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Association of American Physicians and Surgeons, Inc.
A Voice for Private Physicians Since 1943
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Volume 54, No. 1 January 1998

The Right to Medical Care

In 1975, federal courts decided that beneficiaries of government programs had no right to freedom of choice in their medical care. Robert H. Bork, U.S. Solicitor General, wrote in his Motion to Affirm Judgment in the case of AAPS v. Weinberger, which was brought to challenge the Professional Standards Review Organization (PSRO):

Patients whose medical care is provided by public funds have no constitutional right to whatever care [their physicians] using "the highest standards of medical practice"...may "judge necessary"... or to obtain that care "from a physician *** of their choice."

Because of concerns about escalating costs, the PSRO law, including a multiple (physician) approval system "through which physicians are tricked into believing they would control the program instead of bureaucrats," was "slipped through Congress in 1972 by being buried in a 900-page bill amending the Social Security Act," according to an AAPS news story.

AAPS challenged the constitutionality of the law on the grounds that it interfered with physicians' right to practice their profession and also denied patients the right to discuss their illnesses in confidence.

A three-judge panel in the District Court for the Northern District of Illinois dismissed the case (J.S. App. 2a-30a; 395 F. Supp. 125), arguing that the PSRO only provided "standards for the dispensation of federal funds." The Judges wrote:

Underlying the constitutionality of the challenged legislation is the basic premise that each individual physician...has the ability to choose whether or not to participate in the program. It is true that there will exist economic incentive...to participate in the program. However, such inducement is not tantamount to coercion or duress.

The decision was appealed directly to the U.S. Supreme Court, which affirmed.

At the time, there were no implementing regulations, so concerns about the law's impact could be called "speculations."

The PSROs denied payment prospectively. As U.S. attorneys wrote in their Motion to Affirm, "the alternative-to deny payment after a post hoc review-entails significant waste of resources and disappointment to physicians and institutions that have rendered services in the expectation of payment." Today, of course, physicians experience both post hoc denial of payment and potential criminal punishments.

Most importantly from today's perspective, U.S. attorneys argued for the constitutionality of PSROs on the grounds that they did not actually require the physician to prescribe or refrain from prescribing any form of treatment because "a physician remains at liberty...to forego reimbursement in any particular instance [emphasis added]."

It is this liberty that the Balanced Budget Act of 1997 apparently attempts to abrogate in the provision that protects freedom of contract only if the physician refuses Medicare reimbursement for all services for two years.

It is within the context of his opposition to extending this protection that the proposed Clinton Patient "Bill of Rights" (see p. S2) should be examined. Clearly, the Clinton approach is fundamentally in conflict with the Bill of Rights in the U.S. Constitution, which is based on the concept of self-evident rights that neither the government nor other citizens may justly violate.

The real right to medical care (discussed in depth by George Reisman in a pamphlet entitled "The Real Right to Medical Care Versus Socialized Medicine," available for $3.25 from the Jefferson School, PO Box 2934, Laguna Hills, CA 92654) is not an affirmative claim to economic goods. Such claims necessarily imply the right to steal from or to enslave others, thus violating their right to life, liberty, and property.

The real right to medical care depends on the right to free exchange and the freedom of contract. It is violated when one is prevented from obtaining care by the initiation of or threat of force. No rights are violated simply because care may be unavailable or unaffordable.

Real rights are not optional-in contrast to Clinton's proposed consumer protections. Clinton will simply "challenge" health plans to come into "voluntary compliance." He acknowledges that compliance by federal agencies may be blocked by statutory impediments.

The only obligation imposed by real rights is to respect the rights of others. Clintonite "rights" come with volumes of associated obligations (which, so far, stop short of imposing a duty to die). This should be no surprise. We have already seen, with Medicare, the price of staking a claim to resources seized from taxpayers.

How can we restore patients' rights?

A coalition of market-oriented consumers' groups is drafting a Statement of Principles based on the AAPS Patients' Bill of Rights that incumbents and candidates for office will be asked to sign. The concept is like the Taxpayer Protection Pledge already signed by more than 200 U.S. Representatives, 40 U.S. Senators, and nearly 1,000 state legislators. The four principles include freedom of consumer choice (specifically, the right to obtain and pay for services outside a "plan"); freedom from government rationing and controls; freedom from invasion of patient privacy; and freedom from entitlement creation or expansion.

AAPS will continue to advocate expanded protection of the right to free exchange and private contracts.

To win the battle for patients' rights, we must first clearly understand what those rights truly are.

AAPS News, January 1998 1

Arizona Doctors Oppose KidCare

Although the state medical association may consider support for KidCare to be a "no brainer," the support of the medical profession is not a foregone conclusion. AAPS sent a questionnaire to all Arizona office-based physicians. Results based on the first 300 respondents show that 60% are opposed to bringing $113 million federal KidCare dollars to the state to match a $36 million expenditure from state funds, while only 24% are in favor. (The remainder are neutral.) The strongest support for the program was from pediatricians (18 of 30 or 60% are in favor.)

Of the responding physicians, 75% agree with the statement that KidCare is a new entitlement; 58% agree that the number of children insured under private plans will decrease; 66% agree that KidCare money will strengthen the hold of managed care and make it more difficult for independent physicians to survive; 82% agree that accepting federal dollars means accepting federal control; 76% agree that accepting federal dollars means empowering special interest groups; 75% agree that under KidCare, more medical care will be delivered in school-based clinics by paramedical personnel; 77% agree that government subsidies have tended to increase costs; and 70% agree that once programs such as KidCare are enacted, the legislature has little control over the actual functioning of the program.

On the other hand, only 23% agree that children will get better medical care if KidCare comes to Arizona. Only 5.8% agree that parents cannot be trusted to make the best decisions about their children's medical care and that government supervision is needed.

A number of physicians also offered comments. "Physicians' incomes would not increase, but HMO administrators would make more profit."

"The road to slavery is paved with noble intentions."

A pediatrician noted that the Arizona Health Care Cost Containment System (the original forced managed-care Medicaid substitute) increased cost without improving care to children. "Much money is wasted on lead levels, but we can't get food, books, or adequate day care."

"It's the same old socialist Putsch since the days of the Hill Burton Act," said an orthopedic surgeon.

"I hope the `nanny state' does not shake us until we die," said a dermatologist.

"Sorry, I just can't get excited about `creeping socialism,' but I'll tell my children to do something other than medicine," commented an uncommitted anesthesiologist.

"Through its complicity, the AMA is selling us out," opined an emergency physician.

"The difference between the welfare state and the police state is only a matter of time. Government meddling and malfeasance has probably quadrupled the cost of care in the past 50 years," wrote a gastroenterologist.

Emotions ran high in the other direction as well, with one doctor comparing the questionnaire's author with (you guessed it) Attila the Hun.

Copies of the questionnaire are available on request or can be downloaded from AAPS Online.

Foundations Under Fire in Harrisburg

On Nov. 18, AAPS Executive Director Jane M. Orient, M.D., testified in hearings on the Private Influence Reform Law (House Bill 975) before the House State Government Committee in Harrisburg, PA. The bill, introduced by Rep. Sam Rohrer and 23 others to curb undue influence by private foundations, states:

The General Assembly finds that some executive agencies have abused their delegated power to administer statutorily authorized programs by tailoring those programs to the specifications of private entities, particularly nonprofit foundations with public interest agendas, in connection with the receipt of funding from those private organizations. This disturbing practice has occurred without adequate legislative oversight.

Materials obtained in discovery as a result of the lawsuit AAPS v. Clinton were helpful in elucidating the role of organizations such as the Robert Wood Johnson Foundation in enacting Clinton-style reforms in the states.

"Grantmaking is not lobbying," stated Dr. Orient, "however, it is potentially a way of buying influence that neatly circumvents laws that apply to a labor union or a Political Action Committee."

Dr. Orient noted that the initiatives promoted by RWJF are at first glance noncontroversial and, in fact, boring. "It was only the secrecy of the Task Force that sparked enough interest to take a closer look at what was hidden in plain sight behind a smokescreen of utter banality." She analyzed the implications of the chronic care and immunization initiatives.

Also testifying was Twila Brase, R.N., President of Citizens for Choice in Health Care of St. Paul, MN. Ms. Brase outlined the disastrous effects of RWJF-sponsored "reforms" in Minnesota both on children's medical care and the health insurance market. [Rep. Rohrer's Medical Sentinel article on the medicalization of the schools through KidCare, and Dr. Orient's testimony, are available at AAPS Online. Clinton Task Force documents are available on CD-ROM and on line-call (800)635-1196.]

New Coding Errors

The new E&M (evaluation and management) codes, a joint effort by HCFA and the AMA, are causing great consternation. The two versions, one published by HCFA and the other published by the AMA, are not quite the same. The AMA "CPT Assistant" published in July instructs the physician to perform and document "at least two elements identified by a bullet from each of nine areas/systems." But HCFA thinks it should read: "Perform all elements identified by a bullet in at least 9 organ systems or body areas and document at least two elements identified by a bullet from each of nine areas/systems." A HCFA official admits that the guidelines are unclear. AAPS has no advice except that offered in April, 1990, by the late Robert S. Jaggard, M.D.: "I told my secretaries NO MORE CODE NUMBERS."

Dr. Jaggard objected to the statement that only the doctor could provide the correct codes, noting that auditors had the final say. "Obviously, if the auditors can change a given code number [say 12345] to some other number [say 12347], then the auditors can change a blank space [code ____] into whatever code number they want." He noted that changes in code numbers were being made with increasing frequency and that "cooperative" doctors who helped with the insurance companies with their function of coding were being forced to pay back large sums of money. (Also see p. 3.)

AAPS News, January 1998 2

Medicare in Massachusetts

The December issue of AAPS News states that "in Massachusetts...one must sign a Medicare Participation Agreement to be licensed..."

That is not entirely correct. The statement that a physician must sign on his license applications says that he will not charge to or collect from a Medicare beneficiary a sum greater than the amount approved by the Secretary of Health. In fact, the judge who heard the appeal protesting this law stated: "There is nothing in the bill which compels a physician to participate in Medicare." I'm sure his tongue was firmly in his cheek when he said this, as many would consider it a moot point whether a doctor "participated," as long as he was bound to accept the government's price for all services, and his patients were penalized for selecting him, since the approved amount for a nonparticipating doctor is 5% less than for a participating one.

The penalty for charging or collecting more than the approved amount is, as you pointed out, loss of one's medical license.

This law, passed in 1986, which imposed conditions on a professional license unrelated to competence to practice, was upheld because of a previous ruling against nurses who had objected to having to sign a statement that they had paid their state income taxes in order to receive a nursing license.

A few years later, lawyers also objected to having to sign this attestation as part of their license. They were exempted by the Supreme Judicial Court from this requirement because it was an affront to their dignity....

For the time being, I am one of a handful of nonparticipating doctors in Massachusetts. If the course of events in Canada is any guide, it is only a question of time before this option is declared illegal. When more than 90% of physicians have voluntarily entered the corral, very few people will notice when the gates are locked. I'm sure the Medicare carrier does not like sending checks to individual patients (it shows how wasteful and expensive low-deductible "insurance" is), but for now, the law does require them to do it.

The only point in continuing as long as possible, I suppose, is the possibility that Medical Savings Accounts will supplant HMOs as the preferred choice for seniors, if they haven't all forgotten how to deal directly with their doctors. I try to keep the form alive (symbolically), in hopes for the brighter tomorrow. The other factor prompting my return to nonparticipating status two years ago was the obvious absurdity and affront to my dignity of government bureaucrats dictating the "value" of my services to the penny. This in an age when pennies are left in little plastic trays at convenience stores and the man who makes my sandwich for lunch tells me not to bother about the pennies.

Bernhard Heersink, M.D., Newburyport, MA

A Doctor's Thoughts on AAPS v. Weinberger

In 1973, when I was President of AAPS, we noticed that Congress had passed a law, in its hectic closing days, that provided for political committees to oversee-and to overrule- the actions of physicians who were treating patients in the Medicare and Medicaid programs. AAPS also noted that the Supreme Court, in January 1973, had thrown out a Georgia law that required a committee to approve specific treatments for certain patients. We filed suit.
We lost. You lost. All patients lost. Courts like to split hairs, to decide issues on fine technical points. The US Supreme Court did not repudiate the doctrine established in January 1973 that government could not require committee approval before a doctor could treat a patient. Rather, they ruled that the government could set up a committee and require approval if the doctor wanted to be paid by the government. The doctor could treat the patient, yes, but he would not be paid by the government unless prior approval had been given.

The good part of that Supreme Court decision was the statement that the individual doctor does NOT have to be part of the program.

After that decision in 1975, I published this information plus my statement that I was NOT part of the government medical programs.

Some doctors quit medicine altogether and some stopped treating Medicare patients rather than get involved in the new coding regulations developed at that time. I decided to continue in general practice, to see all patients who sought my care, to try to do my best for each individual patient, and to remain a private and independent physician. I decided to treat the patients at no charge rather than get involved in legal hassles with bureaucrats whose primary goal was control.

Before 1988, I was in partnership with Dr. Jack, who tried to work with the system, doing those things that made it easier for patients to get benefits from various programs. He used to sign the certificates, talk to the bureaucrats, code the procedures, and so on. But he quit. The patients who used to get good medical service from him, in addition to all that coding and so on, now got nothing from him because he was not available for any service at any price. That is how the government "provides" care to people.

Dr. Jaggard does NOT have any contract with anybody other than the patient. When an insurance company says that Dr. Jaggard is not "cooperative," they are actually saying that he is not subservient to them, and he does not bow to them to get their "easy" money. I know that my policy has created a problem for some patients. For that reason, I have also established the policy that I will refund any fees paid by any patient who is not happy for any reason.

I urge you to take a long, hard look at what is going on in American medicine and see what is happening to patients and doctors. Ask yourself: What kind of doctor do I want to have when I get sick?

Robert S. Jaggard, M.D., Oelwein, IA, April 22, 1990
[Dr. Jaggard died March 4, 1993.]

Medicare Investigator Sentenced

In April, 1997, a Medicare Part A investigator came to our local hospital to conduct an investigation. He spent his first night in a Jamestown hotel. He spent the next four nights in the Chautauqua County Jail in lieu of $1500 bail.

The investigator had amused himself by making telephone calls claiming to be a psychologist conducting a sex survey. He got a free ride to the jail when one of the victims of sexual harassment, who had caller ID, called the sheriff.

The investigator pleaded guilty to multiple intentional acts (a pattern of abuse) and was fined $250 plus court costs. Physicians that he investigates can be fined $10,000 for an unintentional single episode of Medicare coding error.

Lawrence R. Huntoon, M.D., Jamestown, NY

AAPS News, January 1998 3

Members' Page

The Secret Fence. The invisible fence being constructed to corral physicians into the pen of strict government control is built of secret parameters concerning "medical necessity." This key issue is both chameleon and land mine.

The definitions that trigger intrusive audits are a state secret. As Dr. Edward Michael Cox of Upstate Medicare puts it, "Repeatedly, providers and laboratories have sought to have the parameters of various testing released to them," but Medicare regulations forbid this. Those who are "outliers" are likely to be targeted for a raid. Two of the three settlement options that may be offered to such physicians require them to waive their right to a hearing (MSSNY, Nov. 1997).

Although information from the Agency for Health Care Policy and Research states that "physicians who follow practice guidelines are practicing medicine on a bowl of Jell-O because many of the current guidelines don't have a solid foundation," the government's Technical Advisory Committee is busy deciding what tests and treatments are needed for various illnesses. Accurate diagnostic tests that "do not change a patient's treatment plan" are unreasonable and unnecessary. Billing anyone for the use of lower-risk, low-osmolar contrast media is forbidden unless the patient meets one of five government-approved conditions.

Feeling penned in yet? It all makes you wonder when physicians are going to be fitted with those little dog collars that deliver a shock when they reach an invisible boundary.

Lawrence R. Huntoon, M.D., Jamestown, NY

Entrapment. The documentation requirements for Medicare/Medicaid are an impossible set-up, a bureaucratic entrapment mechanism with a kangaroo court. To get caught up in this is suicide. The rules, guidelines, and codes cannot actually be met except at the pleasure of the Medicare reviewer. Get out of or do not get into Medicare/Medicaid....

The codes are a loaded gun; the words "you should have known" are the universal noose. Furthermore, you have to cheat to survive. Those in the know rotate codes inappropriately so they will not be "out of peer norms," while those honest providers accurately using their routine codes will probably have exceeded norms and be targeted for audit. Reject their money and get out. At least the reduction in income will be your choice.

Samuel A. Nigro, M.D., Cleveland Heights, OH

Hallmarks of Totalitarianism. The Star-Ledger of Newark, NJ, could think of only three reasons for Medicare patients' wanting to receive private treatment: "They are filthy rich, stupid, or need a doctor who refuses to be bothered with Medicare." Dr. Eck suggests that doctors might have good reason for refusing Medicare- and patients might also:

When Medicare costs rose exponentially, the government imposed "limiting charges"; doctors accepted it. But now, as Medicare is cutting fees and services even further, its only weapons to keep doctors under control are fines and imprisonment, or barring them from treating any Medicare patients at all. Consider what will happen after January 1:

Suppose a doctor is afraid to perform an EKG that a post-service reviewer will say is unnecessary. Now, an elderly patient, who is nervous about his heart, might say, "Please, doctor, do an EKG just so I can feel reassured. I'll pay cash and Medicare doesn't even have to know about it." Would it violate the law to grant that patient's request?

Coercion, fines, imprisonment, and poor quality are the trademarks of totalitarian states.

Alieta Eck, M.D., Piscataway, NJ

Pain Relief Unnecessary. From a letter to Rep. Pete Stark (D-CA): I read your statement that physicians are a greedy bunch who would take advantage of poor seniors in their moment of desperation. As it turns out, my gross before any overhead while seeing Medicare patients is $50. This means I make $20 to $25 per hour. However, I frequently end up seeing patients for free because Medicare, after reviewing my charts, states that although the patient was very satisfied with my service, relief of pain is not medically necessary, so I must reimburse all collected monies.

Harold J. Korynlak, D.O., Virginia Beach, VA

A Professional Box-Checker. From a letter to the Medicare carrier medical director: I spent 1.5 hours reading and trying to interpret the incredibly complex Special Edition Newsletter regarding documentation guidelines. In all that, you failed to correlate the actual CPT code with documentation requirements. For example, you have listed four levels of visits, but five codes. Then you assert that resolving problems are less complex than those which are worsening. In oncology, this is not the case. A patient in remission is just as complex because great time and care is required to be sure the remission is sound. Furthermore, these patients require more counseling because they are more insecure. Does Medicare believe that talking to a cancer patient is "medically necessary"?

Medicare is spending enormous amounts of money to have the ability to criminalize doctors if they want to. These guidelines give you more ammunition; I would be surprised if any doctor could pass an audit with these requirements if you did not want him to. Government has reduced my profession to "checkboxes."

Linda Wilson, M.D., Culver City, CA

AAPS News, January 1998 4

Legislative Alert: AAPS Report from Washington

A Lull in the Action

Congress is out until January 2. Although closure was not reached on the big question-the disposition of the Kyl-Archer Medicare private contracting bill-the bill has become increasingly popular in Congress, with 164 cosponsors in the House and 46 in the Senate. Senator William Roth (R-DE), Chairman of the Senate Finance Committee, has stated he will hold a hearing on the issue in the next session of Congress.

The Ghost of Medicare Future The long-awaited Medicare Commission appointments, mandated by the Balanced Budget Act of 1997, are starting to surface. Nothing startling here. Mostly Capitol Hill politicians and Washington Insiders.

Senate Majority Leader Trent Lott chose Senator Bill Frist (R-TN); Senator Phil Gramm (R-TX); Deborah Steelman, a prominent Washington Lawyer and a former chair of the Social Security Advisory Council; and Illene Gordon, a Medicare beneficiary and "patient advocate" who works in Senator Lott's local office in Mississippi.

Senate Minority Leader Tom Daschle's two choices are Senators Jay Rockefeller (D- WV) and Robert Kerrey (D-NE). Rockefeller is a champion of government health care and can be expected to resist serious changes that would loosen government control over doctors and patients. But Kerrey has been warning of the dangers of out-of-control entitle- ments, urging fellow Democrats to drop the mindless defense of the entitlement status quo. What Kerrey will actually do remains to be seen, but he is capable of surprising folks on Capitol Hill.

For House Speaker Newt Gingrich: Congressmen Bill Thomas (R-CA), Michael Bilirakis (R-FL), and Greg Ganske, M.D. (R-IA), plus Samuel Howard, CEO of the Phoenix Health Care Corporation of Tennessee.

Missing from the official Gingrich line-up was Horace Deets of the AARP. News of this pending appointment created a stir in conservative Republican circles. Then, according to The Washington Post (12/2/97), Gingrich established another precondition for appointment to the Medicare Commission: a vow not to raise taxes to pay for the expanding Medicare costs. Deets was not buying. To commit at the outset to not raising taxes is to be less "creative". Marilyn Moon of the Urban Institute, a liberal think tank, told the Post that if the positions were to be "hardened" at the outset, one might as well just "turn out the lights." The liberal agenda, after all, is to keep the Medicare structure the same, while adding to the regulatory power of HCFA and expanding its authority over "private plans," which will be private in name only. Deets is described by the Post as a "potential" candidate, meaning that he could be appointed by President Clinton. It would be curious if Clinton were to appoint the long- rumored choice of House Speaker Newt Gingrich.

Bargaining with the Bureaucrats Senator Jon Kyl, chief Senate sponsor of legislation to clarify the right of doctors and patients to contract privately, has been bargaining with the Administration over key policy issues that have arisen during the debate. As noted, Kyl put a Senate "hold" on the nomination of Nancy Min De Parle for the job of HCFA Administrator HCFA. On the basis of "assurances" from the Administration, Kyl decided to lift the "hold" and let the nomination go to the floor for a vote.

The question of whether the Balanced Budget Act restrictions on private contracting affected services not covered by Medicare arose because of the vagueness of the language and the legal opinion of Kent Masterson Brown, the plaintiffs' attorney in the increasingly celebrated and cited case of Stewart v. Sullivan (1992). Senator Kyl got Ms. De Parle to pledge that she would not interpret the law to extend to noncovered services. The fact that Kyl had to get "assurances" on this point demonstrates the need for a plain English rule for legislative drafting. [It also illustrates the failure of congressional oversight of executive agencies that routinely make and interpret law without either constitutional or statutory authority.]

But that is not all. Kyl also wanted to make sure that any restriction of private contracting would not affect the provision of services "only partially covered" by Medicare. The example Kyl cited was the ability of a Medicare patient to get a second mammogram beyond the annual one covered by Medicare.

Another troubling issue has been the application of Balanced Budget Act restrictions to Medical Savings Accounts. House Ways and Means Committee staff, who should know the things that they crafted in the turmoil of the Budget Process, said that private contracting restrictions on doctors would also affect their ability to participate in other "private" plans offered through the Medicare program. According to a widely circulated August 29 staff memo to Members of Congress, the Ways and Means crowd said: "Physicians will be able to opt out of Medicare, set their own rates, and operate independent of HCFA. However, when a physician makes this choice, they [sic.] are required to remain out of the Medicare program for two years. That includes Medicare fee for service, HMOs, PSOs and MSAs."

So, private contracting with a Medicare patient is okay if doctors are also willing to give up private contracting in Medicare under a Medical Savings Account option, limited to 390,000, permitted by Medicare. If this is hard to follow-trying to find the precise reason why private contracting should also restrict private contracting-well, it should be. It appears to be senseless because it is. Part of the reason is that the "private plans" are not really "private" plans (after all, they are funded by the taxpayers). If they were truly private, none of this would be the business of Congress or HCFA.

[The next question is whether Medicare beneficiaries are private citizens. Does the mere fact of Medicare eligibility turn an American into a ward of the federal government?]

Finally, Kyl felt compelled to seek assurances that the Balanced Budget Act restrictions on a physician in a group practice who agrees to contract privately with a Medicare patient would not affect other physicians in the group.

Ms. De Parle told Kyl that she agreed with his interpretations of the law, and would follow those understandings in drafting rules and regulations to enforce them. Beyond that, according to Kyl, Ms. De Parle said she would cooperate to find ways to "maximize" Medicare beneficiaries' freedom of choice of physician. After their November meeting, Secretary Shalala called Kyl to corroborate the interpretations agreed to by De Parle. In his statement, Kyl said, "While Secretary Shalala made no firm commitments, she did pledge to follow congressional intent in the area of private contracting, and to continue working to increase patient options. The Senate Finance Committee will hold a hearing on this important issue, and I look forward to the full participation of the Health Care Financing Administration in achieving what should be a basic right of all Americans: the right to choose your own doctor and to spend your own money on your own health care if you choose. After all, it's your health."

[Dare one hope that Ms. De Parle is not playing the role of Lucy and the Congressional Republicans that of Charlie Brown in the annual football kickoff?]

AAPS News, Legislative Supplement, January 1998 S1

The Next Installment of the Clinton Health Plan

The Advisory Commission on Consumer Protection and Quality in the Health Care Industry, created last March, has released a "Consumer Bill of Rights."

The official language of the initial report is clearly reminiscent of the pleasing rhetoric surrounding the Clinton health plan. And to be sure, it has to be read carefully to get the full flavor of the regulatory agenda, and its full meaning for doctors and patients. When the Clinton Administration uses words like "choice" or "competition," they usually have meanings quite different from those understood by ordinary Americans. Translation in this business is crucial.

Chaired by HHS Secretary Donna Shalala and Labor Secretary Alexis Herman, the 34-member Commission is described officially as "broad-based." Translation: lots of special interest groups and no conservatives. The "Consumer Bill of Rights" has three goals: First, to strengthen the confidence of consumers by making sure that their grievances are addressed. (Translation: you can't fire your employer's insurance company, take your money, and buy and your own health insurance with the same tax breaks you would get if you were enrolled in the corporate plan, but you are allowed to complain-through government-established channels.) Second, to reaffirm "the importance of a strong relationship between patients and their health care professionals." (Translation: This relationship is important as long as it doesn't manifest itself in a voluntary private relationship between patients and doctors, especially if the patient is eligible for Medicare.) Third, to "reaffirm the critical role consumers play in safeguarding their own health by establishing both rights and responsibilities for all participants in improving health status." (Translation: the government will manufacture a new series of legal "rights," with an corresponding increase in legal obligations, and this therefore will ensure that there is less and less personal freedom for all, regardless of race, color, creed, national origin, ethnicity, gender, or sexual preference.) The key feature of modern authoritarian regimes is the explosion of legal rights and obligations and the necessary contraction of personal freedom and independence.

The range of proposed "rights" is comprehensive: the right to information, the right to a choice of providers and plans: "Consumers have the right to a choice of health care providers that is sufficient to ensure access toappropriate high quality care." (Translation: you have the right to a doctor the government approves.) The new "rights" extend to access to emergency services, participation in treatment decisions, respect and non-discrimination, confidentiality of health information ("Consumers have the right to have the confidentiality of their individually identifiable health care information protected" [emphasis added]), and to a process of complaints and appeals. The Commission also outlines consumers' "responsibilities"- everything from staying healthy through diet and exercise to reporting wrongdoing and fraud to "appropriate" resources or legal authorities.

One can obtain a full report to the President on the Consumer Bill of Rights and Responsibilities on the White House Website (www.whitehouse.gov).

Shortly before the recess, Congressman Richard Armey (R-TX), House Majority Whip, sent his colleagues a remarkable memorandum, citing Clinton's remarks in a speech to the Service Employees International Union on September 15, 1997: "If what I tried before won't work, maybe we can do it another way. That's what we've tried to do, a step at a time, until we eventually finish this."

In short, what the Armey says is that despite Republican control of Congress, the Clinton Administration is still on the offensive and is calling the shots on the health care policy front. This is, of course, no surprise to anybody following the debate and tracing the broad Clintonian contours of the policy that is, bit by bit, emerging from Congress.

On the "Consumer Bill of Rights" Armey remarks: "This new offensive-on health quality-follows a common Clinton pattern: First, he identifies a "crisis," usually in the fall of an election year. Then he highlights it in his State of the Union message. And then he calls on Congress to send him, by election day, some Kennedy-Blank bill to "solve" this crisis.

The genius of the Clinton Administration is in the use of language-one must look beyond the appealing rhetoric to discern what is, in fact, being proposed. For example, a right of "nondiscrimination on the basis of health" means a guaranteed-issue rule for health insurance. While this may sound good, it necessarily implies increased government authority over the health insurance market and increased premiums. "Access to certain basic benefits" means a mandated comprehensive benefits package. And "access to women's health services" means mandatory abortion coverage.

As Armey notes, "Under this approach, HHS and the Department of Labor regulators get to decide everything from the proximity of medical facilities to patients (it must be `reasonable') to the number, mix and distribution of providers (they must be `sufficient'), to when a patient may see a specialist (whenever his condition is of `sufficient seriousness and complexity' to require it.) Various new benefits are mandated, as is the collection of reams of standardized information required by data-hungry bureaucrats."

Looking at the Presidential Commission recommendations, Armey says that the bulk of the components of the original Clinton Plan are embodied in the proposals, and only federal control over the financing of the health care system is missing: new taxation, a global budget, an employer mandate, and the establishment on a national scale of federally sponsored health insurance purchasing cooperatives.

Do not expect that the Clinton Administration's proposed regulatory authority will apply with equal force to all. Due to high costs, there will be key exceptions, such as union plans.

Armey predicts that Clinton will make the issue of health care "quality" a major plank in his agenda in his January State of the Union. All that he needs is a Senate Republican to do a reprise of the Nancy Kassebaum/ Orrin Hatch role in 1998. Kennedy- Kassebaum and Kidcare, after all, were smash hits. Central casting on Capitol Hill is likely to give the part to Senator Jim Jeffords (R-VT). And if the previous script is followed, Congressional Republicans will be typecast as bumbling sidekicks or villains. The envelope, please .

AAPS News, Legislative Supplement, January 1998 S2

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