When doctors advocate opting out of Medicare, naysayers often reply, “They’ll just make us participate as a condition of licensure.” It’s a variant of the argument that we should do it to ourselves first, before “they” do it to us. And of course, if everybody is doing it “voluntarily,” what’s the problem?
The threat is not merely hypothetical. As Paul Ginsburg, Ph.D., writes in the JAMA Forum, “The only long-term resolution of the [Accountable Care Organization] ACO [spending] benchmark issue is to make clinician and provider participation mandatory or make opting out and remaining under [fee for service] FFS much more onerous.”
Is there no constitutional protection? The Thirteenth Amendment, after all, goes farther than abolishing slavery, under which human beings are property that can be bought and sold:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Public Accommodations
Since at least the 16th century, English courts required certain businesses—inns, stagecoaches (and then railroads), companies that carried goods, surgeons, and even blacksmiths—to serve any customer who could pay. According to Harvard law professor Joseph Singer, the rationale was that by “holding themselves open to the public” they offered a binding contract to everyone and had to honor it (Atlantic 4/14/15).
The U.S. Civil Rights Act of 1964 enumerated the businesses it would cover (inns, hotels, restaurants and other places serving food, service stations, theaters, and arenas) and the grounds on which discrimination was unlawful (race, color, religion, sex, or national origin). While this impairs freedom of association, these businesses “are necessary to vindicate a person’s right to freedom of movement,” writes Jack Golbert, who now practices law in Jerusalem (Amer Thinker 4/16/15).
A former a Marxist, Golbert volunteered to provide legal services to the ACLU. But when asked to represent an American Nazi accused of inciting to riot, he refused. They remonstrated. “But he has a right to counsel.” Golbert said, “Maybe so, but he doesn’t have a right to me. I’m protected by the Thirteenth Amendment…. It doesn’t protect only former slaves. It also protects Jewish lawyers.” He thinks that not even the ACLU would suggest appointing a black lawyer to defend a Ku Klux Klansman accused of inciting a race riot and attempting to incite a lynching.
Golbert concluded that the right to competent counsel is not the right of the accused, but the right of society to insist on due process, to protect us from the terrors of a Star Chamber. “It is based on the bedrock notion that what the government does to him today, it can do to you tomorrow. And it will.”
The definition of “public accommodation” and of prohibited types of “discrimination” is being arbitrarily stretched by government far beyond the statute, as shown by actions against Christian [so far not Muslim] bakers, florists, and photographers who decline to help celebrate same-sex weddings.
While “the right to discriminate is the very essence of freedom,” writes Roger Pilon of the Cato Institute, and people came to the U.S. “to escape forced associations,” even religious convictions are trumped by political agendas. In enforcing its agenda, government aggressively uses its monopoly—on discrimination, like in the Jim Crow laws that required segregation.
The Right to Work—or Not
In the land of the free, one does not have to bake cakes for same-sex weddings—only if one bakes cakes for any weddings. One can avoid the destruction of one’s business by fines or lawsuits for not accepting government-mandated jobs by simply not exercising one’s liberty or property rights to perform similar jobs.
For the 29% of American workers who require a government license, the right not to work is inextricably tied to the right to work. Doctors don’t have to enroll in Maintenance of Certification (MOC®) or in Medicare, but they could lose hospital medical staff privileges or even their license if they don’t.
In Victoria, Australia, all doctors are legally required to perform or be complicit in abortions. Some doctors will quit medicine or leave the country. Canada is moving in the same direction for euthanasia as well, writes Wesley J. Smith. The College of Physicians and Surgeons of Saskatchewan has issued a draft ethics policy requiring physicians either to arrange for or perform “legally permissible and publicly-funded services,”
The ACLU is suing a public hospital district in Washington State for performing too few abortions on site, and allowing too many doctors and nurses to opt out. Public hospitals that offer maternity services are required by law to offer “substantially equivalent” access to abortions.
The “rights” of one person or group (such as slaveholders) impose duties on others. Slavery was about power and the right to take from others. The toil of slaves “liberated” owners from work. As Lincoln wrote, “You work and toil and earn bread, and I’ll eat it.” Today, he might apply the same idea to medical care, writes Howard McCrum.
A lot depends on what “involuntary” means.
Hidden Behind the SGR Repeal
Some provisions not trumpeted by the AMA or Republican majority that rammed through H.R. 2 or the Medicare Access and CHIP Reauthorization Act (MACRA):
- The Alternative Payment Advisory Committee is immune from the Federal Advisory Committee Act (FACA), through which the special interests designing ClintonCare were exposed [Title I. Sec 101 (e)(1)(G), p 86].
- An NPI is now required [Sec. 507 (4), p 231] for all drug claims under Medicare Part D, and the Secretary of HHS is given the power to determine whose National Provider Identifier (NPI) is valid [Sec.507 (4)(B)(i), p 231].
- The reason for the NPI is to enable “resource use measurement” by various practitioners with respect to “care episodes” and “patient condition groups” (p 115).
- To determine criteria for “clinical practice improvement activities” or for whether a MIPS [Merit-Based Incentive Payment System]-eligible professional” meets criteria, the Secretary may contract with “entities” (p 32). This language seems designed to strengthen MOC® and the role of medical specialty societies and the AMA to develop the metrics.
- Secretary Burwell’s goals: 85% of Medicare FFS payments tied to quality or value by 2016, and 30% of Medicare payments made through alternative payment models (APMs) by 2016, and 50% by 2018 (Sylvia Burwell, NEJM 3/5/15).
Government-Sanctioned Discrimination
- Boycotts: The governors of Washington and Connecticut and the mayor of Seattle banned official travel to Indiana because it passed the Religious Freedom Restoration Act (RFRA), which hypothetically might have led to discrimination against persons identified as LGBTQ. This real economic discrimination harmed many businesses and individuals. Many corporations followed suit. “Why should big businesses like Apple, Angie’s List, or Salesforce be able to discriminate against an entire state…, while Christian small-business owners cannot likewise decide who they want to do business with?” asks Jordan Bailor.
- Racial Preferences: A Princeton study of admissions policies at elite universities found that, on average relative to white students, African-American students received an unearned 230- point addition, and Hispanic students a 185-point addition on their SAT scores. Asians were penalized by a 50-point subtraction (LA Times 2/21/15). The California Institute of Technology, which makes no such adjustments, is considered “racist” (Access to Energy, December 2014). Could this amount to the functional equivalent of the Jewish quota that prevailed not so long ago at Columbia University?
- Disparities: Metrics for disparities will likely be an important part of the National Quality Forum’s portfolio of measurements of performance and quality that will affect physicians’ payment under new Medicare models.
♦ ♦ ♦
“Truth forever on the scaffold, Wrong forever on the throne
Yet that scaffold sways the future, and, behind the dim unknown
Standeth God within the shadow, keeping watch above his own.”
James Russell Lowell
ACTION OF THE MONTH
If you are opted out of Medicare or thinking about it, see revised AAPS guidance, including changes from MACRA, now posted at http://aapsonline.org/index.php/site/article/opt_out_medicare/.
Why Doctors Reject Medicaid
More than 300 physicians responded to our recent survey on Medicaid acceptance. Of these, 43% accept Medicaid (the national average is 69%), and 57% do not. More than 83%, however, reported that they provide pro bono care to needy patients.
Of those who do not accept Medicaid, less than 3% said they would do so if fees were increased by 50%, and about 15% said they would do so if fees increased by 100%.
The most important reason for not accepting Medicaid was costs, hassles, and threats for 58%; a principled objection for 31%; and low fees for 20%. Medicaid was the least desirable form of payment for 55% of physicians who do accept it. More than 62% of all respondents listed self-pay patients as the most desirable. Commercial insurance was the most preferred source of payment for 34%, and “traditional” FFS Medicare for 10%.
Physicians commented that Medicaid patients were often abusive, ungrateful, and demanding. They often failed to keep appointments. One remarked that filling out the 40-page application form was not worth it. Not only are there strings attached, but “now they have steel cables with felony charges any time they want.” The program enables harmful behavior, and the treatment protocols often harm patients. “You become the face of government, and you lose your humanity when you ‘take’ Medicaid.”
All responses and comments can be viewed at https://www.surveymonkey.com/results/SM-CRNF9BQ7/.
Some History on Medical Licensure
Demands for occupational licensure rarely come from the consumers it is supposed to protect, notes Morris Kleiner in his new book Stages of Occupational Licensure: Analysis of Case Studies.
Calls for medical licensure came from the AMA at its first meeting in 1847, where a committee report complained of “irregular practitioners who swarm like locusts…. No wonder then that the profession of medicine has measurably ceased to occupy the elevated position it once did; no wonder that the merest pittance in the way of remuneration is doled out even to the most industrious in our ranks.”
The AMA’s goal was to get control over who could practice medicine legally. By 1907, 42 states and territories had some form of licensing. Almost all followed the AMA recommendation to grandfather existing practitioners [sound like MOC®?]. The harsh requirements of licensure would apply only to new entrants.
In only two states was incompetence a cause for revocation. The most common reason for denial or revocation was “dishonorable” or “unprofessional” conduct, which generally meant violating the AMA’s code of ethics. Many aspects of the code came to be related to the economic goals of the professional cartel (John Goodman, “The Right to Work,” Forbes 9/17/14).
AAPS Calendar
Jun 5, 2015. Thrive, Not Just Survive XXII and
Jun 6, 2015. Board of Directors meeting, Raleigh-Durham, NC.
Oct 1-3, 2015. 72nd annual meeting, St. Louis, MO.
Slave Codes
Although slavery is always to be condemned, the French and Spanish codes were considerably more lenient than the English. The Code Noir allowed slaves to marry, and prohibited selling family members separately. Slaves were exempted from work on the Sabbath and allowed to cultivate plots of land for their own sustenance. Including most of the provisions of the Code Noir, the Código Negro Español guaranteed slaves the right to own property and purchase their freedom. They were allowed to work for wages on their 87 days off each year for Sundays and holy days, and to sell the produce from their gardens and keep the proceeds.
The slave codes in the American South, based on English codes, forbade employment of slaves for wages and criminally penalized anyone who hired them. Slaves could not legally marry, own property, or freely assemble for worship without a white auditor. Teaching a slave to read or write was forbidden.
In Louisiana, which was controlled by France or Spain before the Louisiana Purchase, 31% of blacks were free, according to the U.S. Census of 1830, compared with 0.8% in Mississippi, 1.3% in Alabama, and 1.1% in Georgia. Free blacks played remarkably prominent roles in the cultural and economic life of New Orleans.
[See Rodney Stark, For the Glory of God, 2003, and Christopher A. Ferrara, Liberty: the God That Failed, 2012.]MOC® Updates
- The Real Reason? According to Humayun Chaudry, D.O., et al., the Interstate Medical Licensure Compact (IMLC) “will benefit health systems that want to deploy their physician employees in multiple…sites around the country” (NEJM 4/23/15).
- FSMB Conflicts of Interest: Former Ohio State Medical Board member Lance Talmage, M.D., reimbursed the State for the $4,894 he had billed for travel expenses to attend meetings of the Federation of State Medical Boards, at the same time that he was being paid a $32,000 stipend as FSMB chair-elect. The Ohio Inspector General launched an investigation because of a complaint filed by an AAPS member. The Ohio Ethics Commission found that the investigation supported a violation of ORC §102.03(E): “No public employee shall solicit or accept anything of value that is of such character as to manifest a substantial and improper influence upon the public employee or official with respect to that person’s duties.”
- MOC® Not Linked to Quality: Despite titles that implied the opposite, two studies found no difference in quality outcomes measures for care given by “grandfathered” and MOC®-required internists. One study funded by the American Board of Internal Medicine (ABIM) found the average annual per-beneficiary costs were $167 less for MOC®-required internists (JAMA 12/10/14). An accompanying editorial by Thomas H. Lee, M.D., an executive in “provider” organizations and leader in Massachusetts health reform, called these studies the “best so far.” They show that MOC® is a “work in progress.” Lee states that if professional boards try nothing new to improve quality and efficiency, other agencies are “likely to try to fill the gap.”
- The president of the American Board of Psychiatry and Neurology admits, in a letter to diplomate Lawrence Huntoon, M.D., Ph.D., that MOC® is not evidence-based, but why should it be held to a higher standard than GME, accreditation, research, etc.?
Public Has No Right to Know
During a House Oversight and Government Reform Committee hearing, Eleanor Holmes Norton, the non-voting congressional delegate for the District of Columbia, stated that Congress doesn’t have the right to know what the White House is doing behind closed doors in a separation-of-powers government. The issue was whether David Simas, director of the Office of Political Strategy and Outreach, is immune to a congressional subpoena to testify. Republicans believe the office is being illegally used as a political campaign operation. The Obama White House has asserted sweeping executive powers, including the right to ignore congressional inquiries (http://tinyurl.com/opxzkcb).
AAPS Comments on Interoperability Roadmap
In comments available here, AAPS urged the federal government to scale back its involvement in electronic medical records, citing concerns about privacy, cost, and errors. “Electronic medical records are often riddled with errors, rendering the goal of interoperability one of dubious value, or even harmful…. One study found that less than half of electronic medical records were completely accurate.” If the federal government proceeds with its Roadmap, “there should be greater emphasis on transparency with respect to conflicts of interest in the electronic systems and standards. There should also be greater focus on what is best for patients, not intermediaries or hospitals.”
Supremacy Clause Rules Out Private Action
Providers of habilitation services claimed that Idaho paid them at rates inconsistent with “efficiency, economy, and quality of care.” In Armstrong v. Exceptional Child Ctr., the 9th Circuit affirmed a summary judgment for providers, concluding that the Supremacy Clause gave the providers an implied right of action. The U.S. Supreme Court reversed in a 5-to-4 decision, finding that there is no private right of action. The Supremacy Clause instructs courts to give federal law priority when state and federal law clash, but it is not the source of any federal rights and does not create a cause of action, ruled the Court. The express provision of a single remedy for a state’s failure to comply with Medicaid’s requirements, the withholding of Medicaid funds, and the complexity associated with enforcing section 30(A) combine to establish Congress’s “intent to foreclose” equitable relief.
Tip of the Month: A silver lining in the Medicare Access and CHIP Reauthorization Act of 2015, which was signed into law in mid-April to repeal the sustainable growth rate (SGR), is a provision in the bill that also repeals the irritating requirement of having to renew an opt-out status every two years. In the future, a physician will need to file an affidavit to opt out of Medicare only once, and it will have permanent effect. The physician will not need to renew his opt-out every two years thereafter. But that permanent filing of an opt-out affidavit cannot occur until sixty (60) days after the enactment of the new Medicare law, which was signed into law on Apr 17. If your opt-out affidavit is due before June 16, and if you want your opt-out to be permanent, then you might consider delaying your renewal and not seeing any Medicare patients until after you can file a permanent opt-out affidavit.
Correspondence
Discrimination against Out-of-Network Physicians. When the new New York State “Surprise Medical Bill” law goes into effect on Mar 31st, physicians will be expected to use 9 pages of model forms to comply. This basically constitutes legalized discrimination against out-of-network physicians. Through bureaucratic harassment, non-participating physicians are strongly coerced to become participating physicians. Participating physicians do not have to fill out all of these onerous forms. There is even a form that the referring physician has to fill out in order to refer a patient to an out-of-network physician. As this is uncompensated time, many will simply choose to refer only to participating physicians, putting non-participating physicians out of business, and extinguishing freedom of choice for patients.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
In Its Own Words. The most important argument I have ever read against the Interstate Medical Licensure Compact (IMLC) may be this: “For the state medical board to delegate its licensing authority to a non-governmental agency over which it had no control would be a questionable abrogation of power.” So said John H. Norton, M.D, second vice president, Federation of State Medical Boards in its own publication, Federation Bulletin, January 1975.
The progression has been from “never do this” to “you must do this.” FSMB has veered far from its mission statement.
Stephen Herring, M.D., Fayetteville, NC
Achieving Goals. Forty years ago I predicted that HMOs would sell only patient compliant contracts. For instance, if she missed 50% of prenatal visits, the mother was responsible for 50% of the bill. If the body fat index did not decrease as ordered, financial penalties or even loss of insurance would ensue. If an ultrasound showed any deformity and an abortion was refused, the patient paid all maternity costs. This last provision in the Minnesota HMO Act of 1973 rule-making caused me to invite the rule maker to lunch and explain how unhappy the archdiocese would be—he took out the compliance rule. Congress rejected compliance contracts brought by the HMO lobby in about 1980.
I expect some sort of compliance will be part of future cartel insurance contracts. All inhibitions regarding MBA-ACO-HMO diktats are now gone. First might be penalties for not taking medications. Then perhaps for refusing to participate in an assisted suicide or to pull the plug on really sick or just old “crumbly” people? And who is next, the “unproductive”?
Robert Geist, M.D., St. Paul, MN
Report from a Disenrolled Physician. My patients are continuing to receive reimbursement for my services using CMS form 1490S. We assist patients in filling out the form, and all payment and correspondence from Medicare is sent directly to the patient. Therefore, we must rely on patients for feedback. There are occasional random denials with statements that “the doctor must file.” However, Medicare does not forward the claims to supplemental insurers, so some patients have difficulty collecting. Medicare has also denied claims from a pathologist, who now refuses service to all my patients, Medicare or not, because he is afraid of Medicare. We now send all our specimens to another pathology lab that will bill us directly. Note that the Medicare manual, which is the contract for patients who pay Part B premiums, does not say the patient must be treated by a government-contracted doctor.
Richard Swint, M.D., Paris, TX
The “New Doctor.” National Public Radio recently discussed medical training in the 21st century: “Spurred by the need to train a different type of doctor, some top medical schools around the U.S. are tearing up the textbooks and starting from scratch.” The new doctor is system-focused and team-focused. This new “team-based” group-think sidelines physicians and puts a collusive system of government and health plan interlopers in charge of patient care. Non-physician team members will be empowered to follow computerized treatment protocols approved by some corporate-approved “lead physician” far from the patient’s side. One man attempting to advocate for a hospitalized friend, writes: “The hospital appeared to be on auto-pilot, with each nurse and/or doctor deferring to others and denying having made decisions. The hospital has come to operate in a way that seems explicitly designed to ensure that NO ONE is fully responsible for the care being given to a given patient” (http://tinyurl.com/lxcbcwm).
Twila Brase, R.N., Citizens’ Council for Health Freedom
A Model for MOC. Currently, 26 states are Right to Work, and 26 have forced unionism. Right to Work means every worker has the right to join or not join a union and cannot be fired for either choice. This is what we are looking for with MOC: the right to participate, but not be discriminated against in terms of license, hospital privileges, or insurance panels if we do not participate. Unions have to compete for members and start listening to their needs. Boards should have to compete and show value in their product. Federal Right to Work laws have languished in gridlock forever. It is a state-by-state effort. Similarly, we cannot wait for a federal solution to MOC. We must all work in our states.
Meg Edison, M.D., Grand Rapids, MI
