replacement, could face liability if it declined to provide it for the purpose of gender reassignment. HHS declined to include a blanket religious exemption, but did insert a provision “making clear that where application of this regulation would violate applicable Federal statutory protections for religious freedom and conscience, that application will not be required.”

All covered entities (including any entity that accepts a single Medicare or Medicaid beneficiary) will be required to keep records and submit compliance reports to HHS, and every entity with 15 or more employees must designate at least one employee to coordinate compliance efforts, and adopt a grievance procedure. Violators can lose federal funding. A cause of action is created for aggrieved persons to seek civil damages in federal court.

The health rule was overshadowed in the press by the “bathroom rule” for public schools released the same day, both “affirming the president’s goal of elevating transgender protections to one of the central civil rights issues of his presidency” (Wash Post 5/13/16, http://tinyurl.com/h4mcgfd).

The rule “could affect hundreds of thousands of Americans who have been denied coverage or treatment based on their gender identity or sexual orientation” (ibid.). The effect on insurance premiums when this coverage takes effect in January 2017 has not been determined. The Williams Institute of the UCLA Law School estimates that 700,000 Americans are transgender, although there is no agreement on what “transgender” means. Between 100 and 500 “sex change” surgeries are said to be done each year, probably an underestimate. The cost of a male-to-female transition is about $40,000 to $50,000; female-to-male about $75,000 (Wash Post 2/9/15, http://tinyurl.com/zsjxj3s).

Bans against discrimination based on sexual orientation already apply for in-vitro fertilization. The “family building process” may involve three individuals: one providing the egg, one the womb, and one the sperm. This allows for “co-maternity” of lesbian partners. Legal precautions are advised with same-sex couples to keep the gamete-providing non-partner from asserting parental claims (http://tinyurl.com/juc9txg).

Medical Ethics

Sexual desegregation of bathrooms is compared with racial desegregation by Schuster et al., who write that “having one’s gender identity acknowledged and accepted in social, legal, and other settings—can greatly enhance overall psychological health.” They also predict that “being transgender, like being left-handed, may someday be recognized as merely another inherent human quality” (NEJM 6/15/16, http://tinyurl.com/zcmtykd).

Transgender issues are scientific as much as religious. Top-down “guidelines” that may be imposed as the “standard of care” call for treating prepubertal children with puberty-blocking hormones, although most children with gender dysphoria accept their biological sex by late adolescence, writes Michelle Cretella, M.D., in the summer issue of J Am Phys Surg (http://www.jpands.org). Using treatments that may cause sterility in a patient who cannot give informed consent violates international law, she writes.

Under rules of the New York City Commission on Human Rights, a psychiatrist could be heavily fined for “discrimination on the basis of gender identity” for diagnosing a man who insists he is a woman as delusional, writes Boris Vatel, M.D., in the same issue. But we cannot normalize false beliefs without painting reality itself as pathological or irrelevant, he states.

Under the pretext of fighting unjust treatment, war is being waged against traditional ethics, honesty, and science itself.

Radical Social Experiments

The issue is not bathrooms, but metaphysics, writes Robert Reilly. Attorney General Loretta Lynch told a group of transgendered people that “you are still wondering how you can possibly live the lives you were born to lead.” But the way they were born is precisely what they are trying to change, he notes. The prominence of the bathroom issue makes no sense if we do not understand the underlying “denial of nature and the substitution of pure will as the means for unshackling us from what we are.” The right to “self-identify” overrides rights grounded in the “Laws of Nature and of Nature’s God” (http://tinyurl.com/h3azobx).

Public school standards in Washington State go far beyond bathroom policy. Indoctrination about “gender fluidity” starts in kindergarten (http://tinyurl.com/jeqgu3n). Obama’s transgender plan for K-12 schooling recommends secretly excluding parents and letting school officials handle student gender identity. There’s also no role for scientific evidence in verifying minors’ claims about their self-identity. Nonetheless, failure to use preferred pronouns is “harassment” (http://tinyurl.com/hsctz7k).

The prevalence of psychiatric diagnoses and substance dependence in young “transgender women” was found to be 41.5% in one study (JAMA Pediatr 5/1/16, http://tinyurl.com/j58eukj). While carefully screened consenting adults might report satisfaction with sex-change surgery, this has not been shown to lead to better emotional health. A 30-year follow-up at the Karolinska Institute in Sweden showed an alarming 20-fold increase in the suicide rate 10 years after surgery, notes Dr. Paul McHugh (WSJ 5/13/16, http://tinyurl.com/nz2pevt).

Disguised as “anti-bullying” movements, programs to make homosexual and “gender-nonconforming” behavior “safe” fit in with the cultural Marxist agenda of undermining traditional norms and destroying the family. Dystopian novels like Brave New World portray the effects of deliberately depriving children of ties to their biological parents. In the real world, the absence of fathers, owing to progressive social policy, has had disastrous effects on millions of lives, explains Larry Elder in a video entitled “Black Fathers Matter” (http://tinyurl.com/j4e3xxb).

What happens when children are alienated from their culture and their history? Michael Chandler at the University of British Columbia studied Native communities. In some, the teenage suicide rate was 500 to 800 times the national average. In others, it was zero. The latter were from tribal councils that preserved their language and culture. Elders were respected. The youth had a story to tell. They knew who they were and where they came from; their lives made sense. In high-suicide communities, there were no tribal traditions. The lives of their youth were like “islands clustered in the middle of nowhere.” They had no narrative to tell; there was no past, “only the featureless terrain of today” (Marc Lewis, The Biology of Desire, 2015).

The alleged mistreatment of 0.5% of our population is the pretext for federally dictated fundamental transformation of education, medicine, and hence American culture—and legally mandated discrimination against any who object.

“The basis of existentialism is precisely that there is no human nature and thus no ‘feminine nature….’” [Therefore], the mammary glands that develop at puberty have no role in the woman’s individual economy: they can be removed at any moment in her life.”
Simone de Beauvoir, c. 1949

Ask the Cash Price First

A woman who was accustomed to having her treatments billed to Blue Shield of California was shocked to learn that the $269.42 she was expected to pay of her $408 laboratory test bill was nearly four times higher than the total cash price she would have paid without using her insurance. The tests costing about $80 at the insurance rate were about $15 at the cash or “uninsured” rate. The cash rate for imaging procedures is also generally much lower.

“This is one of the dirty little secrets of healthcare,” Gerald Kominski, director of the UCLA Center for Health Policy Research, explained to the LA Times. “If your insurance has a high deductible, you should always ask for the cash price” (Natural News 6/23/16, (http://tinyurl.com/jsss5f8).

If you have one of those “free” prescription drug discount cards that are sent in the mail, the same advice applies. Ask the cash price first. It may well be less than the “discounted” price.

Some cards ask you to pay $25/month to get discounts. These come from HealthAllies, created by Sen. Warren’s daughter Amelia (now funded by George Soros at her “Demos” think tank) and Andy Slavitt, writes Barbara Duck. The cards are used to gather and sell data on patients and physicians. A pharmacist explains how they work (http://tinyurl.com/juscjov).

Medicare patients get a “star” rating on their adherence from a prescription monitoring program EQUIPP. Those who pay cash are called “outliers” because there’s not enough data on them. “If you want privacy, pay cash,” Duck advises (ibid.).

Outcomes Research

We know that an enormous number of people feel great relief when they fail at a suicide attempt, and are glad to be alive years later. It is, however, impossible to ask those who die of a euthanasia regime whether they regret that decision. The underlying secular assumption of euthanasia laws is that such a question is meaningless because death is the ultimate end. So advocates do not ask Hamlet’s question: “To sleep, perchance to dream. Aye, there’s the rub,/ For in that sleep of death what dreams may come,/When we have shuffled off this mortal coil,/ Must give us pause.”

Many today believe that there is no “undiscovered country from whose bourn/ No traveler returns.” This negative presumption is faith-based, not evidence-based, and it is not falsifiable. Should “multiculturalism” include understanding of and respect for the culture in which people comprehended why Hamlet stayed his hand at the first opportunity to kill the king? (The king was at prayer, and Hamlet feared he might not be able to dispatch his soul to Hell.) Such considerations, and 18 other reasons for opposing euthanasia, are summarized at http://tinyurl.com/heqxyxp.

AAPS Calendar

Sep 22-24. 73rd annual meeting, Oklahoma City, OK
Oct 5-7, 2017. 74th annual meeting, Tucson, AZ

Father Sues to Stop Puberty-Blocking Drug

Claiming that his 11-year-old daughter (J.K.) is being directed by a group of transgender activists, her (“his”) father is suing in British Columbia Supreme Court to stop what he believes to be a dangerous drug. He says the drug was started without his consent, and that his child has not been adequately assessed by experts. Justice Ronald Skolrood ordered that a litigation guardian be appointed to help J.K. formulate views to be presented to the court about treatment. “This case is really about J.K. and his role in determining his own future,” Skolrood wrote. If mother and father can’t agree on the guardian, the mother will have the final say. Meanwhile, treatment continues (http://tinyurl.com/juax5n6).

Alliance Defending Freedom Seeks Plaintiffs

ADF, a nonprofit legal foundation, is seeking physicians to challenge the HHS gender-identity mandate. Physicians who believe they may be affected by the rule, and have faith-based objections to complying, are invited to contact attorney Doug Wardlow ([email protected]).

AAPS Files Amicus to Protect Privacy

At the request of the State of West Virginia, AAPS has filed an amicus brief requesting the U.S. Supreme Court to hear the case of West Virginia Department of Health and Human Resources v. E.H., et al. (Mo. 15-1142). This appeals a decision of the Supreme Court of Appeals of W.V. that gave “access without limitation” “to so-called patient advocates to rifle through confidential psychiatric records of identified patients.” AAPS General Counsel Andrew Schlafly argues that this violates the HIPAA Privacy Rule, which protects individual rights. These “cannot be sacrificed for a vague overall goal such as a purported ‘improvement of the quality of health care.’” The weakening of the confidentiality of the patient-psychiatrist relationship is of national importance, AAPS argues. The brief is posted at: http://tinyurl.com/gvgrzkj.

LGBTQ Compliance Grab Bag

  • The most recent Meaningful Use final rule includes a requirement that certified electronic health record (EHR) technology be used to “record a patient’s sexual orientation and gender identity in a structured way” as a “crucial step forward to improving care for LGBT communities.”
  • The D.C. City Council passed the Cultural Competency Continuing Education Amendment Act of 2015 requiring “health care professionals” licensed in the District to require two hours of CE “on cultural competency or specialized clinical training focusing on patients who identify as lesbian, gay, bisexual, transgender, gender nonconforming, queer or questioning their sexual orientation or gender identity and expression (‘LGBTQ’).”
  • Because of “enormous” health disparities (e.g. increased risk of certain cancers, abuse, and depression), failure to ask about this issue, thus missing a risk factor, could lead to a malpractice suit.
  • “Don’t forget HIPAA and state privacy laws.” Information about LGBTQ status and treatment is supposed to be confidential (Medical Practice Compliance Alert, May 2016).

HIPAA Enforcement Increasing

The Office of Civil Rights is ramping up HIPAA audits, now including business associates. The new compliance checklist contains 180 items, up from 169. OCR will probably focus on areas with the greatest number of problems found in Phase 1, including an inadequate security risk analysis, and ability to comply with the final security breach notification rule, which was not part of Phase 1 (MPCA, June 2016).

“Ignorance of HIPAA regulations is not considered to be a justifiable defense,” according to hipaajournal.com, but the minimum fine for a single “did not know” violation is $100, compared with $50,000 per violation for a “willful neglect (uncorrected)” type. The maximum total fine is the same for all types, $1.5 million. Concerta Health Services paid $1.7 million for theft of an unencrypted laptop in 2014 (http://tinyurl.com/hjmvvcf).

Despite the laws, a hacker calling himself TheDarkOverlord is offering for sale some 655,000 patient records obtained from unreported data breaches (http://tinyurl.com/zrz66cs).

Death Knells for Hippocrates

  • Canada: Bill C-14 on medical assistance in dying passed parliament and gained royal assent on Jun 17. Prime Minister Justin Trudeau’s actions in trying to squelch opposition and speed passage caused Speaker Geoff Regan to remind the House that “it is not appropriate to manhandle other members” (http://tinyurl.com/z44mn66). Trudeau said the bill is just the “first step.” Justice Minister Jody Wilson-Raybould warned that the next step could include euthanizing victims of sex abuse and veterans suffering from post-traumatic stress disorder (http://tinyurl.com/hjexkwd). The bill provides immunity from criminal prosecution for anyone participating in assisted death.Freedom to not participate is less clear: “Under our constitution, it would be up to individual provinces and territories to determine whether some medical institutions would be allowed to decline to provide medical assistance in dying. Nothing in Bill C-14 addresses this issue.” As for physicians: “There is nothing in the proposed legislation that would compel a health care provider to provide medical assistance in dying or refer a patient to another medical practitioner. Balancing the rights of medical providers and those of patients is generally a matter of provincial and territorial responsibility. However, the federal government has committed to work with provinces and territories to support access to medical assistance in dying, while respecting the personal convictions of health care providers” (http://tinyurl.com/jxh56lf).
  • Netherlands: The Dutch decriminalization of euthanasia has been expanded to include mental illness and dementia. A woman in her twenties was recently killed at her request because she was tormented by memories of sex abuse that occurred 12 years ago (http://tinyurl.com/gl2dwdz). The first mentally ill person to die by this means was a 54-year-old woman with a cleaning obsession (Daily Mail 5/13/16, http://tinyurl.com/hf89dx5). A 47-year-old mother of teenagers was killed because of intractable tinnitus (http://tinyurl.com/oslkz5z). As many as 1 in 33 Dutch lives are now ended by euthanasia. Theo Boer, the senior Dutch ethicist who supported euthanasia and oversaw the law’s introduction now advises the UK: “Once the genie is out of the bottle, it is not likely ever to go back in again” (ibid.).


New Currency. Increasingly, government is paying physicians who are in the Medicare program with rubber money—i.e. it bounces back to government. Physicians should consider that the Medicare money is only temporarily theirs. CMS also expects physicians to perform internal audits going back 6 years so as to identify and return “overpayments” (MedScape 6/1/16, http://tinyurl.com/grllgqk). If the physician undertakes this burdensome and expensive process and gives money back voluntarily, the government may not subject the physician to stiff financial penalties. What a deal! CMS is thus adding to the bureaucratic requirements that are causing physician burnout and poor outcomes.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

Sold Out. On Apr 19, AMA, ACP, AAFP, and Aurora Health Care Medical Group testified before the Committee on Energy and Commerce Subcommittee on Health. Clearly, they are vying for the $20 million MACRA doles out yearly for the next 5 years to “educate” physicians and “engage” with CMS.

Barbara L. McAney, M.D., of the AMA Board of Trustees applauded the Subcommittee for its leading role in enacting MACRA and its “current efforts to ensure the new law is a success for both patients and physicians.” She stated: “The AMA is also a grantee of the CMS Transforming Clinical Practice Initiative (TCPI). As a Support and Alignment Network (SAN) Awardee, the AMA is promoting the goals of the TCPI to the TCPI network of clinicians through education about MACRA, CME, dissemination of best practices, promotion of clinical data registry use, and provision of tools and resources on APMs [alternative payment models]” (http://tinyurl.com/jhzz7yj).
Kristin Held, M.D., San Antonio, TX

Fundamental Transformation. MACRA changes Americans from our patients to CMS and Corporation patients, and devalues physicians to the level of implementation clerks. Templates will replace the proper practice of medicine; euthanasia will be at the forefront. ACA means “affordable”—for CMS and insurers.
Joseph F. Kasper, M.D., Draper, UT

MACRA Violates Sound Economics. In my comments to CMS, I pointed out how MACRA’s transaction costs will increase the cost of care, while interfering with good care. Alternative Payment Models (APMs) turn medical practices into insurance companies—without the needed resources to manage risk. MACRA will increase errors and drive many physicians over the edge.
Holly Fritch, M.D., Leawood, KS

Civil War on Doctors. In the movie Captain America: Civil War, the UN decides that because of civilian fatalities during previous Avenger battles, the world would be safer if all superheroes voluntarily subjugate themselves to the authority of an organized government body. I couldn’t help seeing parallels: Like the Avengers, doctors are shown wreaking havoc on society. Medical errors (and therefore doctors), are the third leading cause of death in the U.S. Physicians are responsible for the opioid crisis. And why even use doctors when nurses can provide the same or better care than doctors do, with less training? So…. Let’s form a large government body to supervise doctors, laying out thousands of rules. Let’s allow that government body to keep a medical scorecard, making up the rules as we go along. Make doctors buy expensive computer systems, and then become typists and data entry clerks to make it easier on government reviewers. [Excerpted from KevinMD.com, http://tinyurl.com/hxuukr7] Rebekah Bernard, M.D., Estero, FL

Doctors Are Not Avengers. They are among the most complacent, downtrodden, disillusioned, and burned-out group on the planet. They have resigned themselves to either playing the game better than the next guy/gal (the old “I don’t have to outrun the bear, I just have to outrun you” philosophy) or they are just marking time until retirement. Countless colleagues have said, “Yeah, I agree, but I can’t opt out.” The addiction of our entire profession to the financial system of third parties, starting with Medicare, is surpassed only by that of the patient population. The government policy makers and insurance executives understand this, but the struggling addicts continue to deny it in search of their next fix. Come to think of it, isn’t that what the guys on Capitol Hill called MACRA—the Doc Fix? Do we need a 12-Step Program?
Robert Sewell, M.D., Southlake, TX

Opportunity for Success? AMA president Steven Stack claims that “historic Medicare payment policy changes [are] an opportunity for success” (http://tinyurl.com/jhn6rgn). But the methods—those of managed care—are already shown to fail. Wisconsin has the second highest medical prices in the country, behind only Alaska. Prices for 235 common medical procedures average 81% higher in Wisconsin. It is one of the states dominated by large clinics and health systems. Physicians have been accommodating to their demands for decades.

Dr. Stack said that MACRA, which “passed with overwhelming physician support,” will help foster “more sustainable practices.” That sounds as though the doctor will barely be keeping his head above water. Is that the best we can hope for now?
Albert Fisher, M.D., Oshkosh, WI

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