Volume 66, no. 10
The winning slogan against ObamaCare, the “3 R’s” suggested by John R. Graham of the Pacific Research Institute, is Repeal, Replace—and Resist.
As consequences such as the ’rithmetic come to light, supporters are running for cover. Its Senate godfather, Max Baucus, admitted that he did not read the bill (nor did he write it), but delegated the job to “experts.” The “R’s” for supporters are to build “resistance to repeal.” A “Communications Perspective,” from Families USA, says that the environment for ObamaCare is “challenging,” since the public is “disappointed, anxious, and depressed.” Claims of any benefits have to be “small” to be “credible” (www.john-goodman-blog.com 9/2/10).
The interest groups that helped to pass ObamaCare, such as the AMA and its Federation, aren’t exactly celebrating, but they are gearing up to “help” doctors with implementation—for a price. “It’s the law,” they say, reminding one of Jerry Cruncher’s comment about the barbarities emanating from the Old Bailey in A Tale of Two Cities by Charles Dickens.
“You have 3 years to figure out what you are going to do,” directors of our county medical society were told. Under ObamaCare, compliance will become so much more complex that small or solo practices will not be able to afford the extra personnel. They will have to team up with business consultants, a deal the medical society is arranging for its members.
Minnesota Gov. Tim Pawlenty turned down the bait that is being offered to lure the states into new programs. Once the states are firmly ensconced they become responsible for huge bills. By then, Pawlenty said, “It’s like the Hotel
California. You can never check out.” He issued an executive order forbidding state agencies to apply for grant funding or demonstration projects under the Act unless clearing it with his office or unless required by law. This includes grants to study state-based health insurance exchanges, “since we already studied them and we concluded they aren’t going to work” (Wall St J 7/9/10).
Nebraska Gov. Dave Heineman told his state’s education establishment that the state will have to raid education funding to pay the price for ObamaCare: a great way to fragment the big-government coalition that rammed ObamaCare through and is desperate to block repeal (NRO 9/1/10).
Insurers Check Out or Consolidate
Because of the guaranteed-issue provision that takes effect Sep 23, some major insurers are will stop issuing new individual policies for children. The Administration is “disappointed” about this “unwarranted and unnecessary step.” State insurance commissioners and insurers are pleading with the federal government to allow an open-enrollment period to help curb the anticipated abuse of the system (AP 7/23/10).
At least three smaller insurers are dropping out of the individual market altogether, as they don’t have the resources to “hire the additional lobbyists and lawyers, and become de facto public utilities that constantly haggle with bureaucrats,” writes Merrill Matthews. Competitive pressure on the “Big 12,” who have been moving toward an oligopoly, is evaporating. But some small companies may offer more Aflac-type coverage that pays a predetermined amount if a certain medical event occurs (Forbes 7/7/10).
Subscribers Drop Coverage
Greg Scandlen writes that he has decided to drop his coverage when the bill comes for renewal, and rely on his health savings account. If his health changes, “I will be able to sign up for the new federal risk pool, but ONLY after I have been uninsured for six months. I might as well get started on that…qualifying period now while I am still healthy” (CPR 8/19/10). If penalties for forgoing coverage are much less than premiums—which are expected to escalate rapidly—many are likely to drop insurance.
The AMA on Cash-Practice Alternatives
The AMA has acknowledged that “physicians seeking ways to simplify their practices and reduce administrative overhead are evaluating whether limiting their financial dependence on health insurer contracts is a viable option” (http://www.ama-assn.org). This means relying on patients for payment. “Think about other service providers: lawyers, accountants, fitness trainers, tailors,” the AMA advises. Clients choose them based on “work styles and results, punctuality, availability and willingness to solve problems.” Physicians who aren’t willing to enhance these aspects of their practice “may be better off leaving [their] health insurer contracts and referral patterns undisturbed.”
A Tug of War
“I think that the authors of ObamaCare knew full well what they were doing. They were intent on destroying private medical care and have been working on it for decades,” writes Linda Gorman. “The landmines are working exactly as intended.”
The “R” for “replace” could mean a total government takeover—or an exodus to the free market. It depends on which resistance is stronger—to implementation, or to repeal. Many are paralyzed since they don’t know what the rules will be. But doctors can be sure they are a landmine, and must act accordingly.
The WHO’s Health System Rankings
In the World Health Report 2000, the World Health Organization (WHO) ranked the U.S. health system 37th in the world. According to Philip Musgrove, Ph.D., its editor-in-chief, who had no control over the rankings, 61% of the numbers that went into that exercise were not observed but simply imputed from regressions based on as few as 30 actual estimates from 191 countries. “The number 37 is meaningless, but continues to be cited,” Musgrove writes. “First, people would like to trust the WHO and presume that the organization must know what it is talking about.” Also, “numbers confer a spurious precision, appealing even to people who have no idea where the numbers come from.” He concludes that “it is long past time for this zombie number to disappear from circulation” (N Engl J Med 4/22/10).
Although the ubiquity of “quality measurement and reporting” may make it “difficult to remember a health care landscape without them,” the trend began only about a decade ago. The National Quality Forum has endorsed more than 600 “quality” measures. Based on “robust” measures with “tight, evidence-based links” we have seen “gratifying improvements” in hospital performance. In 2009, 98.3% of eligible patients with acute myocardial infarction received a beta blocker on discharge, compared with only 87.3% in 2002. Stated still more impressively, 96.8% of hospitals had a performance level greater than 90% in this measure, compared with 49.1% in 2002. The >90% performance level for discontinuing prophylactic antibiotics within 24 hours of surgery end-time went from around 20% to nearly 80%.
The measurements are “not without cost.” Many data elements require “painstaking and expensive review of medical records” (Chassin MR, et al. N Engl J Med 2010;363:683-688).
The assessment does not include long-term left ventricular function—this measure “does not address a process quite proximate to the desired outcome” — or surgical wound infection rates.
Although the clinical history and physical examination are the most important tools for diagnosis, there is only one sentence in 1,092 pages of new criteria related to “meaningful use” of electronic health records (EHR) that mentions their existence.
“It is not possible to meaningfully drive a car that lacks an operable engine (even if it has a state-of-the-art global positioning system),” writes Stephen R. Levinson, M.D. “The clinical history and physical is the central engine of the medical record.” We need systems that are operable as well as interoperable. Otherwise “our software systems will interfere with, rather than promote, appropriate, accurate, and timely diagnosis” (Modern Healthcare 9/8/10).
“Realize that the doctor’s fight against socialized medicine is your fight. We can’t socialize the doctors without socializing the patients. Recognize that government invasion of public power is eventually an assault upon your own business. If some among you fear taking a stand because you are afraid of reprisals from customers, clients, or even government, recognize that you are just feeding the crocodile hoping he’ll eat you last.”
Ronald Reagan 10/27/1964
Dr. Rob Steele Challenges Dingell
In 1943, AAPS fought the Wagner-Murray-Dingell bill introduced by the current congressman’s father. Dingell fils is the longest serving member of the U.S. House of Representatives in history—55 years. Now AAPS member Robert Steele, M.D., is just nine points behind him in the polls, and gaining.
This is the first venture into politics for Dr. Steele, an interventional cardiologist. He helped build southeast Michigan’s largest heart clinic. He helped pioneer the use of thrombolytic agents in acute myocardial infarction, and has performed more than 15,000 cardiac catheterizations. He pledges to work to repeal the Dingell-Pelosi takeover of American medicine.
His wife, Phyllis Boniface, M.D., an opted-out psychiatrist, has also been an AAPS member.
Other AAPS Candidates
Other AAPS members running for political office that have come to our attention, and have not been mentioned previously:
Eric Larson, M.D., an anesthesiologist, is running for the Michigan State House of Representatives. He is a “principled conservative Republican” and strong advocate of free markets. See www.ericlarson2010.com.
Dan Benishek, M.D., a general surgeon, is running for the seat formerly held by Bart Stupak (D-MI) in the U.S. House. His 4 R’s are: “read it, reduce it, repeal it (especially ObamaCare), reform it.” See http://www.danbenishekforcongress.com”>www.danbenishekforcongress.com.
Where’s the Innovation?
Wherever there is third-party payment, the goal of innovation is to produce more products that qualify for reimbursement, even if the effects on patient outcome are only marginal. Wherever there is no third-party reimbursement, innovators focus on ways to lower costs and raise quality, writes John Goodman.
GE Healthcare has introduced a portable electrocardiogram machine into the Indian market that will do the test for 20 cents. Siemens has mobile diagnostic units for that market with X-ray, ultrasound, and pathology systems. “In India, we want first-world technology at third-world prices,” said Sujay Shetter of PricewaterhouseCoopers pharmaceuticals division in India.
In the U.S. we have more than 1,000 walk-in clinics posting transparent prices and offering high quality care. Wal-mart’s $4 generics package is for customers who pay their own way.
Sep 26. Luncheon meeting in Columbus, OH.
Oct 5. Dinner meeting in Houston, TX.
More Lawsuits Against ObamaCare
The Goldwater Institute has filed suit (Coons v. Geithner) in U.S. District Court in Phoenix against the Patient Protection and Affordable Care Act (PPACA), contending inter alia that it violates the separation of powers by setting up a new bureaucracy without meaningful congressional oversight or judicial review.
Lead plaintiff Nick Coons is a small business owner in Tempe, AZ, who pays for all of his medical care out of his own pocket and wants to continue making his own medical decisions. He also objects to being forced to disclose his medical records to an insurer, noting that these records could also be accessed by the federal government and others without his permission.
Plaintiffs also include Arizona congressmen Jeff Flake, Trent Franks, and John Shadegg, as well as Arizona state house speaker Kirk Adams and 28 other legislators.
These lawmakers tried to resolve the state’s budget deficit in part by reducing Medicaid benefits. The passage of ObamaCare forced them to restore the cuts, or lose $7 billion in federal funds.
Another case, filed pro bono by Knoxville, TN, attorney Van Irons, has been joined by more than 31,000 plaintiffs. Iron’s case goes much further than challenging the individual insurance mandate, asserting that “Congress has absolutely no constitutional authority to regulate health care. Period.” He argues that in U.S. v. Lopez, the U.S. Supreme Court found that intrastate activity that can be reached by federal statute must be “economic.” Regulation of matters pertaining to health, welfare, education, and crime was a police power retained by the states (Health Care News 7/1/10).
The Constitution and a Right to Health Care
In a May 18 report prepared for the Congressional Research Service, legislative attorney Kathleen S. Swendiman writes:
While the Supreme Court would likely find that the Constitution provides a right to obtain health care services at one’s own expense from willing providers, the Supreme Court has never interpreted the Constitution as guaranteeing a right to health care services from the government for those who cannot afford it.
The framers were “more concerned with guaranteeing freedom from government, rather than with providing for specific rights to governmental services” (7-5700 www.crs.gov R40846).
PPACA and Distributive Justice
The passage of PPACA highlights the “tragedy of the commons” and the discrepancies between the “can do,” “actually do,” and “should do” in medicine, writes David B. Reuben, M.D. Overuse is waste, which is allegedly responsible for 30% of medical spending, and it violates the principle of redistributive justice (“resources should be spent to provide the most good for the most people”). The cost of 1 week of intensive care for one patient would more than pay the cost of a year of health insurance for a family of four, he calculates, equating care with coverage.
The most important challenge for 21st century medicine, he states, is not to expand the “can do,” but to reduce the discrepancy between “actually do” and “should do.” The only solution is “mutual (agreed upon by the majority of those affected) coercion, which in health care includes rationing” (JAMA 7/28/10).
Enhanced Enforcement in PPACA
More “free” government money is expected to lead to more fraud. A $1 million ad program will warn seniors about scams to steal their $250 rebate check. A 2007 strike force program will focus on PPACA implementation. Grants are being awarded for background-check programs for prospective employees at long-term care facilities. Using biometrics to sign patients in to a provider’s office might help prevent fraudulent claims payments. A new data-mining project will help assure that excluded persons are not still working; providers should check no fewer than three exclusion lists for each new hire, contractor, or referral source.
Defendants face a new standard of “objective falsity.” An entire claim is either false, or not—based on a discretionary or amorphous standard. For example, a nursing facility is required to feed and bathe patients. But are their claims false if the food is bad or patients are not bathed daily (BNA’s HCFR 6/16/10)?
With PPACA, there is increased interest in predictive modeling, using data mining tools developed with the Dartmouth Atlas Project, which has been analyzing consumption of medical care by geographic area in the U.S. for 20 years. The idea is to flag potentially fraudulent claims and withhold payment—with the acknowledged risk of delaying legitimate payments. Social network or link analysis, used to detect the disparate relationships that develop in crime rings, is increasingly being applied to medical facilities (BNA’s Health Care Fraud Report 8/11/10).
Such initiatives are needed “absent confronting the inherent perverse incentives of third-party payer,” explains James Frogue in Mar 4 testimony to the House Judiciary Committee. “Third-party payer [is] the root cause of excessive waste, fraud and abuse in our healthcare sector.”
Regulatory Standards and HIT
Although the FDA is moving toward ever tighter regulation of X-ray machines and drug pumps, it has declined to regulate information technology (HIT) as a medical device, although experts say it clearly is one—and though it can interfere with many other medical devices. Industry groups say regulation would stifle innovation. This may be true, but even without FDA regulation, “it’s mind-boggling how little innovation there has been over the last 10 to 15 years,” said Robert Elson, a former medical director for a digital records manufacturer (Huffington Post 8/4/10). One relatively limited form of regulation would be mandatory reporting of safety problems. Voluntary disclosure has revealed 260 problems in the past 2 years related to EHRs, causing 44 injuries and six deaths, stated FDA official Jeffrey Shuren (HealthData Management, August 2010). Still, there is tremendous pressure to implement systems too quickly, say to collect incentive payments.
The most commonly reported safety issues are wrong patient/wrong data, medication administration issues, and clinical data loss/miscalculation (HHS internal memo 2/23/10).
As Scot Silverstein, M.D., explained, “Our [a vendor’s] policy is to always have unabashed faith in the computer…except when it screws up, and then it’s the doctor’s fault” (Health Care Renewal 7/11/10). Software errors have included deleting the “no” from the sentence “no herpes simplex virus…was detected.”
Unlike most kinds of automation, HIT aims to change the way that professionals do business. http://www.aapsonline.org/newsoftheday/00767
Another JCAHO Weapon Against Physicians. According to a September Doc Alert published by a hospital, Joint Commission standard MS.08.01.03 requires the organized medical staff to evaluate each practitioner’s professional practice. Data will be used to determine whether to continue, limit, or revoke privileges.
“Members with an average LOS [length of stay] >= 1 day above the state average will be asked to develop strategies for improvement.” Although data are supposed to be adjusted for severity of illness, the hospital will determine what, if any, adjustments are warranted. Of course, one of the strategies an “outlier” physician may develop is to avoid treating patients who are sicker than average. Another viable strategy may be for the physician to leave the hospital and practice office-based medicine exclusively.
The “Physician Profiler” will track compliance with “core measures” of standardized treatment of certain conditions.
If the physician dutifully follows the protocols and ushers the patient out before he is well enough to leave, his privileges may still be at risk from a negative patient satisfaction survey.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY
Traps in EHR Adoption. Physicians who are contemplating the adoption of electronic health records systems to qualify for incentive payments for Medicare or Medicaid need to be aware of two issues: First, the interoperability standard that the federal government was supposed to release in December 2009 has, to my knowledge, still not been released. How can different entities communicate with each other to meet meaningful use standards if there is not an interoperability standard that software vendors can write code for? Second, the onerous and stringent meaningful use standards will be difficult to meet. When the standards were published in July, no current vendor was certified as compliant. HHS only selected two companies to evaluate and certify vendors in September. If a physician publishes an EHR system in the next 4 months to meet the deadline for incentive payments, and the vendor is not certified, the physician may be noncompliant.
Buying an EHR system in the hope of qualifying for and receiving incentive payments is at best a gamble. Physicians caught in this trap may end up bankrupt and forced into employment. Physicians without EHRs by 2014 will have government payments increasingly cut. Privately contracting with patients seems to be the only way to remain in independent practice long term.
Lee A. Balaklaw, M.D., Louisa, KY
EHR Bait and Switch. At an internet meeting of a local hospital, vendors from EHR, eRx, and eClaims companies were presenting the latest on Meaningful Use (MU) and qualifying for the $44K –$65K incentive funds. A past chief of staff discussed the good and bad of his system, which is supposed to be straight in line with the requirements. Someone asked whether he could upload information from some similarly qualified physicians, and the answer was “no”! One prominent physician mentioned, and a vendor confirmed, that some pharmacies couldn’t handle the eRx. The clearing house converts the eRx to a fax, and faxes it to the pharmacy.
The whole reason we are supposed to be doing a national health information exchange and a certifiable government-approved EHR is so “data” can flow between “providers” (and, wink, wink, so the government, insurance companies, and managed care companies can grab it for their own purposes). Now the truth comes out. The “interoperability” they were talking about is a fantasy. It doesn’t exist.
Wayne L. Iverson, M.D., San Diego, CA
Not a Slave. In my 30 years of practice, I have seen medicine go from a noble profession to a base occupation for most. In the social, political, and economic affairs of men, nothing happens suddenly. One thing builds on another, and then there you are.
Someone once said that a man cannot be enslaved without his consent. I have never signed a private insurance managed care contract. Now I have given up my practice of surgery to avoid the enslavers and to continue to practice medicine as a noble profession. My privileges at two hospitals “lapsed” because I refused to sign a statement essentially agreeing that I would not be my patients’ advocate. At the time, some of my patients were signing a statement headed “Patient’s Instructions for Reviewers” and “Hospital Chart Advance Directive.” It provided that “the reviewer must obtain express written consent by me to review my chart”—after explaining in writing and in person the reason for reviewing the chart and what benefit or harm such a review could cause to the patient. [A copy is available on request.] The statement drew a threatening letter from a Washington, D.C., attorney representing the Medicare reviewers from West Virginia. He threatened to blacklist me with the Office of the Inspector General. I reported him to the OIG for conspiring to violate my patients’ constitutional rights. No action was taken against me. Sen. Santorum’s office told me it was a “hot potato.”
I ask: Why does a woman of 17 have a privacy right to an abortion, but a 70-year-old woman has no right to privacy regarding her medical records and care?
Perhaps in the future I can resume the practice of surgery.
I see where this is going, but I don’t know where it will go.
OBAMACARE DELENDA EST.
Frank C. Polidora, M.D., Hazleton, PA