Chapter 7 – Limiting Individual Prerogatives in a Progressive Healthcare System

This is Chapter 7 of my book-in-progress, “Open Wide And Say Moo! – The Good Citizen’s Guide to Right Thoughts And Right Actions Under Obamacare.” Comments are fervently sought; you can leave them here.

You can read my rationale for undertaking this project, and thus opening myself up to the possibility of public failure, humiliation, derision, disapprobation, and unwanted scrutiny, here.

And here is the up-to-date archive for all the chapters that have been posted so far.
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Update – September 1, 2012

Open Wide and Say Moo! is now revised and published!

 

You can find it on Kindle here.

 

Now available in the audiobook version!

 

 
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Chapter 7 – Limiting Individual Prerogatives in a Progressive Healthcare System

Of all the seemingly outlandish things I am going to assert in this book – all of which I will fervently desire the reader to, if not swallow whole, then at least take into serious account – the most outlandish of all is probably the one I am addressing in this chapter. Namely, that any Progressive healthcare system will necessarily attempt to curtail the ability of individual Americans to spend their own money on their own healthcare, and thus, will try to limit the most essential freedom of all – the freedom to act to preserve oneself.

To those many readers who at this moment are expressing alarm over my apparent paranoia, I thank you for your concern. But fear not, for if it turns out I am wrong about this (and I sincerely hope that I am), then not only do they have medication for paranoia, but also, I would be permitted to purchase it legally.

Progressives, of course, deny that they have any such thing in mind. And undoubtedly the majority of progressives, and even many actual Progressives, do not. Indeed, I will happily concede it likely that very few Progressives actually start out with this idea.

What I am saying is that limiting this vital individual liberty turns out to be such an essential component of any Progressive healthcare system that the people who run such a system, perhaps despite themselves, will, sooner or later, find themselves acting forcefully to limit it. This is my proposition.

My intention in this chapter is (once again) to present my proposition as a theory. It is a theory that takes into account two things. First, it incorporates the natural and necessary inclinations of the Progressive Program to limit an individual’s freedom of action regarding his or her own health. And second, my theory incorporates objective observations we can make today, relating to actions which Progressives have already taken in this regard. I contend that my theory best explains both of these things. And of course, as always, I invite (and in this case, greatly desire to hear of) any alternative theories that explain these observations better than mine does.

But if my theory is correct, then if we Americans are to avoid severe restrictions on our ability to purchase healthcare services with our own money (and, ultimately, on our ability to expend any individual resources for any individual benefit), such a favorable outcome will only result if we remain vigilant and alert to the aims of our Progressive leaders, and to fight vigorously against their efforts to suppress our liberties, whenever and whereever we find them. It will not result from our complacency, or from placing our trust in the beneficence, the common sense, or the respect for fundamental American precepts, of our political leaders.

The Individual Is The Proper Guardian Of His Own Health

It really ought to go without saying that a person should be able to expend his or her own resources to purchase any healthcare service he or she desires. This is a primary corollary of classical liberalism, and was recognized as a fundamental human right by the likes of John Locke and Thomas Jefferson.

It is also an idea deeply imbedded in American jurisprudence. The great Supreme Court Justice Joseph Story, in his Commentaries on the Constitution of the United States (1833), noted that the individual “is the proper guardian of his own health.” This precept was repeated by Louis Brandeis in 1890, and became the foundation of the Supreme Court’s assertion of an individual right to privacy. In particular, the writings of Story and Brandeis were specifically relied upon by the Court in its 1965 finding (Griswold v. Connecticut) that a right to privacy is not only guaranteed by our Constitution, but is also a right which is “older than our Bill of Rights.” I would like to remind my Progressive friends that it was this very precept that laid the basis for deciding Roe v. Wade in 1973.

Fundamentally, both classic liberal philosophy and the American judicial system have always recognized a liberty to act to preserve one’s own health to be an inherent, inalienable right.

Why Individual Prerogatives Must Be Restrained

Despite this long history in political philosophy and in jurisprudence in favor of such an inherent liberty, it is nonetheless natural and unavoidable for any Progressive healthcare system to strive to limit it. This is because Progressive healthcare systems are necessarily universal.

They are universal in two senses. First, they attempt to cover all people. Second, they purport to cover all healthcare services.

Under Obamacare, for instance, health insurance – which every American is required to have – must cover (as laid out in Section 1302 of the law): ambulatory patient services, emergency services, hospitalization, maternity and newborn care, mental health and substance use disorder services, including behavioral health treatment, prescription drugs, rehabilitative and habilitative services and devices, laboratory services, preventive and wellness services and chronic disease management, pediatric services, and oral and vision care.

Fundamentally, this “universality of features” reflects a particular philosophy. It is, in fact, the Progressive philosophy. Healthcare being an essential component of any ideal society, it is thus necessary to assure that everybody receives everything that is officially deemed to be healthcare. In Section 1302, the Central Authority is telling us, everything will be taken care of for all of us, from soup to nuts. So there is no need to worry our pretty little heads.

But, as always when the Central Authority assumes all responsibility for providing some aspect of security (in this case, healthcare security), it also assumes all control.

Complete central control is necessary not only to assure the societal perfection promised by the Progressive Program. Central control is also the method by which Progressives propose to manage America’s healthcare spending. Which is to say, controlling all healthcare expenditures is essential for the purpose of covert rationing.

Allowing individuals to spend their own money fundamentally undermines a Progressive healthcare system. It implies that the Central Authority is actually not supplying all useful healthcare services (when, by definition, it is), and thus implies that the government is holding back, and indeed, may be engaging in some kind of rationing. Such an implication cannot be permitted.

To say it another way, when individuals are allowed to purchase “extra” healthcare, that’s a graphic admission to the unwashed masses that there is extra healthcare to be had. The real problem is that this behavior raises expectations for everybody, and these higher expectations make it that much more difficult for the Central Authority to ration covertly.

The critical importance of controlling expectations in a Progressive healthcare system is nicely illustrated by some of the problems being experienced by the British and the Canadian healthcare systems. Both of these systems, naturally, initially outlawed private healthcare spending. But unfortunately, the very visible medical progress that continued unabated in the American healthcare system – new drugs, new techniques and new technology – were noticed by Canadian and British citizens, and created new demands upon their respective healthcare systems. Essentially, seeing what was possible, a critical mass of the population demanded some of these medical advances, even if they had to pay for them themselves. Ultimately the authorities were forced to relent, at least to a degree, on their desired restrictions on individual freedom.

Some have argued that such “loosening” of individual restrictions in Great Britain and in Canada proves that any restrictions on individuals simply will not stand – so we Americans don’t really have anything to worry about. For, if such restrictions cannot be maintained in those countries, how will they ever be maintained here? Perhaps. But I would suggest instead that the need to loosen individual restrictions in Canada and Great Britain graphically illustrates the critical necessity, in any universal healthcare system, of managing expectations. It in fact proves that a failure to manage the expectations of the people leads to a loss of control.

Had it not been for the very visible example of advances in American healthcare, citizens of Canada and Great Britain quite possibly never would have agitated for “more.” As it is, thanks to the unfortunate example of the high-cost healthcare their citizens saw in the United States, British and Canadian officials were simply unable to manage the expectations of their own citizenry. (Which means that healthcare officials in those countries were likely among the happiest people, anywhere, when Obamacare became the law in America.)

Once we have a universal healthcare system in America, it will therefore become critically important for the Central Authority to manage the healthcare expectations of American citizens. Fortunately, American healthcare bureaucrats won’t have any annoying, external healthcare systems to worry about, busily spinning out advances in medical technology and thus continually raising expectations. Their job likely will be somewhat easier than it was for their counterparts in Canada and England.

For American bureaucrats, managing public expectations will largely become a matter of restraining individual American citizens from going outside the system, and buying extra healthcare with their own money. And for this reason, restricting individual prerogatives in the United States will be critical, even more critical than it was in our cousin nations. And we should not be surprised if our bureaucrats employ some very devious and even draconian maneuvers to do so.

It’s All About Fairness

The official rationale which the Central Authority will always invoke for taking such restrictive actions will be to achieve “fairness.” Allowing the rich to go outside the system would create an unfair, two-tiered healthcare system, &c. The goal of fairness, as is being taught to every schoolchild, is unquestionably and obviously a righteous one, and indeed, its achievement is a chief responsibility of the Central Authority*. Equally obvious is the fact that its hindrance is always threatened by the greed of a certain kind of person. Therefore, the Central Authority is fully justified in constraining the individual liberties of those enemies of righteousness who would stifle fairness.

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*As I write this, President Obama is campaigning very hard for a special new tax on the very rich. While this is nothing new in itself, what is new is the rationale that is being advanced for this new tax, i.e., “fairness.” The President and his spokespersons have all acknowledged that this new proposed tax would do next to nothing to reduce our deficit, or to create new revenue for the government. Rather, the purpose they articulate for taking the property earned by these very successful people is, quite explicitly, redistributive justice, or “fairness.” This argument, possibly for the first time, explicitly creates “fairness” as a principle goal of taxation, and makes achieving such fairness a chief responsibility of the Central Authority (which is convenient, since the Central Authority also gets to define what “fairness” is). This explicit new principle is readily extendable to government actions outside the tax code – such as healthcare.
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And so, restricting the right of individuals to use their own resources to benefit their own health is something that will always be conducted only for the best of reasons – to achieve the fairest and the most ethical healthcare system possible.

But whatever the reasons Progressives might offer for their actions, and whatever the dictates of classical liberal philosophy or American jurisprudence to the contrary, their attempt to restrict individual prerogatives will become deadly serious, because doing so is essential to their real aims.

Hillary Started It

The natural propensity of Progressives to limit individual prerogatives was manifest as early as 1993, with the Clinton Health Security Act, affectionately known as Hillarycare.

The question of how much individual freedom Hillarycare would permit came to a head in early 1994, just as the debate over this bill was reaching a crescendo, and played a significant role in defeating the legislation. What brought the question to a head was the publication of an article by Betsy McCaughey, entitled No Exit, in (of all places) The New Republic.

Ms. McCaughey, who quickly became for Progressives a sort of practice version of Sarah Palin, was at the time a frequent denizen of Conservative think tanks and an occasional editorialist. But what made her an acknowledged expert on Hillarycare was the fact that she was one of the few people who actually had read the legislation.

No Exit revealed that many of the claims being made by proponents of Hillarycare (for instance, that patients could keep their present insurance; that specialty care would be readily available; and that there would be no rationing) were actually false. Despite the fact that the White House quickly released an official response to Mcaughey’s article insisting that many of her conclusions were untrue, her accusations stuck. And according to many observers McCaughey’s article was at least as influential as the Harry and Louise commercials in turning the tide against Hillarycare. Indeed, the importance of her article was formally recognized when it won her the National Magazine Award for excellence in the public interest.

One of McCaughey’s chief assertions – and likely its most striking one – was that Hillarycare would make it illegal for patients to pay doctors directly, and that doctors could be paid only through the government-sanctioned insurance plans. And of all her claims this one in particular made proponents of Hillarycare angry, because the legislation explicitly stipulated that this was not to be the case. Here is the actual language from the bill: “Nothing in this Act shall be construed as prohibiting…an individual from purchasing any health care services.”

Because one of the main assertions in her highly effective article so obviously ignored this explicit statement to the contrary, for the past 20 years McCaughey has been widely painted in the general media as being totally incompetent at best, and more often as a congenital liar and/or a shill for various components of the healthcare industry. And in 2009, when she performed a similar analysis of the Obamacare legislation (coming to many of the same conclusions), she was for the most part either ignored or ridiculed.

It turns out, however, at least in retrospect, that McCaughey’s analysis of Hillarycare was largely correct.

Hillarycare Is The Model For Obamacare

Before demonstrating how McCaughey was right, I ought to say why spending any time with Hillarycare at this point is still worthwhile. Hillarycare is still relevant for two reasons. First, while Hillarycare itself never became law, many of the provisions of Hillarycare eventually did – and so, we are living under them today. And second, Hillarycare embodies the fundamental aims of any Progressive healthcare system, so understanding the aims of Hillarycare will help us to understand the aims of Obamacare (and whatever Progressive reforms might succeed Obamacare).

When House Speaker Nancy Pelosi famously pronounced that we would have to pass the Obamacare legislation in order to find out what was in it, she did not misspeak. She was not uttering a typical Nancy-ism (such as her contention that paying people not to work is a great stimulus to job creation), nor was she channeling Yogi Berra. She was, in fact, speaking the plain truth, and imparting a nugget of deep wisdom to us in the general public.

I have spent substantial time reading large portions of the 2700-page Obamacare legislation. And having done so, here’s what I can tell you about it.

The Obamacare legislation was specifically designed to be obscure; in fact, it is fundamentally indeterminate in its meaning. It was designed in such a way that the unelected regulators who would later translate it into actual rules, regulations and guidelines (under which healthcare providers can then be prosecuted), would ultimately determine what the bill really said. And until those regulators finish their work, what Obamacare actually says is a matter of debate. So Nancy was right.

This fact explains why none of our legislators bothered to read it before voting on it – except for a few pesky Republicans, who were only trying to make trouble. What’s the point in reading a long, boring document whose actual meaning will only be determined later?

This fact also raises another question. Where did this extraordinary document – whose true meaning was elusive even to the President and the legislators who were promoting it – come from? Who actually put the words to the page, and crafted this remarkable legislation?

We may never know the names of the people who actually held the pens which scratched out the actual words, any more than we will ever know the real names of the individuals who wrote the gospels of Matthew and Luke. But, just as New Testament scholars have been able to trace these two gospels to a now-lost common prior source – the so-called “Q document” – it is not difficult for anyone with a smattering of interest in the art of legislative exegesis to trace the source document for Obamacare.

The Q Document for President Obama’s Patient Protection and Affordable Care Act was Hillarycare.

In preparing to write this book, I decided to go back in time, and re-examine Hillary’s original proposal for fundamentally transforming the American healthcare system. What I found surprised me.

While Hillary’s Health Security Act was widely castigated by contemporaries as being a vast monstrosity of bureaucratic legerdemain, filled with complexity and labyrinthine passages that attempted to hide its true meaning, I found Hillarycare, in comparison to Obamacare, to be a model of legislative brevity and clarity. In fact, I now believe that its very straightforwardness is one of the things that killed it. (And, it seems obvious to me, so did whoever wrote the Obamacare legislation, an individual or individuals who so clearly and so painstakingly avoided making the same mistake.)

For instance, Hillarycare is only 1368 pages in length. How could they be so concise? Even more remarkably, Hillarycare spelled out pretty plainly what it actually meant to do.

For instance, in the Obamacare bill, in order for a reader to assemble the information necessary to determine that the Independent Medicare Advisory Board is actually to be called the Independent Payment Advisory Board (IPAB), and that its “advisory opinions” which are to be submitted to Congress for “consideration” are actually formal dictates which must be followed to the letter, and that it can inflict its cost-cutting mandates to all of healthcare and not just to government programs, one must jump around to numerous distant sections in the 2700-page document, cutting and pasting the relevant sections, jigsaw-like, into a coherent whole. In the Hillarycare bill, in stark contrast, the analogous National Health Board (which, like the IPAB, was to have been an appointed-not-elected Supreme Court of healthcare, beyond which there was to be no appeal, no revision, and no repeal) is presented in an entirely straightforward way, and pretty much all in one place.

Having now immersed myself in the relatively refreshing model of clarity and precision that was Hillarycare, I find it quite likely that the people who actually wrote the Obamacare bill (and may God keep these invaluable artists of legislative lyricism safe, as we will be needing them), simply began with Hillary’s old Health Security Act, disassembled it into various bits, padded each bit with a little more than twice its weight in verbiage, and reassembled the pieces in some nearly random fashion into the exceedingly difficult-to-read document that became Obamacare.

Obamacare’s debt to Hillarycare is obvious. Hillarycare required every American to have government-approved health insurance; it reduced private health insurers to government-directed utilities, whose products, rates, and profits were to be controlled by the feds; and it created omniscient and omnipotent panels which were to hand down dictates to “let doctors know” what services they may or may not provide and under what circumstances. This should not be surprising, since any Progressive healthcare system will ultimately have the same goals, and will likely discover similar pathways toward achieving those goals.

Hillarycare and Individual Prerogatives

So: if Hillarycare is to a large extent the model for Obamacare, and indeed, if it is a model for Progressive healthcare systems in general, then what did it have to say about the ability of individual Americans to use their own resources for their own healthcare?

Progressives have told us (and have spent nearly 20 years castigating Ms. McCaughey for telling us otherwise) that the answer is obvious – the bill says in plain language that “nothing in the bill should be construed as prohibiting an individual” from purchasing healthcare services. What could be clearer?

I humbly suggest, and ask the reader to suspend disbelief long enough to consider, that when an act of legislation makes an unprovoked, blanket assertion like this, apparently out of the clear blue, sometimes that assertion is being made in order to distract the overly curious from digging through the bill to find out what it really says, or at least, to create plausible deniability. There are lots of examples where legislation begins by saying, “This legislation does not do X,” and then immediately goes on to do precisely X.

For instance, the legislation that created Medicare contains the following language: “Nothing in this title shall be construed to authorize any federal officer or employee to exercise any supervision or control over the practice of medicine, or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer, or employee, or any institution, agency or person providing health care services.” (Section 1801, Medicare Act, 1965). This point of law, in light of what Medicare has in fact become, is mind boggling.

Also, in the Obamacare legislation, the introductory language in the section which creates the IPAB (the IPAB being a straightforward and very blunt instrument for rationing healthcare), contains language that prohibits healthcare rationing.

Then there’s the fact that Hillarycare itself, in its section on fee-for-service medicine, begins by establishing a collective negotiation process for determining what fee-for-service doctors may charge (Section 1322, paragraph (c)(2)). But then it immediately goes on to say (paragraph (c)(5)) that “collective negotiations by providers pursuant to paragraph (2) shall be considered as efforts intended to influence government action.” And efforts intended to influence government action is later defined, in the Fraud and Abuse sections of the legislation, as an act of healthcare fraud, and is subject to criminal penalties. To top it all off, the very next section of the bill also prohibits providers from boycotts or even threatening boycotts. So in effect, after asserting that there will be collective bargaining, the bill provides a mechanism for the government to dictate doctors’ fees, without input from doctors, and furthermore, these dictated fees are not even presented to doctors in a take-it-or-leave-it fashion, but rather, in a take-it-or-go-to-jail fashion.

All this, of course, is not to say that the language in Hillarycare denying that the bill has any intention of prohibiting individual prerogatives is itself definitive proof that the legislation intends to prohibit individual prerogatives. All I am saying is that such language, so gratuitously offered, may actually not mean anything at all in particular, and certainly should not be treated as being dispositive. If anything, it should make you want to read the rest of the bill with particular care.

And when we read the rest of the Hillarycare legislation we find (Section 1406, Paragraph (d)(1)) that “A provider may not charge or collect from any enrollee a fee in excess of the applicable payment amount. . .for items and services covered by the comprehensive benefits package.” When we deconstruct this language, we find that a “provider” is any individual who provides health professional services (a definition that includes all doctors); an “enrollee” is any American citizen (since all Americans are required to be enrolled in a government-approved health plan); and the “comprehensive benefits package” covers all healthcare services. So: any doctor who treats any patient in America is bound to the fee schedule as determined by the government. Furthermore, the next paragraph (paragraph (d)(2)) prohibits directly billing the patient for any of these services. The plain meaning of these provisions is that doctors and patients cannot contract with one another legally for the delivery of healthcare services.

The Fraud and Abuse sections of Hillarycare also limit the prerogatives of doctors and patients. For instance, under Hillarycare, some activities which would usually be considered compatible with routine medical practice, even when conducted within the government-approved healthcare system, created opportunities for jailtime for both doctors and patients. According to Paul Craig Roberts, writing in the Washington Times in December, 1993, “Mr. Clinton’s plan turns normal patient advocacy into a federal criminal offense. For example, a doctor who wants an earlier date for surgery for a needful patient can be accused of using wrongful influence and accepting a bribe and sentenced, along with the patient, to 15 years in prison.”

So, on one hand Hillarycare made a very direct, blanket assertion that it did not intend to inhibit individual prerogatives. On the other hand the specific provisions of Hillarycare seem to do just that. It seems likely, then, that the blanket assertion made in Hillarycare that people could buy whatever healthcare they wanted, may just be another example of employing such an assertion for the purpose of providing plausible deniablity that the legislation in fact (and in less plain language) does just the opposite.

Furthermore, the overall effect of the Hillarycare legislation, when viewed from 10,000 feet, was most striking in the detailed and minute control it assumed over each and every conceivable aspect of American healthcare. And when you consider their work product in its entirety, it becomes difficult to believe that the authors of Hillarycare would really countenance individuals going outside the system to buy whatever healthcare they wanted.

To me, this all indicates that Ms. McCaughey was probably right after all.

But since Hillarycare never became law, we can’t really know how its apparent limitations on the freedom of individuals actually would have played out.

Or can we?

After Hillarycare

As I have noted in an earlier chapter, the ignominious defeat of Hillarycare in Congress did not stop the Progressives’ efforts to overhaul the healthcare system. It simply put them on a somewhat slower track.

For instance, large sections of the onerous Fraud and Abuse portions of Hillarycare were cut-and-pasted into the HIPAA legislation which became law a few years later. We saw, in Chapter 3, just one example of how these new anti-fraud provisions were then employed to change routine medical practice into a maze of regulatory booby-traps, punishable by ruining fines and jail terms. Such methods, which were aimed at wrenching the physician’s attention away from what was best for the patient and toward what would best please the Central Authority, were extraordinarily painful for doctors at first, but in the intervening 15 years have come for many physicians – especially the younger ones who never knew anything else – to seem routine and natural. And so, despite the defeat of Hillarycare, the government has succeeded in getting physicians into the correct frame of mind for Progressive healthcare.

Similarly, the downfall of Hillarycare did not deter ongoing efforts by Progressives to limit the freedom of individuals to purchase their own healthcare. These efforts necessarily had to be relatively subtle, and accordingly have been marked by subterfuge and clever legal posing. But their aim cannot be plausibly denied.

Limiting The Rights Of Medicare Patients

Lest I mislead readers into thinking that I’m blaming only the Clintons for starting all this, I will point out that the first major effort to limit the ability of Medicare patients to purchase healthcare services outside of Medicare was effected by government bureaucrats during the administration of George Bush 41.

In 1991, Medicare administrators published a “carrier bulletin” warning physicians that direct-pay agreements between Medicare patients and doctors (even non-participating doctors) were strictly prohibited, unless the contract was initiated solely by the patient, and even then, the rate of payment for any such direct-pay agreements must be those rates set by Medicare, and further, that any such direct-pay agreements were still subject to all Medicare rules and regulations. Medicare added that if the patient at some later time became dissatisfied with that (patient-initiated) contract, Medicare would severely (and retroactively) sanction the physician. The clear aim of this new policy was to deter any direct-pay agreements, whatsoever, between Medicare patients and doctors, and thus, to limit the patients’ ability to spend their own money on their own healthcare.

When a group of physicians and their patients sued Medicare in 1992 to prevent this odious new policy from being implemented (Stewart et al. v. Sullivan), the government took the position that the plaintiffs could not prove that Medicare had really promulgated this new policy after all – since they could not “prove” that the carrier bulletin had been initiated by the Secretary of HHS. The judge agreed with the defendants over this legal technicality, and after implying that if Medicare had actually implemented such a policy (which at the time could not be “proven,”) it would indeed unreasonably limit individual rights, threw the case out in a summary judgement for lack of “ripeness.”

Then, having successfully dodged this challenge on a legal subterfuge, Medicare immediately (and cynically) rendered this very policy official, in its entirety, by formally changing its Medicare Carriers’ Manual.

But the Feds were still not satisfied. The new, restrictive policy technically still allowed for private-pay contracts, as long as the patient initiated them. So the Clinton administration engineered an amendment to the Balanced Budget Act of 1997 – Section 4507 – which prohibited any self-pay contracts whatsoever between Medicare patients and their doctors for medical services which are covered under Medicare. Under Section 4507 – which is still the law today – if a doctor provides even one self-pay medical service to a single Medicare patient, that doctor is punished by complete banishment from the Medicare program for at least two years.

The federal government was eventually challenged again in court over Section 4507, but that lawsuit was also thrown out in a summary judgment (United Seniors Association et al. v. Shalala). The rationale the government offered to the court for its actions in this case is instructive: “. . .what you will have is a system whereby the rich can buy what they want and those many beneficiaries who are on fixed income will not be able to afford those services.” So again, the interest of collective “fairness” was invoked to justify a law which stifles an individual’s fundamental right to purchase medical services he or she determines to be necessary for his/her well-being.

There are several legitimate reasons a Medicare patient might want to self-pay for a medical service that is covered by Medicare. If Medicare “covers” heart valve surgery, for instance, a patient might want to pay for a new, minimally-invasive surgical approach that is inadequately reimbursed by Medicare, rather than the big, open-heart surgery that Medicare reimburses fully. Or, one might want to self-pay for “covered” psychiatric care, or for treatment for a venereal disease, in order to keep embarrassing or harmful medical records out of government-controlled databases – that is, for privacy reasons.

Furthermore, it is important to recognize that just because a healthcare service is “Medicare-covered” does not mean that it will be covered for a given patient. Whether a specific individual is covered is often determined by a “medical necessity” ruling, made by a bureaucrat. Section 4507 essentially precludes a patient’s ability to purchase a denied (but “covered”) medical service, no matter how badly they want it, or believe they need it.

One can argue, and with some merit, that at this juncture denials of medically necessary services by Medicare have been relatively judicious, and therefore that the “Section 4507 rule” has not had much of an actual impact. In fact, it is likely that most Medicare beneficiaries do not even know that this rule exists.

But while its impact might be relatively small so far, the Section 4507 rule has now been in place for 15 years – it is very well-established. So, once Medicare begins reducing reimbursements to physicians and hospitals to the point where they can no longer afford to offer certain “covered” services to Medicare patients (and Medicare has just recently begun doing so, specifically, for some cardiac imaging studies), patients who need those services will be left out in the cold. Services which are officially covered by Medicare, but which are reimbursed at such a low rate that they cannot actually be provided to them, will become unavailable even to Medicare patients who are willing and able to pay for them.

It is conceivable that some older people who understand the implications of Section 4507, and who want to receive a covered-but-denied medical service, might decide to drop out of Medicare altogether so they could legally purchase that desired service. But this is something Progressives do not like either, because allowing patients to drop out of Medicare threatens to create an unfair, two-tiered healthcare system.

And this is why, also in 1993, the Clinton administration promulgated a rule in its Program Operations Manual System (POMS) to prohibit Medicare-aged Americans from forgoing Medicare. The rule implied that no elderly person could drop out of Medicare unless they also gave up their Social Security benefits, and repaid any Social Security benefits they had already received.

Recently, this POMS rule was challenged in a lawsuit filed by three elderly Americans (one of whom was Dick Armey) who wished to drop out of Medicare in favor of self-purchased health insurance, without having to sacrifice their Social Security benefits.

But in the summer of 2011, Washington DC District Judge Rosemary Collyer ruled for the defendants and upheld the POMS rule. So: elderly Americans do not have the right to drop out of Medicare and purchase their own health insurance, unless they also forgo and repay all Social Security benefits.

Interestingly, in 2009 Judge Collyer had denied a motion by the Obama administration to dismiss the suit, and in her denial pointedly noted that “neither the statute nor the regulation specifies that Plaintiffs must withdraw from Social Security and repay retirement benefits in order to withdraw from Medicare.” Her preliminary ruling thereby confirmed the plaintiffs’ main contention. So most observers had assumed that the judge’s final ruling would also be in favor of the plaintiffs.

It was not. In her final ruling in 2011, Judge Collyer found a new interpretation of the Medicare statute itself that upholds the POMS rule. The Medicare statute, she finally determined, specifies that people who are entitled to Social Security are automatically “entitled” to Medicare, and therefore if one elects to receive the Social Security payments one is owed, one must also accept Medicare. She flatly rejected the notion that when Congress says “entitled” it is implying anything optional, as in, “You can have it if you want it.” When you’re dealing with Medicare, she said, “‘entitled’ does not actually mean ‘capable of being rejected.’” So, when Congress creates a new entitlement, Congress actually means you must have it – that it’s mandatory. Judge Collyer ended her ruling by sympathizing with the plaintiffs (or laughing at them – I cannot tell for sure): “Plaintiffs are trapped in a government program intended for their benefit.”

The apparent change in Judge Collyer’s reading of the Medicare statute between 2009 and 2011 is disturbing. What made her originally read the plain language of the Medicare statute just like any literate American would, but then two years later read it as if she had to twist it into a presupposed “right” answer? We likely will never know what induced this marked shift.

It is instructive that the Obama administration would go to such lengths to prevent old people from dropping out of Medicare. Medicare is not only in the red, but is a great fiscal threat to our national well-being. One would think they’d welcome the idea that some of our elderly might want to pay for their own health insurance, and thereby save Medicare a lot of money. But instead, the administration fought the idea tooth and nail, to the point of articulating absurdities that even the judge could not refrain from mocking. One of the Obama administration’s arguments, for instance, was that the plaintiffs were lucky to receive such a boon as Medicare, and therefore suffered “no injury” by having to accept it. The judge responded in her ruling: “The Secretary extolls the benefits of Medicare and suggests that Plaintiffs would agree they are not truly injured if they were to learn more about Medicare. . .The parties use a lot of ink disputing whether Plaintiffs’ desire to avoid Medicare is sensible.”

So as it now stands, seniors (unless they are rich enough to also walk away from Social Security altogether) must accept Medicare. Admittedly, for most elderly Americans this is not a big deal – of course they’re going to accept Medicare. But, as we have seen, current law already makes it nearly impossible for patients on Medicare to self-pay for denied medical services. Once you are on Medicare, you will get the medical services the Central Authority approves for you – and nothing more. In the not-too-distant future, this restriction is likely to become much more apparent to Medicare recipients than it has been to date. When and if the day comes when we would like to buy ourselves some medical care which the Central Authority would rather we did not have, Old Farts like your author will find that we are “entitled” neither to pay for our own healthcare, nor to drop out of the government program that so restricts us.

Preventing Doctors From Adopting Direct-Pay Practices

Disturbed by the destruction of their professional autonomy, and by their inability to advocate for their individual patients, for the past decade more and more doctors have been dropping out of the “system,” and establishing practices under which they are paid directly by their own patients. By eliminating the pressure from insurers and the government to make the patient’s best interest a secondary concern, direct-pay practice immedidately restores the classic doctor-patient relationship, and therefore restores professional integrity – and so it is a menace to Progressive goals.

Unfortunately, direct-pay practitioners have a serious public relations problem. Part of the problem, to be sure, was caused by these doctors themselves. The first few to set up this new style of practice unabashedly catered to rich patients, and to attract the rich, referred to themselves as “concierge” practitioners. This name (and its elitist connotations) have been forcibly affixed to all direct-pay practitioners, even as this style of practice has evolved into a much more democratic form. Today, more and more doctors are starting direct-pay practices which are easily affordable to anyone who can afford a cell phone or cable TV contract. This evolving variety of direct-pay practice is actually not so radical as Progressives would have you believe. It is the way doctors practiced medicine until very recently. It is, in fact, the way Dr. Welby practiced medicine.

While many direct-pay practices offer patients certain benefits they usually cannot get from primary care doctors who remain in the approved system (such as phone and e-mail access, same-day appointments, appointments lasting as long as necessary instead of the allotted 7.5 minutes, &c.), the fundamental benefit, to both the patient and the doctor, is that it restores the classic doctor-patient relationship. The physician’s primary obligation is no longer to the 3rd-party overlord, or to the Progressive ideal of social justice, but to the patient.

And while critics (who abound) attack direct-pay practitioners for their elitism, laziness, and greed, their real issue is that direct-pay practitioners are acting as if their primary duty is to their individual patients, and not to “social justice.” It is for this reason that direct-pay practices are a deadly threat.

Having gained nearly complete control over the behavior of primary care practitioners, it is critical for Progressives to shut the door to any alternative forms of primary care. Direct-pay practitioners are a menace because they threaten to raise the expectations of both doctors and patients. Perhaps, doctors might tell themselves, there really is a way to maintain our professional autonomy within the healthcare system. Perhaps, patients might tell themselves, there really is a way for me to have a personal advocate watching out for my interests when I have to interact with the healthcare system.

The issue, as always, is one of “fairness.” It is not fair for rich people to be able to buy “extra” access to their doctors, since it will create a condition of inequality. The policy director for the AARP (an organization that is ostensibly intersted in the best interests of older Americans) has said that direct-pay practices creates “the prospect of a more explicitly tiered system where people with money have a different kind of insurance relationship than most of the middle class, and where Medicare is no longer as universal as we would like it to be.” It is apparent that, to assure fairness, no patient should have email or cell-phone access to their doctors, or same-day appointments – or to a true professional advocate who is dedicated to their own individual interests, instead of the competing interests of the whole.

The attacks on direct-pay practitioners have followed the usual scheme Progressives follow when they discover an idea they need to suppress. First, they were ridiculed. “For a Retainer, Lavish Care by ‘Boutique Doctors,’” said a headline in the New York Times in 2005. Then, they were demonized, widely attacked for their elitism, for catering to the frivoulous desires of the rich, and for their lack of fundamental medical ethics. In this latter effort, it was not difficult to find fellow physicians – generally, from the medical organizations which promulgated the New Medical Ethics (see Chapter 3) – to lead the attacks. There are countless examples. I will give just two.

Anthony DeMaria, then President of the American College of Cardiology, criticized the practice of direct-pay medicine in an article in the Journal of the American College of Cardiology in 2005, saying, “Personally, I do not mind if people acquire yachts or personal trainers if they have enough money, nor would I object if they secured a physician at their beck and call. However, unlike yachts, health care is not discretionary, and everyone should be entitled to the same quality.” So, direct-pay physicians improve the quality of healthcare only for only some patients (i.e, for their own patients), and so have no place in the healthcare system.

In a 2002 article in the New England Journal of Medicine, Troyen A. Brennan M.D., J.D., and M.P.H., really gets to the point. Referring to direct-pay practices as “luxury primary care,” he notes that “traditional medical ethics is rather poorly equipped to address issues related to luxury primary care.” That is, while “traditional” medical ethics always places the individual patient first, that kind of thinking is now outmoded. “(M)ost ethicists now agree that the financial structure of health care is an important subject for ethical consideration. Access to health care, in particular, is a salient ethical issue.” Direct-pay practitioners threaten (by their elitism and the limited size of their practices), to limit access to primary care, and thus are in fundamental violation of medical ethics.

The argument here, for those who missed it (advanced by fellow physicians no less), is that, of the two competing ethical precepts now established by New Medical Ethics (i.e., the physician’s obligation to the individual patient vs. the physician’s obligation to society), clear primacy is to be given to the physician’s obligation to society. Physicians must (like it or not) place the needs of society above the needs of the patient – and participate in covert bedside healthcare rationing. Physicians who take the only path remaining to them that allows them to make the individual patient their primary obligation are to be castigated as ethically deficient.

When ridicule and demonization fail to suppress their opposition, Progressive dogma indicates it’s time to resort to force. The first pass in this regard, of course, is always to render the opposition illegal. (Actual violence is reserved for criminals who persist in their misbehavior, despite more polite efforts to get them to behave lawfully.)

Making direct-pay medical practice illegal has not been accomplished yet, but clear efforts have been made in this regard. Noting with alarm the rise of direct-pay primary care, numerous Congresspersons have issued statements of concern, suggesting that perhaps Congress should “look into” the propriety of such activities.

Indeed, the first step by Congress has already been taken. In 2003, as part of the Medicare Prescription Drug, Improvement, and Modernization Act, Congress directed the GAO to study and report on the effect of direct-pay practices on Medicare patients. The GAO did so in 2005, and a fair paraphrase of its report is as follows: “The practice of direct-pay medicine is not currently a threat to Medicare patients, because the direct-pay movement is not large enough yet to have an impact. If it does begin to have an impact on Medicare patients, action will have to be taken.” That is, direct-pay medicine was considered OK in 2005 not because it was inherently an ethical and legal form of medical practice, but simply because there were not enough practitioners at that time to bother about. The clear implication is that Congress stands ready to pass laws outlawing – or, at least, severely limiting – direct-pay practices, as soon as those practices begin to “impact” the system.

A follow-up report was done in 2010 which showed a 5-fold increase in the number of direct-pay practices since 2005. It is not yet clear what actions the Feds may take – the numbers are still quite small – but leaders of MedPac (a commission that advises Congress on Medicare) has publicly expressed alarm that this new phenomenon appears to be growing rapidly.

Certain state governments are not waiting for Congress to ban direct-pay practices. The state of Maryland and a few others have taken the creative position that, because many direct-pay practices work on a retainer basis, they meet the definition of a health insurance company. And as a health insurance company, to be considered legal entities, they have to have millions of dollars set aside to pay for unforeseen “claims.” (Interestingly, the lawyers in state legislatures who are advancing this argument have never suggested that the same rules be applied to attorneys, who also often work on a retainer model.) According to the Baltimore Sun, the state’s stance in this regard has already successfully caused several primary care physicians to abandon their plans to become retainer practitioners. This interesting pathway to banishing direct-pay practices is being taken up by other states, as well. In early 2012, for instance, the state of Oregon also began requiring direct-pay physicians to register their practices with the state insurance commission.

Less devious (but more draconian) is the action that was proposed in the state of Massachusetts (whose universal healthcare system, we’ve all heard, is a preview of Obamacare circa 2015). A bill was introduced in 2009 in the Massachusetts Senate which would require doctors, as a condition of their licensure, to accept payment rates as determined by the government. The bill has not become law in Massachusetts (not yet, anyway), but its introduction illustrates the tactics which are being entertained to make direct-pay practices completely impracticable, if not illegal.

Since medical licensing is controlled by the various states, it would take 50 bills like the one proposed in Massachusetts to really get rid of direct-pay healthcare. But there are ways for the Central Authority to accomplish this goal much more expeditiously. Now that the federal government directly controls all student loans, for instance, it would be a simple matter to make student loans for medical students contingent on agreeing to become primary care doctors working strictly within the government controlled system, or to offer loan forgiveness for doctors who agree to do so, or to rescind favorable re-payment conditions (retroactively, and decades after the fact, if necessary) for doctors who go to a direct-pay model later in life.

Even without taking such action, the Central Authority may already have poisoned the water for direct-pay practices. Attorneys representing direct-pay practitioners think they have discovered a potentially fatal problem within Obamacare. Under this law, apparently only physicians enrolled in Medicare can order durable medical equipment or home health services for Medicare patients. Worse, the language of Obamacare may award to the Secretary of HHS the authority to expand this limitation to all other medical services they might order. If direct-pay physicians are banned from ordering any medical services for their patients, it is difficult to see how their practices can remain viable.

Direct-pay practices are the last, best hope for patients who want their own individual interests looked after, and for their doctors who want to practice their profession ethically. This is why Progressives are determined to terminate them with extreme prejudice.

What Do Contraceptives Have To Do With All this?

In early 2012, President Obama unleashed a firestorm when he ordered HHS to issue a directive requiring all organizations providing health insurance to their employees to cover contraception, “morning after” pills, and sterilization procedures. This directive stunned the American Catholic leadership, whose support for the Obamacare legislation (they tell us) was predicated on assurances that healthcare reform would never require Catholic institutions to violate their fundamental principles. The bishops, and many American Catholics, felt betrayed.

Some felt personally betrayed. Cardinal Timothy Dolan had met in the Oval Office with the President in November 2011 to discuss this very issue, and was assured by Obama’s own lips that the administration was committed to protecting the church’s principles. This new directive, Cardinal Dolan said after the President’s directive on contraceptives, “seems to be at odds with the very assurances that he gave me.” (This is as close as a Cardinal may come, when speaking of the President, to saying, “He lied to me.”)

Progressives were delighted with the new rule, which put the principles of religious belief into their proper place. Conservatives, however, along with Catholic leaders and leaders of other religions, expressed outrage at the President’s directive, which was a clear assault on religious freedom in America.

The President was ready for them. Supported by his allies in the American media, he portrayed objections to his new directive as a “Republican War on Women.” It is instructive to consider the basic premise of this War on Women, to wit: By objecting to the new directive, Republicans are saying that women should not have access to contraceptives.

This twist of logic seems completely absurd, from almost any perspective.

Almost.

If there is one aspect of healthcare services to which American women have plenty of access, regardless of their income levels, it is contraceptive services. That is why we taxpayers fund Title X Family Planning Services, and also why we fund Planned Parenthood. And for any woman who does not wish to avail herself of this taxpayer-funded access to contraception, Walmart sells birth control pills at $10 for a month’s supply. There is no lack of ready access to contraception.

Indeed, if Republicans really wanted to prevent women from having contraceptives, objecting to the President’s new directive would not be of any material help whatsoever in accomplishing such a goal.

But there is, in fact, one perspective from which blocking the President’s directive would indeed limit womens’ access to contraceptives. If one approaches the issue from this perspective – and only if one approaches it from this perspective – then the idea of a War on Women makes logical sense. Furthermore, when we listen to the passionate, heart-felt and indeed almost tearful arguments that are being made by Progressives against the heartless Republicans – vociferously denying that Republicans care anything about religious freedom or constitutional authority, and insisting instead that they only want women to be denied contraceptives – it seems plain that this is, in fact, the perspective which Progressives must necessarily hold.

That perspective is: Anything that constitutes healthcare MUST be provided by government-approved insurance products, since if it is not provided by government-approved insurance products, one cannot legally acquire it.

So, in fact, the controversy over whether religious organizations must provide insurance that covers contraceptives boils down to the notion that people should not have to – and indeed should not be permitted to – purchase healthcare services on their own.

The President’s directive on contraceptives, therefore, seems to have been issued in order to establish, once and for all, the essential set of foundational principles for Obamacare, to wit:

1) The government will determine what constitutes healthcare and what does not.
2) If the government says it’s healthcare, every insurance product must cover it.
3) If it’s not covered by insurance, thou shalt not have access to it.

Women must be provided contraceptives without paying for them NOT because there are so many women going without them today, due to insufficient access. Rather, women must be provided these services without paying for them because we cannot allow women (or any patient) to pay for these services (or any service the Central Authority classifies as “healthcare”) out of their own pockets.

All healthcare services must be covered by all insurance products – regardless of which institutions provide those insurance products – precisely because nobody can be permitted to pay for healthcare outside the sanctioned insurance product.

This is the principle which is being established by the President’s new directive. This principle, so critical to Obamacare and to the Progressive agenda, is a principle worth fighting for. None of the other explanations offered by proponents or opponents of the President’s action make any sense.

Summary

My main point, once again, is that the Central Authority has a deep and abiding need to limit our individual prerogatives when it comes to our healthcare, and has been acting on that need for a long time. The basis for these limitations on our individual liberties – the principle of social justice – has already been established, and has survived court challenges.

Extending these limitations on personal liberties to Obamacare, and broadening their usage, will not require any major changes in direction, or principles, or policy, but will merely require an expansion of already existent – and even “venerable” – rules, rules which have been an established part of Medicare for many years.

Such restrictions by our government on such fundamental individual liberties are a very big deal indeed, and, in fact, signal an end to the Great American Experiment.

When I have expressed this conclusion in the past, many critics have admonished me that I make far too much of it, and that our government, in its benign wisdom, is just doing what’s best for us. I beg readers to forgive me if I see, in such a reply, even more evidence that the only nation in the history of mankind to be founded on the principles of individual freedom is well on the way to abandoning those exceptional principles, for the sake of the same, soothing-but-empty blandishments that have been offered, throughout human history, by well-meaning people who end up producing – or becoming – tyrants.