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Legal Update for 2018-2019
Our Next 75 Years in Defense of Private Medicine!
The annual Report by our legal arm, the American Health Legal Foundation
Our 75th annual conference in Indianapolis was a spectacular success! Attendance surged, both by long-time members and newcomers, and we saw many of you there.
The new group of students attending our conference was particularly impressive this year. They told us how their own experiences confirm what we’ve been saying, and they were very appreciative of how we stand up for freedom in medicine.
The news of confirmation of Brett Kavanaugh to the Supreme Court came within a few hours after the closing of our conference, giving us a new 5-4 majority on the U.S. Supreme Court on key issues such as rights of private property and conscience. This opens exciting opportunities for us to push cases to the Supreme Court in order to establish good precedents.
The list is endless of what can be achieved now. Burying MOC. Overcoming sham peer review. Beating back suffocating medical boards. Ending ObamaCare, at last. Triumphing over insurance companies.
At our recent 75th annual conference in Indianapolis, we enjoyed looking back at our successes over the years. Freeing physicians from prison is something we’ve done in multiple cases, and we have also helped them get their medical licenses back so they could care for many more patients.
The composition of the federal judiciary is rapidly improving, where there is a 2-1 margin for freedom on many U.S. Courts of Appeal. There are 29 new Courts of Appeals judges, and 53 new district court judges. Our time to litigate is now.
- Ending ObamaCare, finally! Our AAPS Board unanimously approved our filing an amicus brief before the U.S. Court of Appeals for the Fifth Circuit when the latest challenge to the constitutionality of ObamaCare is appealed. The tax penalty for ObamaCare has been reduced to zero, so that dreadful law can no longer be justified as a tax. This means its constitutional basis no longer exists. ObamaCare must be unconstitutional under the very same ruling that upheld it!
When we previously challenged ObamaCare before the U.S. Court of Appeals for the Fifth Circuit based on the Origination Clause, we came up short. But then that Court was roughly evenly split between liberals and conservatives. Now, with five new judges appointed by the Trump Administration, this same Court is 12-5 judges in favor of liberty, and our prior lawsuit may have even prevailed were it to be before that court today.
This is why we are writing you: to protect both you and our profession against the enemies of liberty. With your support, we can do even more to protect liberty in the next twelve months. Only AAPS, with your support, is going to save private medicine.
- Warrantless searches of physicians’ offices.
One of our many victories in 2018 was the stopping warrantless searches of physicians’ offices in Texas. This sets a tremendous precedent nationwide.
A surprise searches of physicians’ offices without a warrant is one of the most upsetting things that can happen to a physician in his or her career. Yet medical boards were doing this based merely on an administrative subpoena, which can appear to be a search warrant but really is not.
A valid search warrant must satisfy the three requirements of the Fourth Amendment: it must be signed by a judge or magistrate, it must be based on a sworn statement of probable cause, and it must describe with particularity the place and things to be searched. If you are ever presented with a search warrant, then examine it closely to make sure it is valid, and then limit the search to what is specifically described in the warrant.
We have filed amicus briefs in multiple cases to end the terrible practice of searching physicians’ offices without a valid search warrant. We have succeeded in ending searches of physicians’ offices without a search warrant!
But we have not stopped there. We recently filed an amicus brief in the appeal of Morgan v. Chapman, where we seek to hold medical board officials personally liable for infringing on the Fourth Amendment rights of physicians and their patients. Once we establish personal liability for these warrantless raids, then we can be sure they will completely and permanently stop.
- Ending Maintenance of Certification (MOC). Medical societies have amassed war chests by bilking physicians through MOC, and challenging them is not for the faint of heart. They enjoy an immensely lucrative business and they are not going to give it up easily.
In 2018 we hired an accountant to analyze the publicly available tax forms of these special boards, and he uncovered just how massively profitable they are. Their retirement plans alone are incredibly lavish.
The American Board of Medical Specialties, the umbrella group for the MOC program, then complained about our accountant’s report on its finances. One of its complaints was that our accountant had not kept up with a non-mandatory equivalent of maintenance of certification in his own accounting profession! How ironic. Meanwhile, we continue to litigate against MOC and that entity in federal court in Chicago.
In addition, our general counsel is helping in pending litigation against the American Board of Internal Medicine (ABIM) and the American Board of Orthopaedic Surgery (ABOS). Both cases challenge unfair aspects of certification.
Our general counsel is seeking to put ABIM executives on trial before a jury in Puerto Rico for the harm they have caused to a fine young Puerto Rican physician. Of course the executives are fiercely opposing this. But when there is personal liability for the abuses of power by ABIM executives, then real reform will result in MOC.
- The push for wage and price controls. The bad idea of allowing insurance companies to set reimbursement rates for out-of-network physicians based on Medicare has spread from California to other states. Now there is even a federal bill introduced, by Senator Cassidy of Louisiana, to allow insurance companies to set rates for physicians who are not part of their networks.
We have a lawsuit pending against the price-control law in California, AB 72, and we are considering additional lawsuits. If wage and price controls become acceptable for the medical profession, then all physicians will suffer. Physicians will have nowhere else to go in negotiating in-network rates, if low price controls on out-of-network rates are given to insurance companies by legislatures.
Patients will suffer, too, as rationing will become commonplace. Price controls cause shortages, as students of economics know.
Our pending lawsuit in federal court in California challenges how the price control legislation there violates the Due Process and Takings Clauses, and thus should be declared unconstitutional. We await a ruling from the federal court, and if necessary we will appeal to the U.S. Court of Appeals for the Ninth Circuit.
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There are many other threats to private medicine, too numerous to discuss in detail here. Overzealous prosecutions have increased. Sham peer review is as big a problem as ever. Defamation of good physicians on the internet continues.
But we have a judiciary now that is more willing to listen to arguments of free enterprise, private property, and personal liberty than before. The most severe threats to freedom in medicine can be best addressed now through litigation.
Other societies may give up on medical freedom, but we won’t. After 75 years, we are even more committed to defending the practice of private medicine in the many years to come.
Please make a tax-deductible gift to our American Health Legal Foundation. AAPS is unique in how it helps physicians. The legal precedents that we are able to establish, with your support, enable the flame of freedom to persist in medicine without being extinguished by the enemies of private practice.
Thank you for your generosity!
Jane M. Orient, MD, AAPS Executive Director.
P.S. Our window of opportunity is now. A donation of $250, at this critical time, is worth more than a larger donation later. Thank you for stepping up at this essential moment by donating towards freedom in medicine.
P.P.S. The sooner you can donate, the sooner we can put your generosity to good use. Your tax-deductible donation will enable us to go the extra mile for private medicine. Please be generous so that private medicine may continue – and we hope to see you at our 76th annual conference next year!