Volume 63, No. 11 November 2007
HILLARYCARE, TAKE TWO
Proudly referring to her scars from 1993, Hillary Clinton
has put forth her reform proposal, and has clearly learned from
her mistakes, writes Laura Meckler (Wall St J 9/15-
16/07).
One important lesson is not to provide all the details in a
1,342-page bill. That “gave opponents with special interests easy
fodder to kill the plan,” while the public was “bewildered.” This
time, people won’t know the specifics until after the bill is in
force. Above all, she won’t make the mistake of appointing a Task
Force that gets into a “vortex of publicity.” Better to do things
entirely behind closed doors, writes Paul Starr, who chaired
three cluster groups on the Clinton Task Force (American
Prospect 9/14/07).
It Wasn’t Really Her Fault
Starr doesn’t think Hillary deserves the blame for the
failure of ClintonCare 1.0. It was Bill Clinton’s plan, already
formed at the outset. Advisors, Starr writes, are supposed to
take the blame when things go wrong, but Bill Clinton’s
appointment of his wife to chair the Task Force did not “create
the necessary distance and deniability.” It has come back to
haunt her. Hardly fair: her American Health Choices Plan is
different, “a new chapter in the struggle for health care
reform,” and it’s “100 percent my plan” (American
Prospect 9/24/07).
The Method, the Choices, the Promises
Clinton version 2.0 is basically “communitarian,” writes
New York Times columnist David Brooks. It relies on a
“magic circle” of “partnerships,” involving individuals,
government, doctors, hospitals, and patients, all “coming
together around a big table to reach a consensus” instead of
technocratic engineers. In interviewing Clinton, Brooks found her
answers to be “just chunks of her stump speeches.” But he thought
he “detected real warmth when she described the way she and her
staff came up with the plan” (Ariz Daily Star 9/19/07).
It’s like a loya jirga, Brooks writes a grand assembly of
Asian tribal chiefs, with endless meetings.
Choices are supposed to include your present plan, if you
like it and if it still exists under the new regulations,
including loss/ratio minimums, and it’s not one of those
consumer-driven plans in which people are “twice as likely to
delay or avoid needed care due to costs.” Alternately, you can
have one of the offerings of the Federal Employee Health Benefit
Program (FEHBP), or “a public plan similar to Medicare.”
Clinton promises no new bureaucracy. Presumably the
Office of Personnel Management (OPM) will just expand from
covering 9 million federal employees to any of the other 291
million Americans who might be interested in the FEHBP. And CMS
would expand also, though a public plan that would have to “cover
the same benefits as guaranteed in private health plan options in
[FEHBP]” would not be at all like Medicare.
ClintonCare 1.0 proposed caps on premiums and a system under
which insurers had to bid for regional business. The new plan is
said to be less threatening to the insurance industry. There
would be no premium caps but guaranteed issue and modified
community rating would be required: Insurers would have to sell
to everybody who applied. In New York and New Jersey, these ideas
led to enormous premium increases. No problem: everybody would be
required to buy insurance anyway. People judged sufficiently
needy would be subsidized through tax credits. There would be
some as-yet-unspecified limit on what percentage of their income
people would have to spend for health insurance. But spend it
they must.
Giant companies with retiree legacy costs would get a tax
credit, but only if they demonstrate they are employing “best
practices.” Employers with fewer than 25 employees would get a
tax credit up to 50% of premiums, but only if they were not
“boutique high-income firms.” “But there will be `no new
bureaucracy’ to make these determinations?” Greg Scandlen asks
(Consumer Power Report #96, 9/19/07).
Clinton estimates a mere $110 billion/yr in extra costs,
obtained by eliminating tax cuts for the rich. Her 7-step cost-
reduction strategy includes a Groundbreaking National Prevention
Initiative extending into schools, workplaces, supermarkets, and
communities. A new prevention workforce using pharmacists, church
leaders, and others would ensure “100 percent use of cost-
effective prevention.”
Additionally, Clinton would force all providers
participating in federal programs to use interoperable health
information technology; create a new [nonbureaucratic] Best
Practices Institute to keep physicians and patients from “being
bombarded with information”; and coordinate chronic care
including lifestyle management. For example, doubling obesity
accounts for 30% of cost increases; returning obesity among the
elderly to the 1980s level could save $1 trillion over 25 years,
she claims (www.hillaryclinton.com/feature/healthcare).
The Individual Mandate: Key to Universal Coverage
It is impossible to achieve universal coverage without an
individual mandate, stated one of Sen. Clinton’s top aides. The
idea is gaining support across the political spectrum (Laura
Meckler, Wall St J 9/17/07). How else can enough money
be extracted from the healthy? It’s the new equivalent to
universal military conscription in 1793. Buying insurance and
attending to wellness is part of a new social compact, a way to
restore civic concern and social connectedness (Bloche MG, N
Engl J Med 2007;357:1173-1175).
“Individual mandates are truly evil and must be resisted,”
writes Linda Gorman of Independence Institute. The are “an
enormous surrender of power to an unaccountable government….
There is no way to claw the power back.”
Did ClintonCare 1.0 Really Fail?
Hillary’s reputation for error is “a shame, really, because
if there were any justice, she’d have the best one-liner on
health care of any candidate out there: `I was right the first
time.'” writes Jonathan Cohn (New Republic 6/04/07).
“Just about every reformer has borrowed elements of the old
Clinton health plan,” he states.
In fact, as chronicled in AAPS News, much of
ClintonCare has already been enacted on the installment
plan starting with the criminalization of medicine. Grace-Marie
Turner presents a side-by-side comparison of the Clinton Health
Security Act and the Health Insurance Portability and
Accountability Act (HIPAA) (Cato J, spring/summer 2002).
The State Health Insurance for Children Program (SCHIP) now
up for renewal, derives from Kids First. Clinton’s Option 3,
according to a preliminary staff working paper, “phases in
universal coverage, minimizes the financial burden of the program
at the outset, and covers the most vulnerable of our
citizens children as quickly as possible.” The program was
designed to be freestanding but capable of being easily folded
into future program structures.
From the Clinton Archives
From an unsolicited paper given to a Task Force member by
Lawrence Harkness, President and CEO of Children’s Medical Center
in Dayton, OH, entitled “Health Care Reform and the Realignment
of Incentives”:
Societal ills must be controlled. The American
people must become more financially accountable for
their own health through prevention, cost sharing and
the end of self-indulgence. Health care expenses as a
direct result of preventable “social ills” such as
smoking, obesity, teen pregnancy, sexually transmitted
diseases and trauma resultant from not wearing seat
belts are inexcusable.
Searchable files of documents obtained as a result of
AAPS v. Clinton are available on CD from AAPS.
How Obesity Became an Epidemic
Over the past 20 years, the average American weight gain has
been 8 12 lbs. The causal links to morbidity and mortality are
unclear, but the CDC and the Harvard School of Public Health went
on the offensive in response to an article (Flegal KM, et al.
JAMA 2005;293:1861-1867) that radically reduced the
estimated number of deaths caused by obesity.
J. Eric Oliver of the University of Chicago Dept. of
Political Science notes a general trend toward the “diseasing of
America.” As polio, tuberculosis, and typhoid virtually
disappeared or became rare, public health services needed new
problems to justify their existence. Chronic disease prevention
and management is their new mission. Any physical symptom or
correlate of a health problem can become a disease.
The most active groups in getting obesity classified as an
epidemic, he writes, are funded by weight-loss companies that
want third-party funding for their products or procedures. An
epidemic is “only way to rationalize the cosmetic use of diet
drugs” (Perspect Biol Med 2006;49:611-627).
“We’re going to take things away from you on behalf of
the common good.” –Hillary Clinton at Boxer fundraiser, 6/29/04
Costs Down, Wellness Up in CDHP
The 2007 increase in the cost of employee health benefits,
an average 5.3%, down from 7.9% in 2006, was the smallest in 9
years (Wall St J 9/24/07). You might have missed the
good news, notes Grace-Marie Turner, as major newspapers
emphasize that the increase in health insurance premiums
continues to outpace wages and inflation.
More than 20% of employers offer, or plan to offer, a high-
deductible health plan (HDHP) with a tax-advantaged Health
Savings Account (HSA) by the end of this year, and almost half
are considering it for a future date.
The average annual premium for the non-HDHP is $12,183 for
families and $4,514 for singles. The average HDHP premium plus
employer HSA contribution is $10,380 for families and $4,254 for
singles, according to a Kaiser Family Foundation survey
(Consumer Power Report 95, 9/13/07).
Employment-based coverage is generally much more expensive
than an individual policy. For 2006, eHealthInsurance reports an
average annual individual premium of $1,776 for self-owned v.
$4,479 for employment-based coverage, and an average family
premium of $4,128 vs. $12,106, respectively (Health Policy
Matters 9/13/07).
Enrollees in consumer-directed health plans (CDHPs) are much
more likely to participate in wellness programs, according to
Blue Cross Blue Shield Association (BCBSA). Participation in
smoking cessation is 20% by HSA holders and 6% by those with non-
CDHPs. For stress management, figures are 22% v. 8%; for
nutrition programs, 27% v. 12%; and exercise programs, 29% v.
12%. HSA enrollees were much more likely to research health
information, to track costs, and to plan for future expenditures,
but no more likely to forgo care because of cost (Consumer
Power Report 98, 10/2/07).
From a Canadian, on Their Great Medical Plan
My 80-year-old mother can’t get treatment for a blockage in
her leg, despite all the years she paid into the system, because
she smokes. Now there is talk that they won’t treat obese people
either. What we want in Canada is a health system for healthy
people only; that should reduce our health care costs. Immigrants
are covered immediately without paying any premiums (my wife and
I pay $96/mon plus taxes we’re in the 55% bracket). We give free
needles to drug users to try to keep them healthy; diabetics have
to buy their own.
We have a health diagnosis system, not a health care system.
You can quickly get to see a doctor so he can tell you that you
are sick, and put you on a waiting list. The government keeps
adding money, but the lists do not get shorter.
Where else in the world can you spend your money on things
that could kill you, but you’re not allowed to spend it on things
that could make you healthy, because that would be queue-jumping?
You have to wait your turn unless you are a hockey player. –from Dr. Dennis Bonnette
Surrogate NPIs
The one-year grace period announced by CMS after the May 23
deadline for obtaining a National Provider Identifier was
necessitated because facilities such as labs or consultant
physicians could not get paid if the referring physician did not
supply his NPI (NSMA Medicare-HIPAA Page 4/4/07).
Information on Health Insurance Claim Form HCFA-1500,
section 2010.2, states in item 17A: “When the ordering/referring
physician has not been assigned an NPI and does not meet the
criteria for using one of the other surrogate NPIs, the biller
may use the surrogate NPI `OTH00000′ until an individual NPI is
assigned.”
Insurance companies may pay significantly less for services
rendered to self-referred patients. Some other suggested actions
for specialists who do not wish to obtain an NPI: get clearing-
houses to assign dummy codes or other unique identifiers to
physicians not required to have an NPI; use the primary doctor’s
NPI; or have the patient pay the consultant directly.
Tyranny at Texas Medical Board
The TMB is under attack for numerous abuses, including the
use of anonymous complaints by insurers trying to destroy
physicians who dare to challenge their coverage policies. Other
objectionable practices include : use of anonymous “expert”
witnesses; Star Chamber secret hearings; prohibition of note-
taking or recordings during hearings; denial of due process to
physicians; intimidation tactics; forced settlements; and
conflicts of interest of the TMB members.
Dr. Keith Miller resigned abruptly under intense scrutiny of
his work as an expert witness against physicians and his position
on the Blue Cross Blue Shield Advisory Committee that looks for
ways to cut costs by limiting evaluation and treatment of
patients. This work was brought to light by Shirley Pigott, M.D.
Additionally, Dr. Miller has continued to employ a nurse
practitioner accused of stealing and forging triplicate
prescription forms in order to obtain controlled drugs for her
own use.
The TMB’s response to an editorial by Steven Hotze, M.D.,
and a rebuttal by AAPS, is posted in the AAPS Hall of Shame at www.aapsonline.
org.
Legislative hearings are being sought.
Indentured Servitude in Texas
Doctors who wish to have their application for a Texas
medical license expedited must sign a contract agreeing to take
Medicare and Medicaid patients for 5 years: “During this time I
agree to accept any Medicare and Medicaid patient as my patient.
I understand that my acceptance of this agreement will be noted
on the Board’s web site and may also be reflected in my Public
Physician Profile. I also understand that my failure to comply
with this agreement shall constitute unprofessional or
dishonorable conduct that is likely to deceive or defraud the
public or injure the public and may result in disciplinary
action” (www.tmb.state.tx.us).
GMC Tells UK Doctors How to Commit Fraud
The General Medical Council (GMC), which has the statutory
power to de-list a medical practitioner for unfitness to
practice, poses the question of whether it is acceptable for GPs
to remove some children from their lists, temporarily, for
purposes of calculating the measles-mumps-rubella (MMR) vaccine
target payment. Doctors who meet the target can claim bonus
payments from the NHS but parents sometimes refuse vaccines,
especially MMR. Apparently it is allowable, though not advised or
suggested, to remove the children from the roster as long as
parents give consent and they can be re-registered for “immediate
necessary treatment.”
Most Frivolous Medical Malpractice Lawsuit
A cardiologist was sued by a patient who ultimately
developed a melanoma. Although his consultation had nothing to do
with the skin, the cardiologist’s note was the only legible one
in the medical record.
An obstetrician was sued for “causing infertility” in a
patient who had miscarried. Two months after the case was filed,
the plaintiff became pregnant naturally, but did not drop the
lawsuit.
If you’d like to enter the competition for the most
frivolous case (your own or a colleague’s), write to info@
medicaljustice.com) before Oct 31. First prize is a year’s free
membership in Medical Justice.
Tax Treatment of False Claims Act Settlements
Payments made to compensate the government are tax
deductible, even if labeled a fine or penalty. However, payments
intended to be punitive must be paid with after-tax dollars. The
burden of proof of deductibility is on the taxpayer. In
settlement negotiations, take care to document the nature of any
payments made as restitution (BNA’s HCFR 9/26/07).
Final Stark III Rule
Physicians now need to consult all three parts of the Stark
rule, and “it’s not a regulatory scheme for the faint-hearted.”
The burden of proof is now on billing entities in cases in which
Medicare claims are denied because of alleged prohibited
referrals. The AMA stated that this provision could give CMS
contractors increased incentives to deny claims.
“Although there are not widespread claims denials for Stark
violations, this change offends all notions of due process,”
writes the AMA. “In addition, it makes it easier for the
government to pursue claims against physicians who have far fewer
resources” (BNA’s HCFR 9/12/07).
The Rule is available at
www.cms.hhs.gov/Physician SelfReferral/Downloads/CMS-1810-F.pdf).
Termination of Patients for Non-Payment
Take care to find out your state’s privacy laws regarding a
patient’s financial history if you discharge a patient for
nonpayment. Disclosing information about nonpayment to future
physicians risks lawsuits for defamation, interference in a
future patient-doctor relationship, disparagement, and violation
of privacy. A line such as “divorced for nonpayment” in a medical
record could violate the HIPAA minimum-neces-sary rule. Attorney
Robert Borsody recommends keeping medical and financial records
separate. Turning the patient over to a collection agency may be
the best course of action: The nonpayment goes on the patient’s
credit report, which is available for future physicians to
examine (MCA 9/17/07).
Correspondence
HIPAA Favors Plaintiffs’ Lawyers. Two cases currently
on appeal in New York examine the way in which HIPAA has tilted
the playing field further in favor of plaintiffs and their
lawyers (Kish v. Graham and Arons v.
Jutkowitz). Fundamental fairness requires that all parties
in litigation have equal access to relevant evidence, including
information held by non-party treating physicians. A patient who
files a malpractice suit necessarily waives the patient-doctor
privilege with respect to issues affirmatively raised by the
plaintiff. Prior to the HIPAA Privacy Rule, defense attorneys
routinely conducted post discovery interviews of non-party
treating physicians to see what they had to say without incurring
the expense of a deposition. However, physicians are now refusing
to accept “Speaking Authorizations” that are not “HIPAA
compliant.” Moreover, if a physician did speak with a defense
attorney without patient authorization, his testimony might be
thrown out because he had violated federal law.
In these two cases, courts have refused to compel plaintiffs
to provide HIPAA-compliant authorizations. Defense counsel must
proceed blind, while plaintiffs’ attorneys continue to have
unfettered access to conduct informal interviews. If the cases
are not overturned, precedent is set in New York State that
unequal access to evidence in favor of plaintiffs is the law,
and defendants are at a severe disadvantage. (New Jersey still
allows post note of issue ex parte interviews).
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
A Miscalculation? Outrageous premiums for individual
health insurance in New Jersey are not an unintended consequence.
The Left deliberately got community rating enacted so that
escalating premiums could be cited as an example of insurance
companies ripping off the consumer. Conclusion? Only government
can be trusted to do things right. Free-enterprise opponents are
not stupid. They are deliberate, purposeful, and very patient. I
wish I could say the same for our side.
Greg Scandlen, Consumers for Health Care Choices
Huge Pools Not the Answer. Many states are considering
the ill-conceived concept that pooling can solve a multitude of
problems. Widespread acceptance of this myth will only increase
the problems of private insurance. Pooling helps to reduce random
variation, but it does not in any way help nonrandom variation.
Massachusetts, for example, hopes to benefit from pooling the
individual and small-group markets. Instead, the rampant adverse
selection in the individual market will harm the small-group
market while bringing only a small and short-lived benefit to the
individual market.
Mark Litow, Brookfield, WI
Insurance is the Problem, Not the Solution. In my
youth, 150 million Americans (90% of the population) were
uninsured. The insurance that existed was for hospital care only.
We felt secure and well cared for. We bought excellent,
affordable care in the free market. My dad was a civil engineer
and my mother a grade-school teacher. Americans are now vastly
overinsured. Insurance, both private and governmental, sucks out
30-40% of the medical dollar, and disconnects patients from the
cost of frivolous care. Insurance is for unexpected catastrophes,
not for routine primary care, which can be had for about $100 per
month if paid for directly in a practice like mine.
Thomas R. LaGrelius, M.D., Torrance, CA
What about Legal Errors? There are far worse legal and
political errors than medical errors. The legal errors are
enshrined as “precedent.” Few recognize the huge egregious errors
of politicians, “leaders,” the state. Medical errors are
corrected to the extent that they are correctable. Did anyone
ever hear of a “Morbidity and Mortality Court Report”?
Tamzin Rosenwasser, M.D., Lafayette, IN
Cost of Government Care. A director of business
development for a Colorado hospital told me that the cost of
uncompensated care generated by government was $45 million in
2005, compared to $25 million for charity care. I don’t know
whether these were real costs, fake costs, or Martian costs, but
they’re what they use for public consumption. He stated that in
rate setting the hospital just takes the uncompensated care
dollars, divides by the private payer base, and uses that number
to calculate an increment to add to next year’s charges. Thus, it
is clear that the focus on the uninsured overlooks a much bigger
problem: Government isn’t paying for the medical care it is
currently supposed to cover, and may be driving a huge chunk of
the above-inflation cost increases. If this is so, the drive to
expand Medicaid and SCHIP to cover the uninsured will increase
the amount of uncompensated care, the cost of private care,
private premiums, and the number of uninsured. In the end we will
reach the old group-hug consen-sus that government must rescue
everyone, taxing without limit the upper half of the income
distribution to do so.
Linda Gorman, Independence Institute, Golden, CO
Shifting Definitions. The charity care tab is used as
an excuse to impose universal insurance which will require half
a billion dollars in new taxes. Let’s see, people pay higher
premiums/ costs to fund charity care. So the solution is to make
everybody buy coverage, and when some can’t afford it, the same
people now paying for the charity care will have to pay the
insurance premiums instead. Problem solved!
Joseph Lee Pugh, Diamondhead, MS
