AAPS News October 2014 – ObamaCare Kudzu

AAPS News October 2014 – ObamaCare Kudzu
Sep 24, 2014
Volume 70, no. 10 October 2014

With its complicated structure and phased implementation—and strategic modifications and delays that blunted opposition, ObamaCare is becoming deeply entrenched.

Former congressman Ernest Istook writes: “Obamacare was designed to be the governmental equivalent of kudzu—growing everywhere, propagating by multiple means, and sinking in its roots and becoming impossible to control.”

Kudzu (Pueraria lobata), native to Southeast Asia, is an invasive plant in the U.S., outpacing herbicide spraying and mowing. It can smother trees and envelop entire structures. At first used to shade porches, it has become “the vine that ate the south.”

Kudzu chokes off normal plants. If you let it go too far, and then kill it, you don’t get your trees and garden back. The Affordable Care Act (ACA) has wiped out millions of insurance plans, plus many small hospitals and independent medical practices.

Uprooting ACA was made especially difficult by advance appropriations of billions of dollars up to and beyond 2020, bypassing the normal appropriations process, Istook explains.

Obama is now unilaterally giving a reprieve to some “junk,” “substandard,” or “cut-rate” plans offered by “bad apple” insurers to avoid a wave of cancellations before the 2014 election, writes Chris Conover (Forbes 3/6/14). If Progressives continue to control the Senate, the ACA kudzu will presumably be safe to complete its takeover.

At the same time, HHS is sinking the ObamaCare lifeboats, writes Ed Haislmaier of the Heritage Foundation. The Republican Congress took the first step toward federal insurance regulation with HIPAA, but these did not apply to “excepted benefits.” Now the Obama Administration is proposing a regulation that states that “hospital indemnity or other fixed indemnity insurance,” as such policies are termed in HIPAA, qualifies as an excepted benefit only if it is “provided only to individuals who have other health coverage that is minimum essential coverage.”

Indemnity medical insurance, which allows the policyholder to decide how to spend the benefit, has mostly been replaced by “service benefit” policies that pay doctors and hospitals directly according to negotiated rates. But despite the ACA tax it is a reasonable back-up plan for those fleeing ACA’s mandates and huge premiums (NRO 3/21/14).

The Roots of Bureaucratic Kudzu

The proliferation of bureaucracy did not start with Obama. Mark Sklar, M.D., dates the beginning of changes that are making medical practice unsustainable to the managed-care models that were developed in the 1990s. He cites Medicare’s “meaningful use” and the Physician Quality Reporting System (PQRS). ACA’s “medical homes” will “only add more bureaucracy and enrich the consultants and companies organizing these entities.” Unlike the government, Sklar believes that “the average American has the intellectual capacity to judge” (WSJ 9/11/14).

This idea was offensive to the Progressives of the early 20th century, who thought that only the educated elite could make wise decisions for the masses, explains Greg Scandlen. The Progressive movement attacked the fraternal associations that provided most medical benefits and life insurance in the U.S. and Britain. It opposed self-help and traditional virtues such as thrift because they got in the way of the preferred dependency and loyalty to the State, as well as an economy ever more dependent on consumer spending.

Conover asks whether Barack Obama is a pragmatic politician or a believer in progressive fascism, which, as defined by Jonah Goldberg, “views everything as political and holds that any action by the state is justified to achieve the common good. It takes responsibility for all aspects of life. Additionally, it “seeks to impose uniformity of thought and action, whether by force or through regulation and social pressure.”

Dependency on Legal Plunder

State dependents are supported by redistribution of wealth. How does one garner enough political support to cut benefits when almost everyone receives something and feels entitled to it because he is also taxed?

When everyone plunders everyone, as Frederic Bastiat put it (The Law, 1850), the moral roots of society are corrupted. Mish Shedlock presents the “Moral Dilemma: Should a Libertarian Who Does Not Need Food Stamps, but Qualifies for Them, Take Them?” How would your grandparents have answered this question? Shedlock’s answer: “There is no moral dilemma. Take the money and run.” It is, however, not possible to hide, and those who are accused of violating the rules are subject to increasingly draconian penalties.

Shedlock notes that when Ayn Rand was asked a comparable question about accepting research grants from the government, she responded that the looting victim had every right to some restitution. Why should only the supporters of statism and redistribution get the spoils?

But who pays the “restitution”? The state has nothing that it has not first taken from some other “paying victim.”

Bastiat proclaimed that “nobody plunders anybody” is the “principle of justice, peace, order, stability, harmony, and logic.”

To stop the kudzu, we have to refuse to take the loot.

Strangled by Red Tape

Since 1976, federal agencies have issued more than 180,000 new regulations. Between 2000 and 2013, agencies issued 4,468 “significant” rules (more than $100 million in cost or of a novel nature) and 30 rules with an estimated cost greater than $1 billion annually. Of the 30 most costly rules, the U.S. Environmental Protection Agency (EPA) issued 17. More than 97% of the EPA’s claimed benefits between 2000 and 2013 come from reducing fine particulate matter (PM2.5—a.k.a. dust, soot, or “carbon”), which often is not the pollutant EPA cites as justification for the rule. The national average concentration of PM2.5 (7.5 μg/m3) is already 30% below the EPA’s 2013 standard (12 μg/m3), but the EPA keeps citing further reductions as benefits of complex, costly rules. The U.S. Chamber of Commerce different-light calls for a Truth in Regulating law.

Calculations cited by the American Lung Association and American Academy of Pediatrics on fewer premature deaths or asthma attacks rely on extrapolations from small associations reported in poorly designed and non-replicated epidemiological studies analyzed by John Dale Dunn, M.D., J.D., in our journal.

ACA Kudzu

  • Impact Incalculable: Because there are no reports on whether savings or revenue-raising provisions are having the projected effect, the Congressional Budget Office (CBO) cannot assess the overall fiscal impact.
  • Duplicates: The 8 million enrollment figure was announced without even removing duplicate applications from the file.
  • Cost per Enrollee: According to the Congressional Research Service, the average cost of the 15 state-run Exchanges was $1,506 per enrollee, and for the 36 states with federally run Exchanges it was $922. The cost per paper application processed by the government contractor Serco was reportedly $11,600. Under the fixed-price contract, many employees were paid for doing nothing at all (PJ Media.com 5/22/14).
  • Government Share Surging: Government at all levels is expected to be responsible for 48% of U.S. health-related spending by 2023, up from 41% in 2008. Taxpayers are subsidizing 76% of premiums for Exchange-purchased plans.
  • Medicaid: An unknown number of 6 million new Medicaid enrollees, owing to dysfunctional federal income verification, may be ineligible. State taxpayers are out the full cost of the undeserved coverage, regardless of the recipient’s income (Forbes 6/12/14).

♦ ♦ ♦

“Civilization can only revive when there shall come into being in a number of individuals a new tone of mind independent of the one prevailing among the crowd and in opposition to it. A new public opinion must be created privately and unobtrusively. The existing one is maintained by the press, by propaganda, by organization, and by financial influences which are at its disposal. The unnatural way of spreading ideas must be opposed by the natural one which goes from man to man and relies solely on the truth of the thoughts and the hearers’ receptiveness of new truth.”
Albert Schweitzer


Patients are looking for private physicians. If you are willing to see direct-pay patients, even if not yet totally third party free, list yourself at aapsonline, under “doctors” tab.

AAPS 71st Annual Meeting

In Charleston, SC, Richard Amerling, M.D., of New York, NY was installed as president, and the following were elected:

President-elect: Melinda Woofter, M.D., Granville, OH
Secretary: Charles McDowell, Jr., M.D., of Johns Creek, GA
Treasurer: W. Daniel Jordan, M.D., Atlanta, GA
Board of Directors: Kenneth Christman, M.D., Dayton, OH; Albert L. Fisher, M.D., Oshkosh, WI; Paul Martin Kempen, M.D., Weirton, WV; Josh Umbehr, M.D., Wichita, KS; and James H. Vernier, M.D., Hampshire, TN.

Flashback: German Economic Miracle

In 1945-1948, German industrial production had fallen to 40% to 50% of its prewar (1936) level, and people were subsisting on 1,000 calories/day. The main problem was not the damage from bombing but from continuation of Nazi wage and price controls and the legal tender status of the Reichsmark. In June 1948, the deutsche Mark was introduced. One historian said: “we have the completely paradoxical situation that instead of money being created by the State, the State was created by money.”

Immediately after formerly obscure economics professor Ludwig Erhard was named Minister of Economics, he issued the “Sunday decree” ending rationing and wage and price controls. “The only ration coupon is the Mark,” he said.

The Occupation authorities were aghast. Erhard had challenged the socialist climate under which Germany had lived for a quarter of a century. While the British and French economies still labored under rigid controls, by 1951 German industrial output had grown at a compounded rate of 29%.

The change in Germany was sudden, not incremental. And while the role of government remained large, it changed markedly in its functions. In the U.S., Reagan’s changes might have been too slow to keep the “iron triangle” and self-serving “experts” from scuttling needed reform (Research Reports by the American Institute for Economic Research 3/30/1981).

Today Germans pay cash for almost everything, perhaps partly because of their tumultuous monetary history. There was the Weimar hyperinflation. Then Hitler financed the war by printing money, keeping inflation at bay through a uniquely fascist policy of strict price controls and violent threats.

“Inflation is a lack of discipline,” Hitler said. “I’ll see to it that prices remain stable. That’s what my storm troopers are for.”

AAPS Calendar

Jan 9, 2015. Thrive, Not Just Survive XXI and
Jan 10, 2015. Board of directors meeting, New Orleans, LA.
Oct 1-3, 2015. 72nd annual meeting, St. Louis, MO.

Lexicon for CMO Academy

A new academy for physician executives, developed in collaboration with the Joint Commission (see p 4), whose officers will teach many of its $2,000 courses, will teach hospitals how to exert more control over physicians. Dr. Huntoon suggests translations for some of the course objectives:

“Understand general concepts of change management for team buy-in” and “develop and implement recruitment, selection and retention strategies for clinical staff.” [How to eliminate independent physicians from the hospital]

“Use corrective discipline to mitigate workplace behavior problems.” [How to use peer review and code of conduct to remove physicians who refuse to acquiesce to hospital authority]

“Explore strategies for effectively coaching team members.” [Use “utilization nurses” to pressure physicians to comply with protocols and to keep referrals within the hospital system.]

“Articulate business models for health care organizations,” and “recognize how to make effective resource allocation decisions” with “measurement reporting and benchmarking.” [Ramp up Accountable Care Organizations where hospital is in charge. Hospital will implement strict cost-containment treatment protocols and monitor physician compliance.]

“Gain physician buy-in.” [Convince physicians that giving up their independent judgment is the right thing to do.]

“Discuss strategies for aligning requirements with performance improvement initiatives and maintenance of certification.” [How to make MOC mandatory in your hospital]

Standards of Justice

Despite its notoriety, the Spanish Inquisition had a rate of capital punishment only one-third that in the U.S. over the past 200 years, writes psychiatrist Samuel Nigro, M.D., who recently completed a prison term because of his pain-management practice. The standards of evidence were meticulous and exact. Truth and justice were sought in every case. The acquittal rate was 15%, compared with 1% in U.S. federal courts today (about 67% of the 3% who brave a trial are convicted).

“I should wish for any judge of the Spanish Inquisition, in preference to most of the judges in the world today,” Nigro wrote (Social Justice Today, November/December 2006).

[See AAPS News, November and December 1998.]

Church/State Separation

After Hobby Lobby, Jennifer Rohack Morse writes that the State “will allow the Church to be independent of the State, but only for things they think don’t matter”—such as Communion and Christian burial, but not child custody or property settlements. And “the State is daily expanding its concept of what is important.” The government still believes it has a “compelling interest” in seeing that all women have cost-free access to all FDA-approved birth-control drugs and devices. It will simply have to find a “less restrictive” means to achieve it.

Separation of Church and State means that the Church must leave the State alone, not that the State must leave the Church alone. The State will decide what the Church is allowed to do (Samaritan Ministries, Christian Healthcare Newsletter, August 2014).

Compliance Notes

  • HIPAA Audits: In the first round of audits, 89% of covered entities failed to pass. Fines start at $100 per violation and are capped at $1.5 million per year (Medical Practice Compliance Alert 8/14/14). HIPAA audit protocol: http://tinyurl.com/os3ed9v.
  • Interpreters: If you receive federal funds through Medicare, Medicaid, or an ACA-Exchange plan, you must provide qualified medical interpreters for limited-English proficiency (LEP) or hearing-impaired patients. The interpreter must have received at least 40 hours of training to qualify. A treating physician who speaks the patient’s native language may “interpret” for his own patient, but not for a colleague’s, unless “qualified.” Do not use Skype or other free videoconferencing services for remote interpretation because they are not HIPAA-compliant (ibid.).
  • EHRs: Contractors will be scouring for “cloned” notes, which could lead to denials or fraud charges. Beware of copy-pasting even if EHR templates make it difficult to create a problem list or record multiple diagnoses (ibid.).
  • Undercoding: Physicians may think that undercoding (which may occur in 30% of evaluation & management services) might get auditors to leave them alone. It won’t (MPCA 6/23/14).

Concierge Giant Sued

MDVIP, the “alpha dog in the growing health care niche,” has been sued by Signature MD on antitrust grounds. MDVIP’s restrictive covenants prevent doctors from practicing concierge medicine independently or with another company. Plaintiff alleges that MDVIP uses the courts to bully competitors and former employees, and to conduct a form of corporate espionage (http://tinyurl.com/lpv6eg9).

Is MDVIP needed? AAPS “Thrive, Not Just Survive” workshops help physicians become truly independent (see videos on http://aapsonline.org/freedom). Dr. Doug Nunamaker and Dr. Josh Umbehr of AtlasMD offer consulting advice free of charge to all doctors to help the movement grow. They also have a blog and podcast to help answer common questions.

Tip of the Month: Dr. Lawrence Huntoon writes: CMS is using the “ordering and referring rule,” which went into effect in January 2014, to corral physicians who are not in the Medicare program. Physicians who are not enrolled in Medicare can fill out the CMS 855O form, for the sole purpose of enabling them to order and refer for their Medicare patients. This enrolls the physician in PECOS but not in Medicare. Most physicians who are opted out are already in PECOS. You do have to have an NPI to complete the CMS 855O form.

Healthcare.gov Documents Released

In response to a Freedom of Information lawsuit filed by Judicial Watch, HHS released 94 pages of documents (http://tinyurl.com/lpb6c5a) showing that CMS rolled out Healthcare.gov despite knowing of massive security risks. The proposed date for correcting a “limitless risk” was 8 months after launch. The privacy of millions was knowingly endangered for political reasons (http://tinyurl.com/mu3lfzd).


The Joint Commission Made Us Do It. Hospitals lobby the Joint Commission to adopt standards that help the hospital gain power over physicians. When physicians complain about loss of ability to use independent judgment, the hospital simply says that the Joint Commission requires implementation of this standard. Hospitals are now apparently urging the Joint Commission to make Maintenance of Certification (MOC) mandatory for medical staff privileges, in collaboration with the American College of Physician Executives (ACPE), which includes hospital chief medical officers. These CMOs are the ones who most often spearhead sham peer reviews. Physician executives do not take kindly to physicians who speak out against MOC.
Lawrence R. Huntoon, M.D., Ph.D., Lake View, NY

Government-Controlled Mental Health. The ever-expanding Diagnostic and Statistical Manual of Mental Disorders (DSM) had nearly 1,000 pages of mental diagnoses in version IV (2000). The government could use this like the Malleus Maleficarum (1486), which defined witchcraft, to stigmatize, incarcerate, and “treat” nonconforming (“mentally ill”) citizens.
Bud Goltry, M.D., Boise, ID

The DSM Bible. The DSM’s ludicrousness derives from its failure to differentiate patients’ problems from their symptoms. Psychiatry has been called the only business in America in which the customer is always wrong. The DSM shows how.
Nathaniel S. Lehrman, M.D., Brooklyn, NY

Where the Money Is. The U.S. system now overwhelmingly rewards regulators rather than those who provide patient care. Top ten ABMS board member salaries from 2011 IRS forms 990 are multiples of physician compensation in the corresponding subspecialty (http://tinyurl.com/lm84z2f). To me it seems that we are not seeing a definition of “medical professionalism” in the credentialing juggernaut that these private organizations have created. We’re seeing the definition of “greed.”
Westby G. Fisher, M.D., Evanston, IL

Will Your Doctor Be Blacklisted? The scariest 23 words in ACA: Section 1311(h) titled “Quality Improvement”: “Beginning on January 1, 2015, a qualified health plan may contract with…(B) a health care provider only if such provider implements such mechanisms to improve health care quality as the Secretary may by regulation require” [emphasis added].
Twila Brase, R.N., Citizens’ Council for Health Freedom

When the Patient Pays. Fee-for-service is not the problem—it’s the third-party payer. When I worked briefly in Macau, China, where patients paid everything out of pocket, I had patients ask to postpone tests until they got paid. It forced me to have a better conversation about what they needed and why (or sometimes didn’t really need at all). I believe they received better care, and the patient-physician relationship was better. And I only had to write enough in the chart to remember what I did, instead of filling it with junk that only billers and lawyers care about.
Michael T. Dorrity, M.D., Mt. Pleasant, SC http://on.wsj.com/1rIisvs

Only Way Out. Every doctor who works in a hospital or anywhere except for an independent practice will have to participate in PQRS reporting. The only way to avoid it is to refuse to accept Medicare—as growing numbers of physicians, including me, are doing. In Medicare, they face CMS rules that reward doctors for avoiding patients who need them the most (Forbes 7/20/14).
Gerard Gianoli, M.D., Covington, LA

Manipulating Medicine. In Obama’s new “group medicine,” master manipulators seek to transform physicians from compassionate, personal healers into cold-hearted weapons of mass discrimination. This is rotten to the core. It is being implemented through a radical transformation of medical education, funded and sanctioned by ObamaCare, much like Common Core.

The MCAT will change for only the fifth time since the 1920s. It will deemphasize biology, chemistry, and physics, to give more weight to sociology and psychology, where the “correct answers” are of a relative or politically correct nature. The implications of this transformation cannot be overstated. A new breed of like-minded doctors can now be selected.
Kristin S. Held, M.D., San Antonio, TX http://krisheldmd.wordpress.com/

“Shared Goals.” In 2010, Michael Porter of the Harvard Business School wrote in NEJM: “In any field, improving performance and accountability depends on having a shared goal that unites the interests and activities of all stakeholders.” That sounds very insightful and meaningful, but I can’t think of a single instance of its being true. With every significant innovation, ever, the “shared goal” of existing stakeholders is to divvy up the market and keep out competitors.
Greg Scandlen, Consumers for Health Care Choices http://healthblog.ncpa.org/value-based-payments/

Declaring Independence. In the past 2 years, cash-only practices have increased from 3% to 6% of practicing physicians, and concierge physicians from 1% to 3%.
Thomas W. LaGrelius, M.D., Torrance, CA

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