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 The Real Fight is Just Beginning (Limiting Individual Prerogatives, Part 1) [12:52m]: Play Now | Play in Popup | Download (5)

Unlike many of those who actually supported President Obama’s healthcare reform, DrRich always remained confident (even during the darkest days, such as right after the Scott Brown election) that Obamacare would pass.

DrRich’s confidence stemmed from the simple fact that the health insurance industry required this outcome. That industry, having clearly reached the end of its life-cycle and having nowhere else to turn, desperately needed the government to provide it with a graceful exit strategy. And Obamacare, which promised to convert the health insurance industry into a public utility, was as good a deal as they were going to get. And so, while the President and his supporters traveled the land, painting insurers as the very embodiment of all healthcare evil, with sundry hapless victims of insurance industry atrocities in tow (for demonstration purposes), we Americans were treated to the spectacle of the insurers themselves not only declining to defend themselves, but actively adding fuel to the fire whenever necessary to keep reform moving along, and gratefully embracing their assigned role as the villains of the set piece. And in the end we got the healthcare reform the insurers desperately needed.

So, dear readers, now that this thing has finally come to pass, it is time to prepare ourselves for the real fight, the fight whose outcome is actually in question, and which will determine not merely what kind of healthcare system we will finally end up with, but more importantly, what kind of society we will be. That question, of course, is whether individual Americans ultimately will be restrained from using their own resources to provide for their own medical care.

DrRich has said many times that this was to be our real battle. And whenever he has said this, loyal (but misguided) readers have questioned his sanity – or at least, his judgment. There is simply no reason (these critics insist) for our leaders to attempt to prevent individuals from buying some of their own healthcare with their own money. There is nothing in the bill (they go on) that explicitly does so. And besides (they offer as a clincher), we’re Americans, and even our clueless political leaders know that we’d never stand for it. The very notion that our government would try such a thing amounts to simple paranoia.

DrRich sincerely hopes his critics are right, and that his fear over such a restriction to our personal liberties is just one more manifestation of his paranoid psychosis. For, if his critics are right, not only do we have drugs for that, but also DrRich would be allowed to buy them.

DrRich is sorry to say, however, that if we Americans are to suffer no 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), this outcome will likely result solely from enough of us remaining vigilant, and vigorously fighting oppressive efforts whenever 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.

This will truly be a momentous fight. Its outcome will determine, to a very great extent, what kind of country we will be, and more importantly, whether the Great American Experiment – arguably the greatest secular endeavor in human history – will continue, or will end in a whimper.

In this and in the next few posts, DrRich will attempt to explain himself by addressing three specific questions. 1) Why must individual prerogatives be restrained in our new healthcare system? 2) What evidence do we have that such restraining efforts are already in the works? 3) How have such restraining efforts already become ingrained in our current, pre-reform healthcare system?

Why Individual Prerogatives Must Be Restrained

It is natural and unavoidable for universal healthcare systems to strive to limit individual prerogatives.*

These healthcare systems are “universal” in two senses. First, they attempt to cover all people. Second, almost by definition they cover “all” healthcare services. Under America’s new healthcare law, for instance, our new health insurance utilities (formerly health insurance companies) are required to issue policies (which every American must have) that cover everything. “Qualified” health plans under our new law MUST cover (as laid out in Section 1302): 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, including oral and vision care.

Fundamentally, this “universality of features” reflects a particular philosophy. The central authority is telling the individual that “everything” will be taken care of for them, from soup to nuts. So no need to worry your 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.

It is important for the government to control all healthcare spending not only because it is the natural state of governments to continually accrue all the power they can (see: Thomas Jefferson), but also because, in the case of healthcare, controlling all expenditures is essential for the purpose of covert rationing.

Allowing individuals to spend their own money fundamentally undermines such a 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 may be doing some kind of rationing. When one is dedicated to rationing covertly, such an implication cannot be permitted.

Perhaps more importantly, 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. That is, it raises expectations for everybody, and these higher expectations make it that much more difficult for the central authority to pull its covert rationing strings.

(The official reason the central authority will always give for restricting individual prerogatives is one of “fairness.” Allowing the rich to go outside the system would create an unfair, two-tiered healthcare system, etc., etc. But the real reason is that individual healthcare spending undermines the government’s control, and that control is essential for covert rationing.)

The critical importance of controlling the expectations of the masses is nicely illustrated by some of the problems being experienced by the British and the Canadian healthcare systems. In both of these systems, the very visible progress that has been made in the American healthcare system – new drugs, new techniques and new technology – has created new demands and new expectations among Canadian and British citizens. Essentially, seeing what was possible, enough of the population demanded better care that something had to change.

The inability of these universal healthcare systems to ignore such increased expectations has led to an acceleration in expenditures, and even to loosening up the restrictions on individuals. (Both of these universal systems started out, as a simple matter of course, by strictly forbidding individuals from purchasing “extra” healthcare with their own funds.)

Some of DrRich’s critics have argued that such “loosening up” shows that any restrictions on individuals simply will not stand – so we don’t really have anything to worry about. For, if such restrictions cannot be maintained in Canada or Great Britain, how will they ever be maintained in the U.S.? Perhaps. But DrRich suggests that, to the contrary, the fact that restrictions on individuals in Canada and Great Britain systems had to be revised simply illustrates the critical necessity, in any universal healthcare system, of managing expectations. For a failure to manage expectations, obviously, leads to a loss of control. Had it not been for the very visible example of American healthcare to show them what was possible, citizens of Canada and Great Britain quite possibly never would have agitated for “more.” As it is, thanks to the unfortunate example of high-cost healthcare their citizens saw in the U.S., British and Canadian officials were simply unable to manage the expectations of their citizenry.

Now that we too will soon have mandated universal healthcare (much to the relief, no doubt, of Canadian and British healthcare bureaucrats), it will become critically important for our government to manage the expectations of American citizens. Since American healthcare bureaucrats won’t have an annoying external healthcare system to worry about, continually displaying more effective, and more expensive, healthcare options,the job will be somewhat easier for them than it was for their counterparts in Canada and England. For American bureaucrats, managing public expectations will mainly mean restraining individual American citizens from going outside the system, and buying extra healthcare with their own money. This makes restricting individual prerogatives in the U.S. 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.

DrRich believes that they will pull out all the stops to restrict individuals. Whatever methods they employ will, of course, be conducted only for the best of reasons – to have the fairest healthcare system possible, to have the most ethical healthcare system we can devise, and to protect misled Americans from throwing their hard-earned money away on unproven medical services. Whatever the reasons they might offer, their attempt to restrict individual prerogatives will become deadly serious, because doing so is absolutely essential to their real aims.

Covert rationing demands it.

*This is the case in practice, but not necessarily in theory. In his book, DrRich proposed a kind of universal healthcare system in which each American would be provided with catastrophic universal health insurance (which would operate under a system of open and transparent rationing), and in which Americans would then be expected to buy their more routine healthcare, as well as any non-covered healthcare they might want, themselves. (Poor Americans would be subsidized to do so.) But a system like DrRich’s encourages – even demands – individual responsibility, and is therefore philosophically objectionable.

__________
Part 2 of Limiting Individual Prerogatives

Part 3 of Limiting Individual Prerogatives

Part 4 of Limiting Individual Prerogatives

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 An Ounce of Prevention Costs A Pound of Cure [16:10m]: Play Now | Play in Popup | Download (3)

As DrRich has noted many times over the years, “preventive healthcare services” cost the healthcare system far more money than they can ever save, and for this reason, any healthcare system engaged in covert rationing is going to have to find a way to stifle these preventive services.

Now, dear reader, before you go away angry, DrRich understands that some preventive measures are indeed very cost-effective. In fact, DrRich will now engage in a bit of cost-effective preventive healthcare: Don’t smoke. Don’t eat so damned much. And get some exercise.

There. DrRich has just successfully administered pretty much all of the truly cost-effective preventive measures known to modern medicine. (And it’s only cost-effective because the advice was free.)

All the other preventive stuff we do in medicine tends to bend the cost curve in the wrong direction.

Reasons that preventive healthcare services increase the cost of healthcare include: a) The preventive measure itself costs money. b) The preventive measure may not be effective. c) Many “preventive healthcare services” consist of some kind of screening test for “early detection,” and these screening tests almost always produce more false positive results than true positive results – leading to the need for more definitive, more expensive, and often invasive confirmatory tests. d) “Early detection” of any medical condition often detects “occult” disease, that may or may not have become manifest if it had remained undetected. e) Treating the diagnosed – and often occult – medical condition is often very expensive, produces complications, and/or is ineffective. f) Successfully preventing the target medical condition may give patients more time to consume healthcare resources for all their other medical conditions.

Please note that DrRich is not arguing here that preventive services are useless or undesirable. Often they are quite useful and very desirable. Rather, he is arguing that the healthcare system will spend more money by offering these preventive services than if it did not offer them.

This fact ought to prove embarrassing to our leaders, who have spent the last few years assuring us otherwise. Indeed, they have doggedly insisted, not only are preventive healthcare services cost-effective, but also it is precisely because of such preventive services (delivered in the remarkably efficient manner which will be achieved by our new healthcare system) that we will enjoy tremendous cost savings over the next decades.

Like Nancy Pelosi says, it’s all about “prevention, prevention, prevention.”

And having taken this bold and very public stance on prevention, our leaders are going to have to walk very gingerly (now that they have finally been successful in giving us the gift of healthcare reform), as they seek ways of cutting back on those selfsame preventive services.

They know this, of course, and have taken steps to provide themselves with the tools they will need to accomplish this feat. Their chief tool, based on what DrRich can find in the new healthcare law, is our old friend, the United States Preventive Services Task Force (USPSTF).

Readers may remember that it was the USPSTF that released the controversial new “recommendations” on breast cancer screening last fall. Readers will also recall that the USPSTF’s new recommendation, that women under 50 no longer need screening mammograms, proved quite shocking to many women – women who had been urged for over a decade by various cancer societies, by the government, and by their doctors to get regular mammograms beginning at age 40, because the early detection of breast cancer was the best way not to die from breast cancer. Indeed (readers will again recall), the outcry was so great that Secretary Sebelius quickly issued a statement reminding us that the recommendations of the USPSTF were merely that – non-binding recommendations – and that women should continue getting their screening mammograms as they and their doctors thought best.

DrRich wondered at that time whether Secretary Sebelius (who was simultaneously urging all of us to support the healthcare reform bills which were then making their way through the House and Senate) actually knew that both of those bills contained language making the recommendations of the USPSTF legally (and retrospectively) binding.

In any case, DrRich wishes to take this opportunity to remind his readers that the healthcare reform which is now the law of the land indeed makes the USPSTF the arbiter of which preventive services are to be covered by private insurers (Section 2713), by Medicare (Section 4105), and by Medicaid (Section 4106). To be sure, presumably to bail out Ms. Sebelius, new language was added (Section 2713) to say that the recent recommendations on mammography do not apply, at least not for private insurance plans. (Similar language, however, does not appear in the Medicare or Medicaid sections [4105 and 4106], so patients covered by these programs may indeed be subject to the new mammography recommendations .) New mammography recommendations aside, for the rest of the preventive healthcare services that exist in the universe, only those that have achieved a grade of A or B by the USPSTF will be covered.

Now that the USPSTF has been officially converted from a panel that simply makes recommendations which doctors and insurance companies can take or leave alone, into a panel that determines definitively what is covered and what is not – and indeed, into the chief tool by which our leaders will seek ways to withhold expensive preventive services – DrRich would like to very briefly restate his objections to the USPSTF’s recent mammography rulings.

In a word, DrRich’s problem with the USPSTF’s revised mammogram recommendations has nothing whatever to do with whether mammography is really useful or not, but rather, with the methodologies the panel used to make those recommendations. For, if those methodologies are deemed legitimate, unfortunate precedents will have been set. Specifically, by analyzing the USPSTF’s own justifications for making its new mammogram recommendations, it is possible to derive at least four new “rules” under which the panel can operate in the future.

1) The USPSTF now recommends that breast cancer screening no longer be done for women under age 50. But by the panel’s own words, screening mammography in women in the 40 – 49 age group appears as effective at reducing mortality as it is in women 50 and older, and the panel indicates this fact several times within its own document. And as nearly as DrRich can tell, the panel’s only concrete rationale for dropping mammography for women under 50 is that it has found “a new systematic review, which incorporates a new randomized, controlled trial that estimates the ‘number needed to invite for screening to extend one woman’s life’ as 1904 for women aged 40 to 49 years and 1339 for women aged 50 to 59 years.”

This rationale implies the following rule, Rule 1: If you have a preventive measure which is equally effective across a large population of patients, you can withhold that preventive measure from any arbitrary subgroup within that large population, as long as performing the effective measure in that arbitrary subgroup is more costly than it is for some other arbitrary subgroup.

2) In its public justification for withholding mammogram screening for women aged 40 – 49, the USPSTF did not emphasize cost savings, but rather, emphasized the fact that screening in this age group results in more false positive tests than for older age groups, and thus in more unnecessary biopsies, and the potential for more unnecessary emotional trauma. While this is true, the traditional response to such a circumstance would be for doctors to carefully review the pros and cons of screening with each woman, so as to allow the individual to decide whether the possibility of needing an unnecessary biopsy outweighs the possibility of diagnosing breast cancer while it is still curable.

But instead, the panel established Rule 2: Rather than allowing individuals to apply their own values when weighing healthcare decisions which reasonable people could decide either way, it is legitimate for the panel to make those decisions from on high for all patients; and furthermore, it is legitimate for the panel to make different decisions for different and arbitrary subgroups of patients (e.g., one decision for women 40 – 49 years of age, another decision for women over 50).

3) The USPSTF now recommends that women not be taught breast self examination (BSE). In point of fact, since most doctors stopped teaching BSE a long time ago, this recommendation will probably have little actual impact. But the panel came to this recommendation based on clinical trials conducted in backward, 3rd world healthcare systems (Russia and China), where outcomes with breast cancer have little to do with outcomes in the U.S.

Perhaps more to the point, a similar tactic was used in deciding to withhold mammogram screening for women under 50. That is, the “new randomized controlled trial” the panel invoked to justify this decision was conducted in England, where outcomes for the treatment of breast cancer are substantially – and famously – worse than they are in the U.S.

So Rule 3 is established: It is legitimate to take the results of clinical outcomes trials conducted in backward countries with poor healthcare systems, or in less backward countries which nonetheless have demonstrably inferior outcomes, and directly apply those results to coverage decisions affecting American patients who are being treated in the American healthcare system. This is like performing a careful statistical analysis of outcomes from a Pee Wee football league, then telling the New England Patriots to abandon the forward pass, because the percentages just aren’t there.

4) The USPSTF now recommends that women 75 and older not get breast cancer screening, despite the fact that (from the panel’s own words) breast cancer is the leading cause of death in this age group. The panel justifies this recommendation by noting that there are insufficient data from randomized trials in these patients, and further, that “women of this age are at much greater risk for dying of other conditions that would not be affected by breast cancer screening.”

It is, perhaps, convenient that very few randomized clinical trials assessing preventive measures have ever been conducted in elderly populations, and further, that if such trials were conducted, any actual benefit that might accrue to the subset of relatively healthy older people would be diluted by the inclusion of large numbers of less healthy elderly patients. And, while doctors usually have little problem identifying those healthy 75-year-olds who are likely to survive another 10 – 15 years, and in whom detecting early breast cancer would likely be beneficial, the large, long-term, randomized clinical trials “proving” to the satisfaction of the USPSTF that these women deserve screening will, for all practical purposes, never be done.

So, Rule #4: Preventive measures should not be offered to old people, because they’re probably going to die soon anyway.

Those who want to criticize DrRich  because they feel the USPSTF’s actual recommendations on breast cancer screening are appropriate may, of course, do so. But you will be revealing yourself as a dunderhead. For, as DrRich has just made quite plain, he is not necessarily criticizing the substance of the new recommendations, but rather, the dangerous methodologies the panel used to reach those recommendations, and the four new rules those methodologies have established. These precedents are very troublesome indeed – especially now that we’re no longer dealing with the quaint USPSTF of old. The new USPSTF has acquired broad new powers, and is no longer making mere “recommendations,” but rather, definitive coverage decisions which will directly affect all of us.

And this, it appears, will be the primary means by which our leaders will get out of providing us with all those robust preventive healthcare services they always insisted they were dying to implement.

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 Some Powers of the Immutables [12:27m]: Play Now | Play in Popup | Download (10)

As DrRich helpfully pointed out in his last post, our new healthcare law (Section 3403) creates a new and apparently immutable entity called the “Independent Medicare Advisory Board,” whose job is “to reduce the per capita rate of growth in Medicare spending.” This, in fact, is the right goal. For it is the rate of growth in healthcare spending (and not the absolute amount being spent) that threatens us with societal disintegration within the next couple of decades.

But it is mathematically impossible to attribute this explosive growth rate in healthcare spending to waste and inefficiency. Most of that growth must necessarily be caused by healthcare expenditures that are actually producing some benefit (though, to be sure, some of that benefit is marginal). And this means that in order to reduce the rate of growth, we have to ration healthcare (i.e., to withhold at least some beneficial healthcare from at least some of the people who would benefit from it).

We can only conclude that, in order for the new IMAB to do its designated job, it must ration healthcare. But since the same law that creates the IMAB also stipulates that it must not ration care, the IMAB must necessarily perform that unavoidable rationing covertly. This is a very difficult job, as demonstrated by the fact that the private health insurers (even with the wonderful incentive of profits, and with the full support of Congress) have utterly failed to develop a sustainable business model based on the covert rationing of healthcare.

But still, this is the job that our leaders have now assigned to the IMAB. And so, DrRich has attempted to tease out some of the options which remain available to the Immutables as they embark on their difficult but necessary assignment of covertly rationing our healthcare. (As DrRich will shortly explain, the legal nomenclature for the IMAB is actually a bit confusing and misleading. So for clarity’s sake, DrRich will hereafter refer to this Board as the Immutables.)

DrRich has found, so far, at least three powers which our new healthcare law grants to the Immutables, that will give them at least a fighting chance at success.

1. The most fruitful pathway to covert rationing remains open to them.

The new healthcare law specifically does not allow the Immutables “to ration health care, raise revenues or Medicare beneficiary premiums. . ., increase Medicare beneficiary cost-sharing (including deductibles, coinsurance, and copayments), or otherwise restrict benefits or modify eligibility criteria.” While these prohibitions might appear on the surface to greatly limit the options available to the Immutables, in fact all this language does is to formalize their directive to ration covertly instead of openly. Since covert rationing has long been our society’s policy regarding healthcare, these prohibitions actually change nothing.

What is left to the Immutables, of course, is the most time-honored pathway to covert rationing – coercing the healthcare providers to place the needs of the payers ahead of the needs of their patients. DrRich has posted innumerable examples over the years showing how payers do this. He is confident that the Immutables will employ all the methodologies which have been devised to date for coercing providers, and (with the awful power of the sovereign authority behind them) they will invent some really useful new ones.

2. The Immutables have been granted near-dictatorial authority.

On the surface, one might think of the Immutables as a sort of Mr. Rogers of healthcare – a mild-mannered, friendly, always-helpful, but ultimately undemanding agent for good. One might get this impression by reading the first few paragraphs of Section 3403, which paint the new entity as an “advisory” board, whose main task is to develop “proposals” and “advisory reports,” and these “proposals” and “advisory reports” would solely consist of various “recommendations,” that ought to be “considered” for the purpose of cost reduction.

Indeed, one might get the impression that the main difference between the Immutables and this blog is that the former is appointed by the President, and has a travel budget.

Nothing could be further from the truth. Once the Chief Actuary of CMS determines that the projected per capita growth rate for Medicare exceeds the target growth rate, the Immutables are required to submit a “proposal” which will cut costs sufficiently to bring the growth rate back in line. Then, the Secretary of HHS is required to implement that “proposal” in its entirety, unless Congress acts to block implementation. However, Congress is forbidden from taking any action “that would repeal or otherwise change the recommendations of the Board,” unless it replaces those “recommendations” with its own legislation that would cut Medicare spending to the same target level.

For all practical purposes, then, the cost-cutting “recommendations” which the Immutables would “propose” for “consideration” will be implemented nearly automatically, with the full authority of the Federal government.

And, for all practical purposes, the Immutables will become a new agency of the executive branch, with near-dictatorial authority to cut Medicare spending as it sees fit.

3. The Immutables have been granted the authority to limit private health-care expenditures.

Those who paid attention to the process that brought us our new and transformational healthcare system might recall that the Senate bill, which ultimately became law of the land, was never designed to be actually implemented. It was designed solely to assure 60 votes in the Senate, after which the Joint Conference with the House was to meld the House Bill and the Senate Bill into a workable law.

As part of the negotiations to gain those original 60 votes in the Senate, five or six Democrat Senators cobbled together a list of amendments to the original Senate Bill – the so-called Manager’s Amendments. It is in the Manager’s Amendments that one can find such famous niceties as the bribes paid to Nebraska. But the Manager’s Amendments (which, contrary to the expectations of the actual Managers, are now part of our new healthcare law) contained lots of other stuff as well.

One of the more interesting parts of the Manager’s Amendments (Section 10320) is entitled, “Expansion Of The Scope Of, And Additional Improvements To, The Independent Medicare Advisory Board.”

Section 10320 (which can be found way down on page 2210 of the new law) grants the Immutables (beginning in 2015) the authority to limit all healthcare expenditures, and not just expenditures by Medicare or government-run programs.

To emphasize this expanded authority, Section 10320 changes the name of the Immutables from the Independent Medicare Advisory Board to the Independent Payment Advisory Board. It directs the Immutables (and now readers will understand why DrRich has resorted to this more descriptive name), at least every two years, to “submit to Congress and the President recommendations to slow the growth in national health expenditures” for private (non-Federal) healthcare programs. Furthermore, it allows that these “recommendations” may be implemented by the Secretary of HHS or other Federal agencies administratively.

Ostensibly, the justification for this expansion of the Immutables’ authority is that controlling private healthcare expenditures will directly impact Medicare, since the “target” Medicare growth rate which the Immutables are charged with achieving will be determined by overall healthcare expenditures. More practically, if Medicare patients (who are subjected to arbitrary cost-cutting measures) see their younger counterparts enjoying less restricted healthcare, the old farts are likely to become rowdy. But DrRich suspects there was an even stronger reason to give the Immutables this authority over private healthcare expenditures.

DrRich has often speculated that the real fight regarding healthcare reform will come when the government attempts to limit the ability of American citizens to spend their own money on their own healthcare. This limitation is absolutely necessary if we’re to have a single-payer healthcare system, since if you can spend your own money on your own healthcare, that would be at least two payers. (It would also be “unfair.”)

Many of DrRich’s readers think it’s absurd to think we’re headed toward a single-payer system. DrRich hopes these readers are correct. But he also thinks there’s plenty of evidence that some of our leaders are intentionally taking us there. The new healthcare law, at least arguably, is entirely consistent with such an ultimate goal. And if we are ever to have a single-payer system, the government ultimately will need the authority to limit private expenditures.

DrRich does not believe that the Immutables will act immediately to limit the ability of private citizens to spend their own money on their own medical well-being. Such an action would create a great uproar today, and likely for several years to come, at least until those of us who still cling to the quaint notion of individual autonomy are finally worn down, or re-educated, or otherwise made to see the light.

But whenever that time comes, Section 10320 of the new healthcare law appears to give the Immutables all the authority they will need.

(At the same time, those who castigate DrRich for paranoia might consider reading just how far our healthcare system has already come in limiting the prerogatives of individuals.)

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 The Audacity of Perpetuity [7:57m]: Play Now | Play in Popup | Download (4)

As DrRich promised, he has embarked on an exploration of how our new healthcare law will enable our government to attempt the difficult job of covertly rationing our healthcare, a job which Congress had previously designated by law to the insurance companies. (DrRich is not making this up. See Pegram et al. V. Herdrich (98-1949), 530 U.S. 211; 2000.*)

DrRich considers himself to be a reasonably sophisticated person, perhaps even more sophisticated than Ms. Palin, so he did not really expect that Congress would pass a new healthcare law that established actual “death panels.” However, DrRich also understands that the new law, which covers over 2400 pages, has actually been read from front to back by only a very few, very dedicated individuals – and, likely, by hardly any who voted for it – and so, in the interest of thoroughness, DrRich searched the document for the phrase “death panel.” He is pleased to report that there were no matches.

What he did find, however, in Section 3403, is something called the Independent Medicare Advisory Board. The purpose of the IMAB is to “reduce the per capita rate of growth in Medicare spending.” In his next post DrRich will examine the IMAB in more detail, to try to show exactly how this board will reduce healthcare spending. Suffice to say for now that the new law awards the IMAB sweeping powers, powers that will affect all American healthcare (and not just Medicare), and that hands the government some truly useful tools for covert rationing.

In the present post DrRich will simply make two striking observations about the IMAB which, he believes, ought to tell us something useful about the mindset of those who – in striving to fundamentally transform America – have now successfully remade our healthcare system.

First, as the IMAB carries out its assigned job of reducing the growth in healthcare spending, it is explicitly forbidden to ration healthcare. Specifically, the IMAB’s proposals “shall not include any recommendation to ration health care.” Since rationing is Job One, this directive necessarily limits the IMAB to engaging in covert rationing (since covert rationing is, by definition, deniable by the party who is doing it). Thus, covert rationing is now the law of the land.

And second, Section 3403, the section that creates the IMAB and spells out its functions, contains language that, DrRich suspects, has never been seen before in American legislative history:

“It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

So, dear reader, the IMAB and all its legislated functions (including the requirement to do its rationing covertly) are in force for perpetuity. Our Congress has passed legislation that purports to bind all future Congresses from altering it in any way.

We can surmise from this fact that those who wrote this law must consider the IMAB to be very, very important. Indeed, it must necessarily be the most important feature of our new healthcare system. It may, in fact, be the most important legislative provision ever written (since no other provision has ever received such extraordinary protections from any future alterations whatsoever). For this reason, in future posts DrRich will attempt to examine in some detail the powers that have been granted – for all time – to the IMAB.

But for now DrRich asks his readers simply to bask in the utter audacity of our current crop of leaders, leaders who are so sure they know what’s best for us that they were willing to engage in all manner of legislative legerdemain to get their way, not only against the apparent expressed will of the people, but also (as it turns out) against the objections any future American Congress may have that is sent to Washington by those people.

Not even our Constitution itself – a document that attempted to establish a government for all time – was as audacious as this. For the Constitution, at least, provided a mechanism for its own alteration.

As DrRich racked his brain to think of the last time a law was promulgated with such audacity – not with the audacity of hope, but the audacity of perpetuity – he initially drew a blank. Even monarchs who purported to reign under Divine Right understood that future monarchs, who would also rule under the same God-given right, might justly alter any laws they made.

DrRich believes we need to go all the way back to Moses, coming down from Mt. Sinai with the Ten Commandments, to find a law or set of laws that, from the moment they were written, were decreed to remain in force for ever and ever.

Only God has ever tried this before.

*In its unanimous opinion on Pegram et al. V. Herdrich, the Supreme Court spelled out what Congress had in mind when it created HMOs. That ruling said, the “inducement to ration care is the very point of any HMO scheme, and rationing necessarily raises some risks while reducing others.”

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 Healthcare Reform Explained - An Updated Guide For The Perplexed [15:42m]: Play Now | Play in Popup | Download (5)

Now that the great campaign to transform the American healthcare system has passed a critical milestone – the passage of President Obama’s healthcare reform legislation – many Americans find themselves confused about what it all means. What just happened here? What will happen to our healthcare insurance? How much will it cost, and who will pay for it? Why does the whole process seem so darned difficult and confusing?

The confusion is quite natural, since, in fact, nobody really understands what the new legislation says. It is common knowledge that only one or two of our legislators actually read the whole 2700 pages, and those who did only read it so they could make trouble for the President at his Bipartisan Healthcare Roundtable this past spring. (You know who you are, Paul Ryan.)

Remember when Nancy Pelosi said, “We have to pass the bill so we can all find out what’s in it,” and all the Republicans jumped all over her for making such a stupid remark? Well, DrRich is here to tell you that Nancy was displaying uncommon wisdom. Because DrRich now has read large parts of the legislation himself, and can say with confidence that the bill is not merely lengthy, convoluted, and difficult to understand. Rather, its meaning is fundamentally indeterminate.

The indeterminacy of the bill’s language was, of course, intentional. It was done so that, for instance, some legislators could be assured that the bill disallowed Federally funded abortions, and other legislators could be assured that the bill encouraged Federally funded abortions, while the actual language of the bill could be construed to bolster either assertion. Therefore, Speaker Pelosi’s silly-sounding statement was not only correct, but also was probably the most insightful commentary on the bill we’ve heard from any public official.

The bill is now being torn into bits by multitudes of officious bureaucrats, and translated into millions of pages of rules, regulations and guidelines, and then key aspects of those new rules, regulations, &c. will be fought over in courts of law. Once all that is finished, we can all find out what was in it. Just like Nancy said.

In the meantime, whatever the details of our new healthcare system turn out to be, there is a certain clear narrative to our ongoing healthcare saga that, once you understand it, will go a long way toward enlightening you about what’s really going on.

And so, as a public service, DrRich will now explain all this to you in a very simple way, so that – whatever jive you’re hearing from politicians or journalists – you will always get it. For, once you understand a few key concepts, this thing is really pretty easy to follow.

The Fundamental Problem

The fundamental problem with American healthcare is this: None of the pools of money we have created (or ever could create) to pay for our healthcare – whether those pools of money reside with the insurance companies or the government or both – can possibly buy all the healthcare that might benefit all Americans. This means we have to ration healthcare (i.e., intentionally withhold at least some beneficial healthcare from at least some of the people who would benefit from it). But because we’re Americans and Americans don’t ration, we (and in particular, our political leaders) are unable to address this need to ration openly and forthrightly. Therefore, the unavoidable rationing is being conducted covertly.

Until now, most of the covert rationing has been overseen by the health insurance industry. This, indeed, from the very beginning was the primary purpose of modern health insurance companies, as determined by Congress itself when it legislated the formation of HMOs. (See the ruling of the U.S. Supreme Court in Pegram et al. v. Herdrich (98-1949), 530 US 211, 2000.) So, when the health insurers engage in cherrypicking patients, denying medically necessary services, coercing doctors to ration at the bedside, retrospectively canceling the policies of patients after they get sick, and doing everything short of dispatching teams of Ninjas in the dark of night to slaughter some of their more expensive subscribers in their sleep, they are not really being evil. They are only carrying out the job that had been assigned to them by our society. Covert rationing is a dirty, thankless job, but somebody’s got to do it.

The major sin of the health insurers is that, despite their Herculean efforts to harness covert rationing to control costs – and despite the wondrous incentive of greater profits if they do so – they have utterly failed in their assignment. Healthcare costs continue to rise at 3 – 4 times the rise in the cost of living, and within the next couple of decades promises to bring our republic to its fiscal knees (even without all the other stuff that’s making our deficit explode).

This is the healthcare crisis, and it’s real. We simply cannot actually spend $40 trillion on Medicare patients over the next three or four decades (as we’ve explicitly promised the baby boomers). The only real question is whether we will avoid spending all that money thanks to societal disruption and revolution, or by some more civilized means. (The fiscal implosion of our society would of course finally fix our healthcare crisis. Healthcare, far from being an essential and indispensable human need, actually is a luxury, a recent artifact of our advanced, stable, and affluent culture. Runaway healthcare costs, by bringing down our societal stability, will eventually provide its own cure.) Our current “healthcare reform process,” such as it is, is our stab at a more civilized means of addressing our looming impossible fiscal obligations.

What Is Healthcare Reform Actually Going to Reform?

What we are witnessing today is merely a rather messy changing of the guard. The primary responsibility for covert healthcare rationing is going to shift from the health insurers to the government.

The health insurance industry has run out its string. They have had 15+ years of virtually unfettered opportunity to get healthcare costs under control, and they have utterly failed. Over those 15 years, their attitude has evolved from arrogance to concern to abject fear. They finally and starkly realize that they have no clue as to how to control costs. As DrRich has pointed out for three years, the insurance industry has not been looking to block healthcare reform, but rather, was partnering with the reformers in the hope of finding for themselves a graceful exit strategy. They hope to gain one last windfall in profits and stock prices (from mandates and insurance subsidies for the tens of millions of currently uninsured Americans), and once that happens, they hope to settle into the business of administering, and processing transactions for, government controlled healthcare. That is, the insurers hope to become public utilities, since that’s way better than collapsing into oblivion.

So the overriding aim of healthcare reform, with the complete support of the insurance industry, is to conduct an orderly transfer of the pools of money with which we pay for our healthcare – along with the responsibility of managing “risk” and controlling the cost of care (i.e., covert rationing) – away from private insurers and to the government.

Understanding the Players

Government control of healthcare, of course, is precisely what the Republicans accuse the Democrats of wanting, and what the Democrats angrily deny they want.

Understanding the Republicans. Republicans as a group cling to the quaint notion that competition among insurers is all that is needed to reduce healthcare costs; that given the right market incentives, the insurance industry – in its wisdom – will bring healthcare inflation under control. They utterly fail to hear what the insurance companies themselves have said (by their actions): “No mas!”

The Republicans’ arguments ring hollow. It is useless to protest that the Democrat plans will lead to rationing, when not only do we already have rationing, but covert rationing in fact has been the official cost-cutting “plan” assigned to HMOs for decades now. It is useless to protest that 85% of Americans like their current health insurance, when the fiscal reality is that health insurance will change drastically for all Americans over the next decade or so, whether we change it by design or not. It does not matter that a lot of Americans like the health insurance they have now. Keeping it over the long term is not an option.

To a very large extent (DrRich is sorry to say, what with his conservative leanings and all), with such arguments the Republicans have made themselves nearly irrelevant in the current discussion.

Understanding the Democrats. The Democrats were handed the opportunity of a generation. They had a major advantage that Democrats of the Clinton era did not have: the health insurance industry is finished, and the industry knows it. The insurance industry was not going to let this effort fail.

The chief difficulty remaining for the Democrats is that (for their own survival) they must pretend they are not engineering a government takeover of healthcare, when in fact they are. As we have seen, there is not really much choice here. They must take over healthcare even if they don’t want to (though many of them do), because the health insurance industry is finished. The pretense is necessary, however, because the notion of government-controlled healthcare is not something the people – or even many Democrats – want, or are willing to tolerate.

Like the odious job of rationing healthcare (which they have now inherited in entirety), the Democrats must attempt to keep the complete government takeover of the healthcare system as covert as possible.

Which brings us to the biggest problem of all for the Democrats. They now have to take control of covert healthcare rationing. Covert rationing will be much more difficult for a government-run system than it has been for insurance companies. A government healthcare system will not have the opportunity to incorporate the most effective rationing techniques that have been available to the insurance industry – cherrypicking patients, for instance, or canceling the policies of people who get sick. Nor will the government be able to get away with summarily denying patients needed medical services – a standard tactic of HMOs. This is especially true now that chief Republican intellectuals have called everyone’s attention to the possibility of death panels. The unwashed masses, having been duly alerted to the government’s intentions of withholding life-saving healthcare, will now be on the lookout for “unreasonable” denials of care. Any move by the government to refuse to pay for a particular medical service will have to be supported by extremely convincing clinical data (which itself will be very expensive to collect), and even then Americans may not quietly accept such denials. The “death panel watchdogs” will be alert for every move the government makes, and will be quick to howl an alarm.

So the Democrats have won a huge and historic victory. But they are just beginning to figure out what a tiger they have by the tail.

The Bottom Line

As long as we pretend we don’t have to ration our healthcare, any reforms we invent – whether we do it as Republicans or Democrats – will merely add to the confusion, inefficiency, waste, inequity, and ineffectiveness of our healthcare system. How anyone can think that a process so fundamentally grounded in obfuscation and deception as the one we’ve just witnessed will result in anything good is quite beyond DrRich’s comprehension.

Real reform would require us to:

A) Minimize the necessity of imposed rationing by having patients themselves make as many of the spending decisions as possible, using their own money. (Subsidies could be provided to people who don’t have enough of their own money to pay for routine healthcare.)

B) Provide everyone with a high-deductable, catastrophic insurance product to cover non-routine medical expenses. This is where the necessary rationing would take place, but the rationing would be open, transparent, and determined through a public process.

C) Create a private market for “extra” health insurance for those who choose to supplement the universal catastrophic plan with their own funds.

But of course, any plan that relies on both personal responsibility and open rationing is a non-starter. Which is why we are going to get what we are going to get.

Podcast:

 

 The Individual Mandate Will Stand [10:49m]: Play Now | Play in Popup | Download (2)

People who do not like the new healthcare system our government is establishing for us intend to formally challenge the constitutionality of one of its major provisions, namely, the “individual mandate” – the provision that all individuals must purchase health insurance.

The grounds for challenging the individual mandate, essentially, is that the Constitution does not grant the federal government the authority to compel legal residents of the U.S. to purchase a particular product, or enter into a particular contract, simply as a matter of their being legal residents. For many of those who object to the new healthcare law, the individual mandate goes to the principle reason for their objections – that the government has assumed for itself sweeping new powers that directly impinge on the liberty of individuals.

DrRich himself feels this way. If the government can make us buy a product against our will for the sake of the common good, then a firewall will have been taken down, and DrRich does not see any fundamental barrier to the government being allowed to compel us to any action it deems to be for the common good.

For instance, since your obesity, by sucking up limited healthcare resources, will impinge on DrRich’s ability to get whatever healthcare services he thinks he might desire, DrRich can now legitimately petition the government to regulate your intake of Twinkies. You fatty. And as for all you overweight middle-aged women out there, who habitually fail to perform the hour-per-day of exercise that best medical evidence insists you perform, it would be entirely appropriate for the President’s proposed army of college-age zealots – the Civilian Service Corps or whatever he’s going to call it – to show up every day to organize you and your similarly-shaped neighbors into ranks, for hour-long forced marches.

You may think DrRich exaggerates. DrRich hopes so, too. But he’s not sure.

In any case, for those among his readers who do not want any constitutional challenge of the new healthcare law to succeed, DrRich has good news. It won’t.

DrRich has come to this conclusion after reading the section of the law that deals with the individual mandate. This section, “Subtitle F – Shared Responsibility For Health Care,” is carefully designed to defeat any constitutional challenge.

The meat of Subtitle F is contained in one sentence (Section 5000A), to wit: “An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.” This sentence takes up about 20% of one page. Most of the remaining 42.8 pages of Subtitle F creates a protective shell against constitutional challenge. It does this in two ways.

The first protection against a constitutional challenge is the more obvious. In fact, before we ever get to the individual mandate itself, we are treated to five pages that detail the multitude of ways in which “individual responsibility” in healthcare (i.e., the mandate to buy insurance) “is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).” In other words, the individual mandate is wrapped by a formal “finding of Congress” that this mandate is subject to the Commerce Clause of the U.S. Constitution.

DrRich is not enough of a legal scholar to understand whether the five pages of justification that follow (the “paragraph 2,” referred to above) are sufficiently compelling to actually invoke the Commerce Clause. To him, it all sounds like an “ends justifies the means” argument, one that would be equally applicable if Congress decided it would benefit the general welfare to mandate that people purchase all their cars from Government Motors. But whether or not the supportive language itself proves compelling to the courts, it seems very unlikely to DrRich that the Supreme Court would overturn a formal “finding of Congress,” as regards the applicability of a provision of Congress to the Commerce Clause.

But this first protection against a constitutional challenge only covers the first five of the 43 pages of Subtitle F. Most of the remaining 38 pages establishes the second protection. This one is more subtle than the first, but, DrRich thinks, it will be the more difficult one to overcome.

That remaining portion of Subtitle F deals largely with the penalties to which individuals would be subject if they failed to comply with the mandate to buy health insurance. It describes in detail how the mandate is to be complied with, how compliance is to be documented, and how the mandate is to be enforced. This long section of Subtitle F reads like tax law, like IRS code. As well it should. For, what it establishes is that the individual mandate is actually a tax, that is treated like any other tax in its documentation, collection, and enforcement, and indeed, that the IRS will be running the whole show.

If DrRich were defending the individual mandate before the Supreme Court, here is what he would say.

“Your Honors (and you other Justices, too), even if you find that the Commerce Clause is not applicable here (a finding, I respectfully submit, which would create a Constitutional crisis, since Congress has issued its own formal finding to the contrary), you must let this provision stand for an even more compelling reason, which is: This is not really an individual mandate to purchase health insurance or any other product, as our opponents claim. It is, in fact, simply a tax, like any other tax.

It is a tax. A healthcare tax. It is a tax to support healthcare in the United States, payable to the U.S. Government on Form 1040, administered and collected entirely by the Internal Revenue Service. It is not in any way fundamentally different from the Medicare and Medicaid taxes, which also support healthcare services for our citizens, which also appear on Form 1040, and which are also administered and collected entirely by the IRS.

Your Honors, simply look at the language of Subtitle F. After a modest amount of palaver to convince Your Honors that the Commerce Clause applies (and, I remind you, it does), the last 38 pages of this Subtitle is tax law. I mean, really, just try to read it. Can any of you understand it? Neither can I. It’s IRS tax code, plain and simple.

The only difference between this tax and any other federal tax is that Congress, in its wisdom and magnanimity, gives the individual citizen the ability to opt out, to not have to pay it, simply by documenting that they have purchased health insurance. That is, if the citizen chooses to buy health insurance – which, we must all admit, would be a wise decision from that individual’s point of view, as well as a benefit to society – the IRS will forgive the new healthcare tax altogether.

Where is the mandate here? Nowhere in Subtitle F does the word “mandate” appear. Rather, Subtitle F refers to “shared responsibility.” Individuals should feel responsible to do their part for society as a whole, and this Subtitle encourages them to act on that responsibility. They can do so by paying the new healthcare tax. Or, if they choose, they can do so by making sure they and their families are covered by health insurance. To be sure, Congress’ intent was that the large majority of citizens would choose the latter. But for all that, it is in the end the individual’s choice.”

As much as DrRich wishes otherwise, the individual mandate in the new healthcare law has been written in such a way as to almost certainly turn aside any challenges based on its constitutionality.

So, ladies, form your ranks and start marching that fat off. Hep-two-three-four.

DrRich is not smart enough to predict what specific bribes, threats or subversive parliamentary maneuvering will finally win passage of the President’s healthcare reform. However it comes about, DrRich thinks the result will be bad.

DrRich arrived at this opinion through a long process, lasting many years, that changed his thinking on the proper role of our government in our daily lives. One key event within this long process, which he related in his book, first opened DrRich’s eyes regarding the essential benignity of our government as it administers its assumed role as guardian of the people’s healthcare.

DrRich reproduces this vignette here:

One afternoon in June of 1994, I was summoned to a meeting by a vice president of the hospital for which I worked at the time. Meetings, especially unannounced ones, are the bane of employed physicians; but this one, I was led to understand, was mandatory.

I found the meeting room filled with high-ranking hospital administrators, hospital attorneys, and my clinical chairman. A gathering of luminaries such as these, especially on short notice, was decidedly rare. As I walked into the room all eyes were on me. I knew all these people; they’d been my friends and colleagues for years. We’d been fighting the healthcare wars side by side. But now they studied me as if seeing me for the first time.

“Who died?” I asked, just to break the ice.

“To be determined,” responded one of the lawyers.

They got right down to business. The chief hospital attorney explained: The federal government, in the guise of the Office of the Inspector General (OIG), had launched a major investigation of allegedly improper Medicare billing practices related to the use of investigational implantable cardioverter defibrillators (ICDs) in the late 1980s. This investigation, I was told, had begun as a whistleblower law suit out on the west coast, and the feds were now expanding their inquiry. The OIG had just subpoenaed records from approximately 120 of the largest hospitals in the country that implanted ICDs. We were one of the 120.

Now I understood why I was here. As Chief of Cardiac Electrophysiology, research with the ICD was one of the major endeavors of my career. The ICD is a device that is designed to prevent sudden death in patients whose cardiac disease makes them susceptible to such an event. Once implanted, the ICD recognizes the sudden, lethal heart rhythm disturbances that cause nearly instant death, and automatically delivers a shock to the heart to restore it to a normal rhythm. It is a remarkably effective device, and was obviously so from the very beginning. Seldom, in fact, has a more dramatically effective life-saving therapy ever been devised for any illness or disease. For this reason, as long as I had access to these devices I (and most electrophysiologists), felt morally obligated to offer them to any eligible patients who were at high risk for sudden death.

So now I understood why I had been summoned to the meeting. What I didn’t understand was why the Feds thought we’d done anything wrong.

“We shouldn’t have any problems there,” I protested. “You’ll recall that we looked into the legality of billing for ICDs back in ’87 when I first started working here. And Medicare said it was okay.” While I was an employed physician (and so the hospital handled all the billing for my services), I’d had enough concern about billing Medicare for investigational devices that I’d insisted the hospital get clarification from our Medicare Intermediary (the local agent and representative for Medicare) on the matter.

One of the attorneys answered. “That’s right. The Medicare Intermediary indicated at the time that there was nothing illegal about billing for the ICDs, but couldn’t guarantee they’d pay for them. As it turns out, they’ve paid for each one we’ve implanted, and never questioned our using them.”

“Then what’s the problem?”

“Medicare now says we’ve been in violation by sending the bills,” the lawyer replied. “There’s apparently an obscure instruction in the Intermediary’s guidebook that prohibits billing for some investigational devices.”

“But we got clearance from the Intermediary,” I protested.

“And that’s the defense we’ll take. The Intermediary itself didn’t know about this instruction. But unfortunately, Medicare operates a little like the IRS. If you call the IRS with a tax question and they give you bad advice, it’s your fault if you follow that advice. The fact that the Medicare people were unaware of their own rules, and apparently told us the wrong thing, doesn’t absolve us.”

“So what’s the worst case scenario?” someone asked. “That we’ll have to pay all the money back?”

“The monetary penalties are much worse than that,” intoned the CFO. “We’re looking at over 100 investigational ICDs that the good doctor here has implanted,” he said, glaring at me. “And at about $25,000 each, that’s a pretty penny right there. But the Feds are also talking about a $10,000 fine per incident, plus triple damages, so we’re really looking at several tens of millions of dollars we can’t afford. What’s worse, the fact that the OIG joined the whistleblower’s actions suggests that they’re going to claim we intentionally violated Medicare regs – which could mean jail time.” He was looking at me again when he said “jail.”

“Don’t worry,” a vice-president said to me sympathetically. “We’re all in this together. We’ll help you as much as we can.”

“What do you mean, you’ll help me?” I shot back. “I just work here. You do all the billing, keep everything you collect, and pay me a paltry salary.”

“Like I said, we’re all in this together. But those bills do go out under your name, Dr. Fogoros. As far as Medicare is concerned, they’re your bills.” As I’ve since learned, when the feds begin pointing their fickle finger, it’s customary for everybody to dive for cover.

For the next two years my life was plagued by a series of complex machinations – legal probes and parries – made in response to the Feds’ investigation of our supposed “fraudulent” submission of bills. I won’t bore you with the details – I’ll just hit a few highlights.

First, my hospital threw in with two dozen other large hospitals from all over the U.S. that were also affected by the OIG’s subpoena, and together we hired a fancy inside-the-beltway law firm that specialized in healthcare law. These attorneys ultimately determined that the obscure regulation the OIG was invoking against us had itself been illegally promulgated, and therefore should not be enforceable. Accordingly, our hospitals sued Donna Shalala, Secretary of Health and Human Services (HHS) in federal court to prevent her from enforcing this obscure, previously unknown, and (we held) illegal rule. “We have maybe a 50-50 chance of winning this suit,” I was told by one of our attorneys, “but it won’t be settled for years.”

While all this was going on, the subpoenaed hospitals also lobbied Congress to act on the essential unfairness of it all. “Look,” the hospitals said, “we’ve got one agency of the federal government (Medicare) coming after us for doing research that had been duly approved by another agency of the federal government, the Food and Drug Administration (FDA). We need laws to make the Feds behave consistently. When the FDA approves clinical research, Medicare should allow patients to avail themselves of that approved research.” Finally, in November of 1995, Congress passed just such a law. “So we’ve won!” I exulted when the hospital attorney called me with the good news. “Not exactly,” was the reply, “The OIG prevailed on Congress not to make the law retroactive. So the OIG is still coming after us for what they say we did in the 1980s.”

Then, in January of 1996, the Feds launched a new attack. Senator Roth, Chair of the Senate Finance Committee, decided it would be in somebody’s best interest to have a showcase hearing, highlighting the grievous crimes against Medicare that are being promulgated by avaricious physicians and institutions like me and mine. So the Permanent Subcommittee on Investigations sent subpoenas to the CEOs of several hospitals from the OIG’s list of 120, mandating that they appear before that committee on Valentines Day (i.e., heart day) to answer questions regarding the allegations that we’d committed Medicare fraud in our use of the ICD. It was to be a real circus – it was to be covered on C-SPAN, with major networks in attendance and lots of national publicity. The works.

Immediately, there was a mad rush to have the subpoenas quashed. All the hospitals from states whose Senators were members of the Finance Committee managed to be excused from appearing. At the end of the day, only four hospitals remained. Mine was one.

I was sure my career had ended. My family, friends, patients and colleagues were about to see the CEO of my hospital appearing before a hostile Senate Investigational Committee answering questions on the Medicare fraud that I supposedly had committed. I knew it didn’t matter that I hadn’t done anything wrong. Truth is only a compilation of some facts, whereas perception is everything.

I spent two days in Washington helping the fancy beltway lawyers prepare our CEO for his testimony. I failed miserably in my emotional pitch to be allowed to testify in his stead (the CEO had been subpoenaed, not me; and besides, anyone who seemed eager to testify before Congress must be crazy enough to get us in trouble). But at least I managed to convince the CEO that we should take a hard line with the subcommittee. After all, we had truth, righteousness, ethics, and possibly even the law on our side. We shouldn’t allow ourselves to be intimidated.

Each witness was to be permitted to read a statement into the record before the questioning began. Our attorneys had prepared a 10-page statement that was vague, wishy-washy, filled with legalese, and as nearly as I could tell, didn’t deny wrongdoing as much as it promised we’d be more careful next time.

So I prevailed on the CEO to tear up this lawyered-up document and instead use a one page statement that I wrote for him, saying, in essence: 1) We implanted investigational ICDs in Medicare patients because they were at high risk of dying without them, and to withhold such life-saving devices when they were available to us would have been unethical and would have constituted malpractice. 2) Before implanting the investigational ICDs, approval for their use was obtained through the FDA. 3) Before billing for the investigational ICDs we asked for and received clearance to do so from our Medicare Intermediary. 4) The records and documents we sent Medicare in support of our billing for these ICDs clearly indicated that the devices were investigational, and yet Medicare reimbursed us each time, over a period of several years and without questioning our actions or our bills. 5) The rule Medicare is now invoking was unknown to us during this period of time, and also, apparently, was unknown to the Medicare Intermediary. 6) In any case, as we have asserted in federal court, that regulation was illegally promulgated, and is therefore not a legal rule. 7) Congress has agreed that regulation to have been at least an ill-advised one, as evidenced by the fact that Congress recently passed legislation that now renders that regulation illegal, whatever its previous legality. 8] If they now assert that our actions constitute fraud, then the message the OIG, Medicare and the Senate subcommittee is sending to the public is that doctors and hospitals are expected to discriminate against the elderly, and will be called to task by the federal government if they refuse to do so. 9) Thank you for your attention.

The hearing was indeed quite a show. The whistleblower himself was the first witness, and he entered the chamber wearing a hood to hide his face, sat behind a screen, and spoke with his voice electronically distorted. This was the first time in history, I was told, that a witness had appeared before Congress disguised in this way, except in hearings featuring Mafia turncoats, drug lords, and the like. The implication, I presume, was that I and my fellow cardiac electrophysiologists were no less evil or potentially violent than other, more famous sorts of felons; and that if we learned this guy’s identity his life wouldn’t be worth a nickel.

Then it was us perpetrators’ turn to testify. The CEOs of the other three subpoenaed hospitals, after reading their lengthy, lawyerly and seemingly contrite statements into the record, were grilled mercilessly by the Senators of the subcommittee. Our CEO was the last witness. Once he read our brief but much more aggressive statement, the Senators seemed not to have any substantial questions for him. His testimony was over almost before it had started. Our hard line had paid off.

One more blessing occurred on that day. Somebody apparently found some Whitewater documents that weren’t supposed to have existed, so ten minutes before the hearing, C-SPAN pulled out and went running down the hall to televise the Whitewater doings. All the other news media went with them. Our hearing, despite the big build-up, the dramatically disguised whistleblower, and the fact that it was Valentine’s Day, barely made the news. The lack of national news exposure (and as a result, the lack of local news coverage) spared my reputation and that of my hospital.

Then finally, later in 1996, a federal judge ruled in our favor in our suit against HHS – the regulation Medicare was invoking, the judge ruled, had indeed been illegally promulgated. The OIG still didn’t give up, but in the end offered a settlement deal to the hospital for a mere million or two (which, by this time, was less than we had already spent defending ourselves), and nobody would have to admit to wrongdoing or go to jail or have a criminal record.

DrRich is not complaining. This episode could have turned out a lot worse. And the whole ordeal provided him with enough amusing anecdotes to last a lifetime. But having the Feds coming after him for more than two years was truly an eye-opening experience.

As DrRich sees it, the rightness of his actions seemed completely obvious. He had used those ICDs because his high-risk patients needed them, and from every indication their usage was legal and proper. But, in the service of his patients he had failed to discover a vague, obscure and difficult-to-interpret rule that existed in the Medicare Intermediary’s guidebook (a guidebook to which he had no access). As a result DrRich had been caught up in the Fed’s great anti-fraud initiative.

For over two years DrRich could never be sure of what was going to happen to him. There were periods of days at a time, usually just after another round of legal punches and counter-punches, when there was little else he could think of. (Would he lose his job, his career, his reputation, all his worldly possessions – would he go to jail?) During those times DrRich was of little use to anybody – colleagues, family or patients.

Of course, in the end it all turned out just fine – but the reason for the favorable outcome wasn’t that the Feds finally agreed that DrRich’s actions had been appropriate and non-fraudulent. It was because his lawyers had found a legal technicality in the Fed’s own actions. Had it not been for this entirely fortuitous discovery, who knows what might have happened?

So DrRich has seen a side of the Feds that most doctors have not, and he is willing to admit to a more robust paranoia on the subject than most would have at this moment. The way it looks from here, the government – at least sometimes – is willing to go to great lengths to prove just how rife with fraud is our healthcare system, and, once the Feds set their sights on an alleged perpetrator, they are pleased go to equally great lengths to bring that supposed perpetrator down. At least sometimes they’re willing to base their prosecution on bad rules that are poorly written, illegally promulgated, and hidden away in obscure manuals; they’re willing to ignore the fact that the alleged perp had relied on advice from the Feds’ own agents before proceeding; they’re willing to summon that perp before a televised, circus-like inquisition to be publicly humiliated for actions that, just a few months earlier, they themselves had passed explicit laws to endorse; and they’re willing, when all legal justifications for their persecutions have at last been taken away, to make a final demand, that some might consider extortionate, for a cash payment before they’ll go away.

At least, that’s how it looks from here.

It is not DrRich’s position that the Feds have been engaging in an unmitigated orgy of illegitimate anti-fraud activities over the past dozen years or more. He is sure they have not. Indeed, most of the anti-fraud activities the Feds have undertaken have undoubtedly been legitimate and useful. Furthermore, DrRich fully understands that any get-tough government initiative – whether it be anti-fraud or anti-terror – has got to have teeth, and that it is natural if regrettable that occasionally, a few innocents will be ensnared in such efforts. DrRich admits the possibility that his frightening experience may represent nothing more than the collateral damage that will naturally happen whenever the sovereign power finds it necessary to wield its great hammer in the overriding interest of the public good.

But forgive DrRich if he believes it is more likely that the experience he has just related represents instead an early glimpse into the government’s methods of intimidating and controlling doctors who, without these kinds of necessary checks, will, in caring for their patients, simply keep doing whatever they’d like with the government’s money. DrRich happens to believe that the utter unpredictability, arbitrariness, doggedness and seeming absurdity of the government’s actions in his own case was not accidental. These techniques are essential to the Feds’ goal of keeping their prey (i.e., physicians) intimidated, completely off balance, and in their thrall.

As evil as we all know the health insurance industry to be, DrRich (and any physician who knows anything about it) would much rather attempt to appeal to/defy/maneuver against/manipulate private insurers for the benefit of their patients (since the worst these entities can do is withhold payment), than do anything whatever – either for the patient’s benefit or for any other reason – that would risk engendering the enmity of the great, slavering, merciless sovereign authority.

Just a thought, as we embark on our new government-controlled healthcare system.

In his past few posts, DrRich has offered a substantive criticism of the new code of medical ethics which has now been formally adopted by over 120 physicians’ organizations across the globe. (See here, here and here.) Fundamentally, the New Ethics abrogates the physician’s classic obligation to always place the welfare of their individual patients first, by adding to it a new and competing ethical obligation (called Social Justice), which requires doctors to work toward “the fair distribution of healthcare resources.”

The New Ethics was explicitly born of the frustration felt by physicians as a result of the multitude of coercions the payers have thought up to force them to place the needs of the payers (the proxy for “society”), ahead of the needs of their patients. Thanks to the New Ethics, doctors can now bend to this coercion without violating their ethical standards.

Coercion by the payers was, of course, quite effective even before the New Ethics made capitulation ethical. This is because the third party payers – both private insurers and the government – have long had a stranglehold on the individual physician’s professional viability. Nonetheless, the fact that the New Ethics now formally divides the physician’s ethical obligations between their patients and society has very practical implications. By eliminating the remaining (relatively low) hurdle of ethical nicety, the New Ethics clears the way for even more sophisticated, more “official,” and more enforceable methods for achieving bedside rationing. (We have even seen the phenomenon, DrRich submits, of professional organizations going along with – and even assisting with – the development and implementation of such methodologies.)

As DrRich has described before, it is the primary care physicians who, so far, have borne the brunt of payers’ efforts to force bedside healthcare rationing. And to the very great credit of PCPs, despite the New Ethics aimed specifically at “curing” their sense of guilt and frustration, a majority of them remain very disturbed by the increasing pressure to make the needs of their patients their secondary concern.

Indeed, if anything, their frustration has grown. In the past, when they were torn between laying out an expensive but likely beneficial medical option for a patient, and not offering it because doing so would anger (say) the government, they could at least rely on classic medical ethics to back them up if they chose the less expedient path. Today, they have ethics as well as expediency pushing them, in such a case, to remain silent about that more expensive option.

To many PCPs with a strong sense of obligation to their patients, the coercive nature of the payers, combined with new ethical standards that virtually obligate them to give in to the coercion, have made modern primary care medicine a nearly untenable proposition.

Thus has the New Ethics rendered the practice of retainer medicine a matter of transcendent importance.

DrRich here uses the term “retainer medicine” as shorthand for any practice arrangement in which the doctor is paid directly by the patient, and not by third party payers. In some of these arrangements, patients actually do pay their physician a retainer fee of a few hundred to several thousand dollars a year. Such formal retainer arrangements – often called “boutique” or “concierge” practices – first began to pop up a decade or so ago. More recently, practices have begun appearing in which there is no actual retainer fee, but instead, patients pay their doctors the same way they pay their plumbers – on a fixed payment schedule according to the time the doctor spends with them. These pay-as-you-go practices generally are inexpensive enough to be affordable to any family that can afford cable television, or cell phone service.

Many retainer practices also provide amenities you often don’t get when your doctor is paid by Medicare or an insurer, including access to the physician’s cell phone, e-mail correspondence, same-day appointments, and plenty of face time during appointments. But whatever the specifics of a particular practice may be, the key that defines “retainer medicine” (as DrRich is using the term here) is that the doctor works for the patient, and nobody else.

Retainer medicine has been under steady attack, from the moment it first appeared, as being elitist, unethical, and divisive. The argument goes: While retainer medicine may be good for individual selfish doctors, and individual wealthy patients, this style of practice threatens to do much harm to the greater good. Critics maintain that retainer medicine threatens to create a two-tiered healthcare system (one for the wealthy and one for the poor). Plus, they say, if any substantial number of physicians were to adopt this odious new style of practice, there wouldn’t be enough PCPs to go around. Many critics have even called for making retainer practices illegal, and some states have already taken action to do so. The rationale for banning retainer medicine, boiled down, is: It is bad for doctors, patients and the public good.

To DrRich, the vociferous objections being raised against retainer medicine strongly suggest something deeper. DrRich believes that critics would simply find it far too “inconvenient” to have a bunch of wild retainer practitioners running around, disclosing to patients ALL their healthcare options, when the more well-behaved doctors are disclosing to patients only the healthcare options approved by government-assembled panels of experts. Retainer practitioners, in other words, will make covert rationing much more difficult. However, this is not a point of view which critics have been willing to express publicly, so DrRich will let it lay.

But even the publicly-expressed objections to retainer medicine – the notion that it is bad for doctors, patients, and the public good – are wrongheaded. Indeed, thanks particularly to the New Ethics, the opposite is true. Retainer medicine is perhaps the only pathway toward rescuing patients and the medical profession – and thus for best serving the public good. For PCPs to continue practicing under what has become the “traditional,” third-party-payment system is, in fact, the far greater threat.

It has become impossible – both in practical terms and now, in ethical terms – for “traditional” PCPs to fight the pervasive pressures being visited upon them to ration healthcare at the bedside. To escape this fate, they must either become specialists, deep-sea fishermen – or a retainer practitioner. That is, PCPs must choose between remaining in a system that ruthlessly pushes them toward a practice of bedside rationing (which many find an unethical, demeaning, and harmful style of practice), or, one way or another, getting out of traditional primary care medicine altogether.

To argue that retainer medicine is unethical is completely backwards. Retainer medicine restores the professional integrity of medical practice, and re-establishes a doctor-patient relationship in which the physician can again assume the duty of a true advocate. It is perhaps the only remaining means to restore the foundational (but now officially obsolete) medical ethic of always placing the patient first.

To argue that retainer medicine somehow threatens patients completely ignores reality. Retainer medicine may be the only remaining viable pathway toward restoring protections that patients are supposed to have when facing a healthcare system that is utterly bent on avoiding spending money on them.

To argue that retainer practitioners are creating a two-tiered healthcare system is ridiculous on its face, in a society that gives mere lip service (though, to be sure, plenty of it) to the problem of 47 million uninsured, and in which physicians already cannot afford to care for patients on Medicaid (or increasingly, on Medicare), because they lose money each time such a patient walks in the door.

To argue that retainer medicine will create a subpopulation of elites (because it provides a mechanism by which some individual patients can escape the deadly obstacles that have been intentionally laid before them), is as absurd as arguing that George Washington was wrong to free his slaves upon his death (or even that New York State was wrong to abolish slavery at about the same time), because it created a subpopulation of “elite” (i.e., free) African Americans; that until all slaves were freed, no slaves should have been freed. Rather, freeing at least some slaves – and forthrightly stating why it needed to be done (see: Declaration of Independence) – was not only ethical, but also showed what was possible, and over time created an expectation that eventually could no longer be ignored.

Finally, we should recognize that any innovation that can potentially spare patients from some of the harm the healthcare system has in store for them will necessarily be applicable to only a minority of patients at first. That’s how disruptive processes work. They begin as niche products or services, attractive only to a few high-end users; too expensive or too marginal for the vast majority; ignored, ridiculed or castigated by current providers and by most experts. But if at their core they’re offering something fundamentally useful, they will slowly demonstrate their worth – and eventually all the potential users will see the light, and demand for the product will become explosive. When that happens, the means are found to make the new product affordable and available to meet the demand – often by making significant “adjustments” to the original concept, that nonetheless preserve the core benefits. And when that happens, the traditional providers (who never saw it coming) are suddenly out of business.

It may not be that retainer-style medicine plays the personal computer to the traditional healthcare system’s mainframe. But it is inarguable that what retainer medicine offers to patients – at its core – is every bit as vital and every bit as indispensable. And if a critical mass of the public can be made to understand what is really being offered here, there will be no holding it back.

There never has been anything even slightly unethical about retainer medicine. The arrangement by which patients pay their doctors directly was, after all, how Marcus Welby practiced medicine, and how nearly every PCP practiced until the 1970s.

The problem began when third party payers were interposed between doctors and their patients, and it became progressively more difficult for doctors to honor their primary ethical obligations. The New Ethics has escalated the problem, however, from one where basic ethical precepts were merely being violated, to one where the precepts themselves were abandoned.

And by so doing, the New Ethics has elevated retainer medicine from something that was merely an ethically justifiable curiosity, to the last refuge for classic medical ethics, and the last best hope for patients, the profession of medicine, and the doctor-patient relationship.

Last week, DrRich noted that the Covert Rationing Blog and the ACP Advocate Blog were named as co-finalists in 2009 Medical Weblog Award Competition, in the category of Best Health Policy/Ethics Blog. (Voting continues through Feb. 14.) DrRich, ever the opportunist, latched on to this fortuitous occasion to issue a challenge to Bob Doherty, author of the ACP Advocate blog, to engage in a debate over that very topic – medical ethics. He made this audacious challenge because the ACP is a chief signatory of a new code of “medical ethics for a new millennium,” formally promulgated in 2002 by an international group of medical professional organizations (a grouping DrRich has called – for convenience sake only – the Millennialists). And DrRich has taken great exception to this New Ethics, which, he asserts, does great damage to the doctor-patient relationship and to the medical profession. (DrRich details his objection to the New Ethics here, and describes the right way to do medical ethics here.)

A few days ago Mr. Doherty (who is also the ACP’s Senior Vice President of Governmental Affairs and Public Policy), graciously agreed to engage in this discussion, and promised to do so after consulting with the ACP’s Committee on Ethics, Professionalism, and Human Rights.

DrRich had hoped that Mr. Doherty would reply with a post on his ACP blog, which (since it likely has a vastly greater readership than the CRB), would more effectively give this topic some much-needed airing – and in particular, might engage some of the ACP’s membership (specialists in internal medicine) in this important discussion. DrRich was disappointed, then, when the reply came today in the form of a comment, which was tacked on to a long queue of reader’s comments at the end of DrRich’s posting.

DrRich was also very disappointed by the content of the reply which, fundamentally, was: This is a non-issue, and even if it was an issue, it’s now a settled issue. (So go away.)

Because he fears that his readers may not find the ACP’s response (buried as it is), DrRich will post it here in its entirety. But first he will very briefly summarize his complaint against the New Ethics promulgated by the ACP and other Millennialists. The New Ethics takes classical medical ethics (which obligates doctors to always place the welfare of their individual patients first) and adds on to it a new ethical obligation, called Social Justice, which obligates doctors to work toward “the fair distribution of healthcare resources.” This new obligation (which is to society) will inherently conflict, at least some of the time, with the physician’s traditional obligation to the individual patient. So, under the New Ethics, the doctor’s loyalty is now officially divided. DrRich asserts that this divided loyalty (which is now declared to be entirely ethical) leaves the patient in a dangerous position, and breaks the profession of medicine.

In the ACP’s response Mr. Doherty begins: “I asked Dr. Virginia Hood, chair of ACP’s Committee on Ethics, Professionalism, and Human Rights, to respond to Dr. Rich’s post. Her reply is below:”

Much ado?

We are surprised to see the comments about ACP and medical ethics. We urge readers to read the actual text of the ACP Ethics Manual (the College’s Code of Ethics) and the Professionalism Charter, which the College’s Foundation helped develop. Both say that social justice is a consideration in medical ethics, but the physician’s primary responsibility is to his or her patient. Resource allocation decisions are policy decisions and are most appropriately made at the system level, not at the bedside. The Ethics Manual discusses at length the clinician’s primary role as an advocate for individual patients. But it also notes the duty to practice effective health care and use resources responsibly, which are not incompatible with being a patient advocate. As the Manual notes, physicians should not overtest or otherwise overuse services:

Physicians have a responsibility to practice effective and efficient health care and to use health care resources responsibly. Parsimonious care that utilizes the most efficient means to effectively diagnose a condition and treat a patient respects the need to use resources wisely and to help ensure that resources are equitably available [i].

This is nothing new. Indeed using “effective and efficient health care and health care resources responsibly” for all patients is one way to minimize rationing as the result of an over costly system. The Manual also says that physicians and their professional societies should work toward ensuring access to health care for all and the elimination of discrimination, and deficiencies in availability and quality, in health care services. Likewise, the Charter on Medical Professionalism endorsed by ACP and 120 other medical organizations in the USA and internationally, states that professionalism involves commitments to improving quality of care, improving access to care, eliminating discrimination in health care, and yes, to a just distribution of finite resources. But the Charter explains the commitment to a fair distribution of finite resources as follows:

While meeting the needs of individual patients, physicians are required to provide health care that is based on the wise and cost-effective management of limited clinical resources. They should be committed to working with other physicians, hospitals, and payers to develop guidelines for cost-effective care. The physician’s professional responsibility for appropriate allocation of resources requires scrupulous avoidance of superfluous tests and procedures. The provision of unnecessary services not only exposes one’s patients to avoidable harm and expense but also diminishes the resources available for others [ii].

The patient-physician relationship and our medical ethics are the soul of medicine. The blog commentators are correct– it is important that we get it right.

Thank you.

Virginia Hood, MD, FACP
Chair, American College of Physicians Ethics, Professionalism and Human Rights Committee

As much as DrRich may feel he has been condescended to here (as if the ACP has found a fly buzzing around its head and has attempted to swat it away), and recognizing that the ACP has decided not to engage in a give-and-take (which, of course is their prerogative), but rather, has responded with a brush-off statement which they have chosen to bury in the comments section of DrRich’s obscure blog (which is also their prerogative), DrRich will attempt to reply as politely and as analytically as possible. (He does, however, sincerely hope that Mr. Doherty – who really seems like a good person and is an excellent writer – will not be called to the woodshed for obligating an august Ethics Committee Chairperson from this prestigious organization to issue a formal response to an annoying blogger such as himself.)

Dr. Hood’s artful (and dismissive, it seems to DrRich) statement can be fairly summarized thusly: After beginning with the implication that DrRich is making much ado (about nothing), and that she is surprised that anyone would dissent from ACP’s New Ethics, she says that the New Ethics does not entail the problem that DrRich alleges; indeed, there really is nothing new about it. Of course patients come first. (Just study the various documents the ACP has published on this point.) Cost-effective and efficient care is a part of good medicine, and always has been. What we mean by a fair distribution of finite resources is to practice medicine wisely, so as not to waste resources and not to expose patients to the risk of medical services they do not need. The legitimacy of the New Ethics is supported by the fact that it has been formally adopted by 120 medical organizations internationally (which to DrRich means that when you go to a doctor anywhere, this is the code of ethics under which they are now officially practicing).

There is a lot in her statement DrRich could comment on, but he does not want to bore his readers with a lengthy parsing of this finely crafted response. Rather, he will just talk about its main point.

Fundamentally, Dr. Hood is denying that there’s any problem. There’s no conflict between “the fair distribution of healthcare resources” and doing what’s best for individual patients – and furthermore, she’s surprised anyone would think so.

DrRich does not accuse her of sophistry. Perhaps she is just deceived.

The fact that there are huge conflicts between providing individuals with all the healthcare that would likely be useful to them, and the inability of society to pay for such a thing, is the fundamental problem with the public funding of healthcare. We simply can’t afford to buy everybody all the healthcare that would likely benefit them. There’s not enough money in the world to do that.

Consider just a few of the examples DrRich has discussed here over the years. Implantable defibrillators have been shown to significantly improve the survival of a substantial minority of patients who have heart disease, and indeed guidelines issued by cardiologists’ professional organizations indicate that defibrillators ought to be implanted at a rate of about five times their current actual implant rate. But if doctors actually did that, it would cost Medicare an extra $7 – $8 billion each year. Then there’s the fact that if doctors used the statin drug Crestor in the way the very well-designed and compelling JUPITER trial says doctors should use it, we would be spending an extra $10 billion per year on Crestor. In a thousand ways, the “best” healthcare for the individual is very often not cheaper (or better for society) than less-good healthcare, and DrRich is impressed that Dr. Hood is willing to say that it is.

Dr. Hood would likely deal with this problem, and implies so, by devising “guidelines” that doctors would be ethically obligated to follow. Obviously, it is entirely possible to convert “guidelines” from just that (i.e., a set of guidelines which doctors ought to take into strong account when deciding what’s best for their individual patients) into a set of formal rules that must be followed, and which will then be enforced by federal regulators (and their posse of ethicists). Indeed, such “guidelines” might be one of the ways in which society imposes its own goals over those of individual patients. But that is not the same thing as insisting that individual patients (who often do not fit the “average” profile) will necessarily profit if doctors always follow the guidelines as a matter of policy, or of enforced expectations, or of “quality”.

(Further, as DrRich has pointed out, the rapidly developing paradigm in which “guidelines” are becoming inviolate rules has led competing organizations to rush to issue their own sets of competing guidelines, that best comport with their individual agendas. While this phenomenon of “guideline wars” is endlessly amusing, it may not always serve the best interests of doctors or their patients.)

And then there’s the problem that, no matter how you define “waste” or “inefficiency” or “unnecessary care,” there simply cannot be enough of it to account for the runaway healthcare inflation we’re seeing (as DrRich has shown here). A substantial proportion of this fiscally disastrous healthcare inflation must necessarily derive from the delivery of healthcare that is actually useful.

So the crux of Dr. Hood’s reply – that all the ACP is talking about when it mandates that doctors fairly distribute limited resources is that they ought to practice good medicine, and if they did that simple thing no useful therapy would need to be withheld from any individual patient – is absurd on its face.

DrRich would be less disturbed by Dr. Hood’s assertion if he really thought it was simply a misapprehension of the truth. And perhaps it is. After all, her statement reads as if she is truly surprised that anyone would think otherwise.

Perhaps Dr. Hood came to her high station within the ACP’s Ethics Committee very recently, and is unaware of the history of the new Professionalism Charter which advanced this New Ethics, or of the controversy that was raised by many critics at the time of its adoption, or indeed, of some of the language that was in its penultimate version (and that was likely removed to silence some of those critics). Indeed, she cannot be aware if it, since she is “surprised to see” that anyone is bothered by the Charter, and since she believes that questioning it is but “much ado.” But to anyone who knows a little of that history, Dr. Hood’s assertion that controversy over this Charter is a novel experience, or most especially, her assertion that this New Ethics is really “nothing new,” would come as a very great surprise indeed.

First, we should note, if the new Professionalism Charter was really “nothing new,” and was just a restatement of the physician’s traditional obligation to place the patient first, and if fairly distributing society’s resources really was just a matter of practicing good medicine, then there would have been no need for a new Charter of medical ethics in the first place. And certainly the need would not have been pressing. It would have served quite nicely instead to produce some sort of document reminding doctors that unneeded healthcare services expose their patients to unneeded risk, so (based on the traditional ethical precept of patient welfare), to remain ethical they must stop being wasteful. Certainly, this kind of wasteful medicine would not produce a need to redefine medical ethics.

But the new Charter’s very first sentence describes something more dire, more pressing, than can be explained by Dr. Hood’s benign assertions. It says, “Physicians today are experiencing frustration as changes in the health care delivery systems in virtually all industrialized countries threaten the very nature and values of medical professionalism.” So: the whole purpose of this new Charter, its entire impetus, was the frustration of physicians.

Frustration? What frustration is that? Interestingly, the document does not come right out and say it. The closest it comes to spelling it out is to say, “We share the view that medicine’s commitment to the patient is being challenged by external forces of change within our societies.”

But even though the document seems strangely reticent about spelling out which frustration produced the very impetus for its creation, we can rely on the fact that the document must be designed to cure this mysterious frustration (whatever it is), and that the only revolutionary change in the document is an addition to the code of medical ethics requiring physicians to work for “the fair distribution of healthcare resources.” We can only conclude that this new ethical obligation is meant as a cure for that foundational frustration, and that therefore this frustration must be that doctors are finding it impossible to meet their traditional ethical obligation to to place their patients’ needs first.

But, as it happens, we do not really have to resort to this sort of documentary detective work to parse out the purpose of the new Professionalism Charter. That purpose was quite open at the time this document was being developed – and it produced robust controversy that was certainly no secret. One can read about this controversy in many places, but for our purposes now (i.e., in replying to Dr. Hood’s assertion that there’s nothing new here, and that it is a matter of some astonishment that anyone would find the Physicians Charter controversial) it might be best to refer to one of the ACP’s own publications from that time.

An article in the July, 2001 ACP-ASIM Observer, which was entitled, “Charter on medical professionalism addresses issues of finite resources,” goes into some length about the controversy. And it is very plain that the objection many raised to the new Charter was precisely that which DrRich is raising now in his challenge to the ACP: that the New Ethics being espoused in the Professionalism Charter fundamentally and explicitly divides the loyalty of the physician between the patient’s needs and society’s needs. When one listens to the defenders of the new Charter (quoted extensively in the ACP-ASIM Observer article), one finds the unmistakable tones of utilitarianism: We have to change our ethical precepts, the argument goes, because that’s just the way the world works now.

This article also indicates that the draft of the Physicians Charter presented to ACP general membership at their annual meeting in 2001, a few months before the final version was finally published, was perhaps more forthcoming than the final version, regarding what it was really all about. For instance, this nearly-final version of the Charter specifically admonished physicians that they must “be aware that the decisions they make about individual patients have an impact on the resources available to others.” One can only assume that this sort of explicit language was taken out of that final version in response to the critics (who were many, and vocal) to soften the blow.

Indeed, the “softer” language of this strange final version (which has all the hallmarks of a heavily edited document, beginning as it does with a heartfelt cry against the frustrations being experienced by physicians, then neglecting to spell out what those frustrations are, and never explicitly saying which aspect of the document addresses those frustrations), is now possibly soft enough, if not read carefully, to allow defenders of the Professionalism Charter to get away with asserting (as Dr. Hood has done) that the New Ethics is really pretty much the same as the old ethics, and does not change anything. (So move along, move along.)

But the New Ethics changes everything.

DrRich is very sorry about this, and is especially sorry that the ACP’s Ethics Committee, and the other 120 physicians organizations that have adopted this New Ethics, insist they do not see a problem here. DrRich assumes by this response that the ACP has little interest in revisiting its new ethical stance, and further, is undoubtedly busily training today’s medical students that doing what’s best for society is the same as doing what’s best for the individual.

This is a theme, DrRich thinks, he’s heard a lot lately.

Patients who want a true advocate in their life-and-death encounters with the healthcare system, an advocate whose loyalty is not divided between them and a society that, with increasing desperation, wants not to spend its money on them, had better go out and hire their own. Your doctor will now find it officially unethical to serve that office him-or-herself.

And meanwhile, we can now be sure that the physicians organizations which are responsible for protecting the ethical foundation of the profession of medicine are quite satisfied with the job they are doing.