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A Voice for Private Physicians Since 1943

AAPS News June 2016 – Refuse to Enable Politicized Medicine

Volume 72, no. 6 June 2016

Act I of the saga to socialize medicine and destroy private medicine in America arguably began in 1965, with the passage of Medicare, then Medicaid. Almost immediately, the cost escalation began, as predicted by AAPS. Before 10 years had passed, the federal government was already violating the promises enshrined in the amendments to the Social Security Act that established Medicare, §1801, §1802, and §1803 (AAPS News, July 1997, http://tinyurl.com/z8hbtxg): noninterference in medical practice or compensation, or in alternate forms of insurance.

Act II began in 1972 with “landmark” Professional Standards Review Organizations (PSRO) and more utilization review regulations, soon followed by Medicare fee caps and then the Resource-Based Relative Value Scale (RB-RVS).

Act III was the bold Clinton initiative to expand federal control into all of American medicine, using the managed-care mechanism that had gotten a federal boost with the HMO Act of 1973. While the Clinton Health Security Act itself did not pass, the backup strategy worked: the State Children’s Health Insurance Program (SCHIP) plus the incorporation of essential elements of the Clinton Plan into the Health Insurance Portability and Accountability Act (HIPAA). These included vast expansion of the funding and powers of federal law enforcement, draconian civil monetary penalties, and harsh prison sentences for “healthcare” crimes that previously might have been called billing errors. In the guise of “privacy,” the foundation was laid for forcing adoption of electronic health records (EHRs), a necessary surveillance tool.

Act IV, the Affordable Care Act (ACA), herds almost everyone into federally regulated third-party payment schemes. The costly bureaucracy is driving increased hospital consolidation, and impelling independent physicians to join Big Healthcare systems. Largely thanks to ACA, the HHS paperwork burden has increased to 700 million hr/yr, up by 300 million since Obama took office. It takes 354,500 full-time private-sector employees to comply. There are 86 new ACA rules pending, one with an estimated cost of $41.8 billion (http://tinyurl.com/hdf4vtm).

Now comes Act V, the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), with 962 pages of newly released regulations. This could be the coup de grâce.

The new physician payment rule would be “financial suicide” for small practices, said Farzad Mostashari, who spent 2 years leading the White House effort to implement EHRs. Later, he said, “I regret [saying that], a little bit…. “I don’t believe that there is a campaign out there to kill the small practice of medicine. But without real attention to the unintended consequences of [our] policies…, that’s exactly where we’re going to end up” (http://tinyurl.com/japak72).

In Table 64 of the proposed rule outlining the details of the Merit-based Incentive Payment System (MIPS), CMS estimates that 87% of the nation’s solo practices (nearly 103,000 physicians) will face a penalty in 2019, amounting to $300 million. Practices of two to nine physicians would pay about $279 million. Ingrid Lund, Ph.D., of the Advisory Board Company, told Medical Economics: “It appears the proposed rule would create a penalty system where the big guys [larger practices] will be funded by the little guys” (http://tinyurl.com/hnumryb).

The rules make the federal government and its proxies the arbiters of “quality” and “value,” and require physicians to allow CMS to access all medical records of all patients. A new class of intermediaries must keep the data for CMS audit for 10 years minimum, if not a lifetime in targeted cases, writes AAPS director Kristin Held, M.D., in a meticulous analysis of the rules (https://krisheldmd.wordpress.com/).

The Actors

“Last year, as part of a thick, complex bill amending the Social Security law, Congress adopted, almost without notice, a provision which will completely alter the practice of medicine in the United States.” It will “require you to practice according to computerized standards, rather than using your best medical judgment…. It will deprive your patients of their right to privacy. It will impose severe fines for medical innovation.”

When attendees at our Dallas “Thrive, Not Just Survive” XXIV workshop were asked what this letter concerned, they said “MACRA.” But actually the letter, dated November 28, 1973, was from 34 Congressmen to the House of Delegates of the AMA, pleading for the AMA to support their effort to repeal the law creating PSROs. Although 29 state medical associations favored this action, according to AAPS treasurer W. Daniel Jordan, M.D., the AMA leadership managed to squelch it.

As Congress predicted, “even if you help implement the law [evidently the AMA’s intention], you will not control it. The only way to avoid the law’s bad effects is to repeal it.”

Ever since then, organized medicine has filled its coffers with profits from selling compliance products, such as CPT© codes, to physicians. It did not oppose HIPAA, supported ACA, celebrated the passage of MACRA to lift the threat of fee cuts from the Clinton-Gingrich SGR formula, and is now offering “help.”

The Non-Participation Policy of AAPS

The AAPS policy since 1945—refusing to enable politicized medicine (http://tinyurl.com/9g6m6mk)—may be difficult, but the alternative is death—of private medicine and patients.

Readers Respond to “Death Care”

AAPS member Ronald Banner, M.D., who chaired Medical Ethics at the Albert Einstein Medical Center in Philadelphia for 15 years, requested to provide facts on U.S. programs for doctor-assisted death, in response to our April 2016 newsletter:

“Medical Aid in Dying (MAID), currently authorized and regulated in five states, is not euthanasia: a lethal injection, given by a third party, illegal in the US. MAID requires the person be mentally capable, terminally ill (prognosis 6 months or less), able to self-ingest the medication, fully informed of all options (hospice, palliative care, pain management—90% explore them) and free from coercion. Two witnesses must sign that the MAID request is voluntary. The physician must offer multiple opportunities to rescind the MAID request. The laws state that MAID is not suicide, assisted suicide, mercy killing or homicide: the person already has a terminal prognosis (cancer, ALS); it is the disease that is taking their life; they are simply choosing not to prolong their suffering [sic]. One-third receiving medication never use it, but are comforted knowing that option is available if the suffering becomes unbearable. Hospice patients requesting MAID suffered fewer symptoms than hospice patients not requesting MAID. In over 30 combined years of MAID, there has not been a single documented case of abuse or misuse. Currently, 70% of deaths occur in hospitals or nursing homes; 94% of MAID patients die at home. Polling supports MAID: Gallup (68%), Harris (74%).”

Margaret Dore, Esq., writes: “I am a lawyer in Washington State where physician-assisted suicide is legal. Our law is based on a similar law in Oregon…. There is no requirement that a patient be dying,… [just] a prediction of less than six months to live… without treatment…. My friend [J.H.] was diagnosed with cancer in 2000 and made a settled decision to use Oregon’s law. Her doctor convinced her to be treated instead. Today, 16 years later, she is thrilled to be alive…. While Oregon’s law does require patients to be “capable,” this is a specially defined term, which allows someone else to speak for the patient during the lethal dose request process. The speaking person is allowed to be the patient’s heir…. There is no required oversight when the lethal dose is administered. Even if the patient struggled, who would know? The death certificate is required to report a natural death. These laws allow the perfect crime.”

Ron Panzer of Hospice Patients Alliance writes that physicians who support “aid in dying” have trouble admitting that abuse and exploitation occur. A dead victim cannot testify that “I changed my mind at the end!” or “They forced me!” Patients need affirmation that their lives still have meaning.

Patients Petition Adventist Health

On Jun 9, the California End of Life Option Act goes into effect. A patient, Jennifer Warren, started a petition from patients in California, Washington, and Oregon asking Adventist Health System not to allow physician-assisted suicide in any of the 20-some hospitals or more than 275 facilities it manages. “Opting out” of the End of Life Option will give patients “the peace of mind of knowing that all of your physicians are still being held to the Hippocratic Oath and the mandate ‘to do no harm’” (http://tinyurl.com/ze7yrxx). “We need safe havens in hospital care,” commented one supporter.

Resolutions, Nominations

Resolutions must be received by July 22 to be considered at the annual meeting (send to [email protected]).

The Nominating Committee submits the following slate:

President-elect: Albert L. Fisher, M.D., Oshkosh, WI
Secretary: Charles McDowell, M.D., Johns Creek, GA
Treasurer: W. Daniel Jordan, M.D., Atlanta, GA
Directors: Caryl Hyland, M.D., Spanish Fort, AL; Thomas Kendall, M.D., Greenville, SC; Stephen Piercy, M.D., Fort Dodge, IA; Marilyn Singleton, M.D., J.D., Oakland, CA; and Tamzin Rosenwasser, M.D., Venice, FL.

Florida AAPS Opposes Phony Compromise

In the spring 2016 issue of the AAPS Florida chapter newsletter (http://tinyurl.com/zzhgorb), President David McKalip, M.D., writes: “The Florida Medical Association (FMA) has betrayed Florida doctors (again)…. The FMA actively supported legislation that prevents doctors from directly billing patients for the care they provide in emergency rooms and hospitals—even when the doctors have no contract with the patient’s insurance company.” Our newly established chapter opposed the ban on out-of-network billing and the FMA “compromise” that forces doctors into an unfair dispute resolution process.

FMA also supported MACRA and is working behind the scenes to promote accountable care organizations and EHRs.

“The time has long past to end the continued cycle of failure of establishment organized medicine. The compromise-above-principle, ‘insider baseball’ approach of the FMA has failed.”

Resources available on the chapter website, http://www.flaaps.org, include Dr. McKalip’s detailed analysis of MACRA’s effects.

How to Train a Good Dog…(Doc)

When training your dog to walk on a leash or sit or roll over, you don’t reward him with a T-bone steak but with tiny liver bits, writes Margalit Gur-Arie. As Rover gets the idea, you can substitute a pat on the head, and eventually can just assume that the dog is conditioned to do what you want.

The 962-pages of MACRA are about the $3 that Medicare may be adding to or subtracting from your fee for an office visit. Spending billions on a mechanism to pay or withhold $3 will not make a difference in Medicare’s finances. It is actually an investment in training doctors to be obedient—or be culled. It’s another incremental step in transitioning Medicare into Medicount, using other people’s money (http://tinyurl.com/j47cxyo).

AAPS Calendar

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

ACTION OF THE MONTH

Tell CMS to halt implementation of MACRA. Comment period ends June 27. See AAPS Action Alert (http://tinyurl.com/zplb9lq) for help on posting and reading comments.

Caution on Advance Directives

A Morristown, N.J., hospital ambushed a designated health care proxy with a surprise hearing on short notice, seeking a court order to withhold water from a 83-year-old woman who had no terminal illness. The issue: does a designated health care representative take precedence over an advance directive signed by the patient years earlier? Creative interpretation of terms in the advance directive by the hospital included its assertion that dementia is a “terminal disease.” The court used the boilerplate advance directive to override the decision of the health care representative. The trial judge ordered withholding of fluids and nutrition, and initially denied a request for a stay of his ruling. Remarkably, the appeals court granted a motion for a stay of the trial court ruling, and prohibited the hospital from withholding water and nutrition.

Physicians and patients should be wary of how courts may twist advance directives to suit hospitals, warns AAPS General Counsel Andrew Schlafly.

Court Acknowledges Sham Peer Review Exists

In its decision in the case of Steven I. Valfer, M.D. v. Evanston Northwestern Healthcare, the Supreme Court of the State of Illinois cited favorably the AAPS amicus brief and wrote at length about the problem of sham peer review, stating that its decision against Dr. Valfer “should not be interpreted as condoning sham peer review” (http://tinyurl.com/gpnanyy).

Unfortunately, writes Lawrence Huntoon, M.D., Ph.D., chairman of the AAPS Committee to Combat Sham Peer Review, the court upheld the appellate decision that hospitals enjoyed immunity against damages unless they physically harmed the doctor. “This is a horrible decision for doctors practicing in Illinois.”

Judge Rules Subsidies Unlawful

Attempting to get low-income people to buy unaffordable insurance, ACA provides two types of subsidies: premium subsidies in the form of a tax credit advanced each month to the insurer, and cost-sharing reductions to cushion the required out-of-pocket payments. Congress explicitly refused, however, to appropriate money to cover the latter. The Obama Administration spent some $7 billion to reimburse health plans for their ACA-required expenditures; otherwise, to cut their losses, health plans would either have had to raise premiums or withdraw from the exchanges. The House of Representatives sued.

In United States House of Representatives v. Sylvia Matthews Burwell, et al., Federal district court judge Rosemary Collyer enjoined any further reimbursements until a valid appropriation is in place, but also issued a stay of that injunction pending any appeal by the parties. Perhaps the decision “signals at least the outer limits of the Obama administration’s repeated efforts to stretch implementation of the 2010 law far beyond legal norms and the plain meaning of the ACA’s statutory text” (http://tinyurl.com/zkj4vv8).

The Administration argued that Congress would never have structured ACA to provide premium subsidies without cost-sharing reductions, so the court shouldn’t interpret ACA to yield that result. Article 1 of the Constitution is, however, quite clear: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

While acknowledging that the court was right to resist the Administration’s argument, Nicholas Bagley, J.D., writes that “it went astray in hearing the case at all.” An intragovernmental dispute, he writes, should be resolved in the political arena. In the unlikely event that the decision survives on appeal, he hopes the result—fewer people with coverage—would cause a “chastened Congress to finally appropriate the money” (NEJM 6/1/16).

Obama spokesman Josh Earnest stated: “It’s unfortunate that Republicans have resorted to a taxpayer-funded lawsuit to re-fight a political fight they keep losing.”

Potential implications are quite complex, writes Seth Chandler (Forbes 5/15/16, http://tinyurl.com/jh59nz8). Under a future Administration, high-level officials could face criminal prosecution for embezzling money from the Treasury to pay the insurance industry. Chandler notes that Marilyn Tavenner went directly from her position as CMS Administrator, where she may have played a role in authorizing billions in unlawful payments, to a job as CEO for America’s Health Insurance Plans.

Highmark Sues for Risk-Corridor Payments

Major insurer Highmark has filed suit in federal court in the District of Columbia for nearly $223 million owed under ACA, less $27 million paid plus interest and legal expenses. To compensate for losses incurred by insurers who enroll more high-risk subscribers at community-rated premiums, ACA set up risk-corridor payments. The government did not, however, collect enough money from other insurers who did relatively well on ACA business to meet its contractual obligations, and Congress did not appropriate another source of funding. The redistribution program is supposed to be budget-neutral. Another suit filed in the same court on the risk-corridor issue by Health Republic Insurance Co., seeks class-action status (WSJ 5/17/16).

Another problem with this Transitional Reinsurance Program is that it is legally obliged to remit funds to the Treasury (http://tinyurl.com/zyeo6pb), but has unlawfully decided to prioritize payments to insurers (Forbes 5/23/16, http://tinyurl.com/h6a7fnl).

Meanwhile, Highmark is cutting payment to physicians treating exchange patients 4.5% (http://tinyurl.com/zg3towr).

ABIM Compelled to Produce Documents

Late in the day before the Jun 3 hearing in ABIM v. Salas Rushford (see AAPS News, April 2016), the American Board of Internal Medicine produced many documents, likely only because the hearing was going forward. A Motion to Compel had been filed. Additional information pertaining to ABIM’s lawsuit against Dr. Jaime Salas Rushford will be required as a result of the hearing, including the recertification examination that he actually took, and the authorship field for each examination question at issue.

As detailed on http://www.doctorsjustice.com, Dr. Salas Rushford is one of hundreds of young physicians seriously harmed by ABIM, which accused them of conspiring to compromise the secure recertification examination. He is now in the discovery phase of ABIM’s lawsuit against him, and his countersuit.
Dr. Salas Rushford will speak at our annual meeting.

Erratum: Mason Rigsby writes that the source he relied on for his letter in the April 2016 AAPS News was in error. The Peter Singer appointed by Obama is a computer expert, not the Princeton ethicist, and was appointed to a national security position.

Correspondence

eMOLST. The Medical Society of the State of New York (MSSNY) is offering a webinar in MOLST (Medical Orders for Life-Sustaining Treatment, see AAPS News, April 2016) and eMOLST, for CME credit. Making advance directives easy to find and compatible across different electronic systems is a high priority (http://tinyurl.com/z9s2khf). Health plans would not want to miss an opportunity to avoid expending resources. But with all the erroneous information contained and propagated in electronic health records (EHRs), I wonder what the chances are of applying the eMOLST to the wrong person.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

EHR Entrapment. In an e-mail from CMS sent Mar 13, I was informed about a ridiculous amount of busywork for the EHR incentive program that needed to be submitted by Mar 11—two days earlier! On Apr 22, 2016, CMS sent a “first and final request” for repayment within 30 days of $18,000 paid in 2012 for 2011 Meaningful Use incentives. I’m appealing.
Craig Wax, D.O., Mullica Hill, NJ

Why I Put “Opting Out” in Quotation Marks. The CMS use of the term is misleading, as it implies that this is a reasonable, readily available, safe option for doctors who don’t agree to accept Medicare fees and rules. In fact, it means accepting CMS’s authority to set the rules of any patient/physician engagement, and colluding with CMS’s scheme to deny the patient any reimbursement.
Trevor Woodhams, M.D., Sandy Springs, GA

CMS Data Selling. CMS wants to sell both Medicare and private patient data. I feel like the guy in The Big Short running around warning people about the loose-cannon, all-for profit quant who runs CMS, Andy Slavitt. Lots of his old Ingenix (now called Optum Insights) lawsuits are still out there. Bernie Sanders was lucky when the governor of Vermont stopped the single payer, as the state would have been stuck with Optum/United, which was working hard for that contract. By the way, the family of Sen. Elizabeth Warren also has long-term ties to United Healthcare.
Barbara Duck, http://ducknetweb.blogspot.com

Can Government Make Better Doctors? No successful innovation that lowered cost or improved quality has ever originated on the demand side. For 30 years I have been dealing with non-doctors who have a deep, abiding desire to tell doctors what to do. Yet I don’t know of a single example where this has worked.
John Goodman, Ph.D., Dallas, TX http://goodmaninstitute.org/

Are the Culture Wars Over? Harvard professor Mark Tushnet has declared victory in the article “Abandoning Defensive Crouch Liberal Constitutionalism” (http://tinyurl.com/hsrygrf). Now that Justice Antonin Scalia is gone, the “Supremes” can start overturning conservative precedents. Apparently, Reality has lost, and the Lunatics have won. Tushnet favors taking a “hard line” against losers; it seemed to work against Germany and Japan in 1945.
William Briggs, Ph.D., http://wmbriggs.com/post/18834/

“Benefits” of P4P. Pay for performance requires massive data collection. U.S. physician practices now spend $15.4 billion annually on “quality” measurements. Results: no evidence of improvement (http://www.bmj.com/content/353/bmj.i2214). We have no benefit from 3 years experience in the U.S. and 8 years in the UK. So we need more of it for more time? If we remove bureaucrats and have patients pay physicians, you will find that P4P—ironically—resembles fee for service.
Rocky Bilhartz, M.D., http://bilhartzmd.com/?p=3525

Absurdity. Pharmacy benefit managers are asking for prior authorizations for albuterol inhalers! I try to educate my patients, explaining that ObamaCare forces them to give their money to insurers instead of doctors. I point out how ridiculous it is to pay thousands of dollars to insure against what might happen, when you don’t have enough money for a specialist copay to help with an actual medical problem that is happening.
Mark Mecikalski, M.D., Tucson, AZ

Are You Wrongly Labeled “Depressed”? Depression screening is a “quality” measure, which is figured into “pay for performance.” If you described a bad day, and your doctor labeled you “depressed” and offered you a prescription for an antidepressant that you never filled, the diagnosis may be indelibly in your medical record. Usually, screening is done by questionnaire, for which the insurer pays. Refuse the questionnaire!
Twila Brase, R.N., http://www.cchfreedom.org/”>Citizens’ Council for Health Freedom

AMA vs. Dissent. In a “Viewpoint,” Jeremy O’Connor, M.D., (JAMA 5/24/16) tells how he diagnosed colon cancer in a 70-year-old black man by finding anemia on a “medically unjustified” CBC. Noting the unfortunate racial disparity in colon cancer screening, O’Connor explicitly calls opposition to ACA a shameful “manifestation of widespread political racism.” [This patient had declined earlier advice for colonoscopy.] How can the AMA unify physicians if members are calling each other “political racists” for having a difference of opinion?
Kurt Miceli, M.D., Philadelphia, PA

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