News and Analysis (March/April 1998)

Compiled by Medical Sentinel Editors
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News and Analysis
March/April 1998
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Kassebaum-Kennedy Law and Immunization Activities

An AAPS member has brought to our attention the fact that a portion of the Kassebaum-Kennedy law included in the administrative simplification provisions contained several sections having to do with immunization registries. The information was contained in Immunization News, a newsletter by the Pennsylvania Forum for Primary Health Care (PFPHC; Vol. 2, Issue 2, Summer 1997).
The newsletter list the following sections:
(1) Standards for electronic health information transactions. This section authorizes the Secretary of HHS to "adopt standards for electronic health information transactions...Providers and health plans will be required to use the standard 24 months after adoption." This provision is thought by PFPHC to be important because "having standards for data coding and transmission is essential to the success of National Immunization Program's (NIP) vision of a national, 'mosaic,' of interoperating local and state immunization registries."
(2) Unique health identifier. Furthermore, within 18 months the HHS Secretary must adopt standards providing for a standard unique health identifier (UHI) for each individual, employer, health plan, and health care provider for use in the health care system.
(3) Within 18 months, the HHS Secretary must select code sets for all critical data elements. This will "facilitate the development of computer-based patient records. Thus, immunization registries can contribute toward what could ultimately be more comprehensive clinical and preventive data bases."
(4) Privacy of health information. The recommendations will have procedures to "exercise those individual rights and the uses and disclosures of such information that should be 'authorized or required.' " [Emphasis added.] This provision is also deemed by PFPHC to be important because NIP will use this provision to avoid the problems associated with state laws intended to insure privacy which in the view of Cheryl Modica of the National Association of Community Health Centers, Inc., author of this information piece, "the state laws intended to insure privacy have presented barriers to immunization registries.
Within 4 years after studying these issues of administrative simplification, the National Committee on Vital and Health Statistics will make recommendations and legislative proposals to the Secretary in adoption of uniform data standards for patient medical record information and the electronic exchange of such information. This provision "moves the nation closer to the realization of computerized patient records and electronic transfer of health information that can be used to improve the health status of our community."
The AAPS member who obtained this information commented that "physicians will be forced to deal with these agencies. So, it is government controlled. A unique health identifier for each person? Obviously, this is to identify you to 'the system.' Outside the system, patients and physicians will be non-persons, neither able to receive nor provide health care.
Immunization records are merely the opening wedge. Once this takes effect, it will be the entire medical record, neatly coded, that becomes property of the system. And, once anyone knows your social security number, a number of items such as financial records, tax information, and all they wish to know about a person's finances will be available. Essentially, there will be no privacy."

More on Kassebaum-Kennedy and Fraud and Abuse

Gerry Mills, MBA, JD of Healthcare Consultants of America, Inc., commented how recent surveys show that "physicians worry most about managed care: it's compliance...simply staying out of trouble and avoiding any allegations of fraud and abuse." Among the tips he offers to physicians and their staff in how to comply with federal regulations include:
(1) A reminder that now the Kassebaum-Kennedy Bill...allows the federal government to intervene in physician's relation with all insurance/private payers, not just Medicare and Medicaid.
(2) You cannot plead ignorance - the old standard requires evidence of "intend to deceive." Under the new law, the physician may be considered in violation if he or she should have known of fraudulent claims. In other words, "the physician must be proactive in his/her awareness of billing and coding procedures."
(3) There are a lot of investigations presently being carried out because of increased funding provided by the Kassebaum-Kennedy law to help detect and prosecute fraud and abuse. Moreover, prosecution of physicians have provided a bonanza for prosecutors and are providing extra funding for more and more investigations.
Bowen and Phillips, certified public accountants of Tifton, Georgia, in their newsletter Prescriptions (Vol. 1, No. 3), prescribe a similar remedy: "Physicians beware! New fraud and abuse provisions prompt more scrutiny. Should physicians be concerned? Definitely! Physicians already have the Department of Justice knocking on their doors with notices of intent to investigate their practices. One CPA practitioner in the South had four physician practice clients receive notices in one week alone! Reports are popping up everywhere of investigations of physician practices of all sizes, not just the larger medical organizations. Many smaller physician practices will also be targeted as a result of additional funding for this program." Indeed, the authority of the Office of the Inspector General has been expanded to both public and private programs. And, as previously stated, the level of knowledge required for alleging a violation has also been expanded to include the phrase "should know." Physicians "not knowing" would be charged with "deliberate ignorance." As the Roman system of jurisprudence proclaimed, ignorantia juris neminem excusat.
These accountants correctly write that this new standard puts you as a physician at an additional risk in a number of situations. "For example, inadvertent or routine up-coding of a service is now subject to monetary penalty. If an employee is embezzling by filing false insurance claims, you may be subject to penalties since you 'should know' what is going on in your practice, and you should have controls in place to deter and detect such activities."
The Clinton Administration placed a high priority on health care fraud and abuse with "Operation Restore Trust" which started in 1995 investigating home health agencies, nursing homes, and medical equipment suppliers in various states including California, Florida, New York, Texas, and Illinois. Two years later, the program has not only paid for itself, but has recovered $200 million in fines, settlements, and criminal convictions. Not surprisingly, it has been expanded into Arizona, Colorado, Georgia, Louisiana, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania, Tennessee, Virginia, and Washington. The measure allows courts and the Inspector General's office to impose civil fines of up to $50,000 per violation. It also plans to crack down on abuses elsewhere in the health care industry including prohibitions of under-valuations of assets when hospitals and physician practices are sold. (Bowen and Phillips, Certified Public Accountants, P.O. Box 7650, Tifton, Georgia 31793. FAX (912) 382-3915.)

Private Contracting

In the court case Stewart v. Sullivan, five of AAPS physician Dr. Lois Copeland's patients sued the Secretary of Health and Human Services (HHS) and extracted a court ruling affirming that patients have the right to contract privately for services outside of the Medicare program when they [the patients] are enrolled in the Medicare program. The ruling and subsequent pronouncements by HHS has kept the issue unclear in the mind of many physicians - e.g., whether patients indeed have a right to contract privately with a physician of his/her choice on mutually agreeable terms.
When Judge Nicholas Politan handed down his opinion in 1992 in this case, he stated that he could find no clearly articulated policy to prevent patients from engaging in private contracting with their physicians outside of Medicare. Since then, a number of physicians have entered such contracts although HCFA bureaucrats and Medicare carriers assert that they are either illegal or not recognized by the government. Since 1994, the risk has been higher because Medicare technical amendments expanded Medicare regulations to "any Medicare eligible person" (as opposed to services where a claim had been made under Part B).
This year, Senator Jon Kyl (R-AZ), encouraged by AAPS, attempted to remedy the situation by authoring a simple bill guaranteeing the right to privately contract outside Medicare and without price controls. The bill was supported by a broad coalition of organizations including Americans for Tax Reform, The Seniors Coalition, Eagle Forum, The Family Research Council, and others. HCFA and its allies, vehemently opposed to senior Americans spending their own money on medical care, added last minute changes that turned the bill on its head. Instead of clearly allowing for private contracting in Medicare, the bill which takes effect in January 1998, restricts private contracting only "if an affidavit is filed and if the physician remains completely out of Medicare for two years, and if certain contractual wording is used, then private contracting is not prohibited." (AAPS News, October 1997.)

Gun-Owners Survey

A recent survey conducted by American Survival Guide Magazine (ASGM) and published in its December 1997 issue contradicts a previous gun ownership survey published in the June 12, 1996 issue of JAMA.
Dr. Paul Gallant, Chairman of the New York-based Committee of Law-Abiding Gun-Owners, and Dr. Joanne Eisen, President of the Association of Dentist for Accuracy in Scientific Media, write "The JAMA survey amounts to nothing more than pseudo-scientific support for more restrictive firearm laws." They point out that the JAMA authors' words reveal motives: "political prospects for stricter gun control legislation...Both gun-owners and non-owners express support for many specific gun control policies, including the recent Brady Act and the ban on semiautomatic assault weapons. In addition, the large majority favor stronger specific measures..."
Drs. Gallant and Eisen concede JAMA and ASGM were surveying different populations. The key to the JAMA survey is found in their own ASGM survey question #20: If asked by a pollster whether I owned firearms, I would be truthful: 29.6 percent disagreed/strongly disagreed and more revealing, question #21: If asked by a pollster how many firearms I own, I would be truthful: 61.4 percent disagreed/strongly disagreed.
So according to this survey, 29.6 percent would falsely deny owning a firearm.
Professor Gary Kleck, Florida State University School of Criminology, has noted in his book Point Blank: Guns and Violence in America (1991) that "One major flaw in survey-based estimates of the gun stock is that some respondents intentionally conceal their gun ownership."
Respondents admitting "indecision" about the number of guns owned is twice as great as those expressing "indecision" about firearm ownership.
The disparity between gun-owners admitting to firearm ownership, but not to the number owned, was noted in earlier studies by researcher James D. Wright and associates in Under the Gun: Weapons, Crime, and Violence in America (1983). Although these authors provided no explanation as to why people would more readily discuss gun ownership itself but not specific types of guns or numbers of them, Professor Kleck surmised two reasons: One, less specific questions are less intrusive. The other explanation was that "some gun-owners are worried that their responses could somehow be used later by government authorities to confiscate their guns after a gun ban was passed."
The authors conclude that "any survey [like in JAMA] in which the respondent feels he or she could somehow be identified, and in which there is the remotest possibility of serious repercussions resulting from one's answer, is probably not worth the paper it's written on." (American Survival Guide, December 1997)

Nagging Questions About the Oklahoma City Bombing

In his Samuel Francis Letter, the renown conservative and syndicated columnist (May 1997), writes that "the rationale for more state power, more police and less freedom is always that 'new threats' are emerging" that will threaten our security. And in this regard, he is supported by Representative Bob Barr (R-GA) who in The Washington Times was quoted as saying "There is a dangerous, almost cavalier attitude toward civil liberties, and personal freedom and privacy rights by this administration."
In another column, Mr. Francis recommends a Pulitzer Prize be given to The New American, a conservative, biweekly magazine for its outstanding coverage and continuing investigation of the Oklahoma City bombing.
And indeed, there are persisting, troublesome questions The New American has uncovered. Evidence that there is indeed a John Doe #2 (corroborated by several witnesses) who has never been brought to justice; that the government had prior knowledge of the bombing (corroborated by two government informants including Carol Howe, an undercover agent for the BATF); and that there are witnesses who, according to William F. Jasper of The New American (May 26, 1997) "reported seeing bomb squad vehicles and personnel around the [Alfred P.] Murrah Building an hour to an hour and a half before the bombing."
Moreover, The New American uncovered the presence of a German national, Andreas Strassmeir, who may have been a "shared asset" of the German and American governments to penetrate militias and neo-Nazi groups.
And, The New American has also reported a retired Air Force General Benton K. Partin, a demolition expert, supported by Dr. Samuel T. Cohen, renown nuclear physicist and inventor of the neutron bomb, who note that the damage inflicted in Oklahoma City could not have been the work of a single bomb in a Ryder truck. (The New American, June 9, 1997)

AMA Accreditation Monopoly Not In The Patients' Interest

The AMA's plans to begin a nationwide accreditation program for doctors should sound alarm bells. The power to accredit also means the power to discredit, plus the power to dictate the "standard of care" and define what is meant by "quality."
The AMA has very ambitious plans to inspect the workings of all private physicians' offices - passing judgment on personnel, record-keeping, adherence to "practice guidelines," and the location of the fire extinguisher.
One rationale for one-stop accreditation is to make things easier for managed care organizations and the doctors who contract with them. Now physicians are separately evaluated by every group they join. Centralizing that responsibility in the hands of the AMA raises many serious concerns.
1. The buying and selling of credentials is no more acceptable than buying and selling endorsements for commercial products. Both types of endorsements are made in the name of quality. But there will be vast sums of money to be made, creating tremendous potential for corruption.
2. There are unavoidable conflicts of interest in the proposal. The AMA is by no means a disinterested outside agency. No businessman would care to be subjected to accreditation by potential competitors. Nor would most lawyers want to have their livelihood dependent on a stamp of approval from the American Bar Association.
3. Who will draw up the practice guidelines? Could they not be unduly influenced by special interest groups? Managed care organizations that stand to gain by rationing expensive care already engage in "economic credentialing" of doctors. Pharmaceutical companies or medical device manufacturers could reap enormous profits from defining a certain new drug or device as the standard of care. Unscrupulous companies could attempt to apply influence at the AMA to wipe out their competition.
4. If an organization has the power to destroy a person's livelihood, then free expression of ideas is gravely endangered. There are neither constitutional nor statutory protections when the accrediting organization is private. Physicians who offend the agency - or threaten the privileged position of its constituents by offering more effective care to patients - could be blacklisted and have no effective recourse.
5. The process of undergoing site inspections and submitting applications every two years will become increasingly onerous and expensive, to the disadvantage of solo practitioners and small groups. This will intensify the pressures faced by physicians who try to maintain personal relationships with their patients and try to keep their administrative costs low.
6. There is no evidence that "practice guidelines" or on-site inspections work to improve patient care.
AAPS believes that the ultimate judge of medical care is the patient - and that the best way to assure quality is free competition, with patients free to choose from a large number and variety of physicians and treatments.
"The AMA accreditation proposal is another giant step toward the Prussianization of American medicine," states Dr. Jane Orient. "In Prussia, there was a Geheim Rath, or secret counsel, who decided what treatments were acceptable. Nobody dared to argue with him. As a result of this system, Prussia lost its preeminence in medicine. The same thing can happen here." (AAPS News Release, November 19, 1997)

AMA Reimbursement Figures

Three officers were paid more than $200,000 for their time in 1996.

Dr. Nancy Dickey Chairman - $258,790

Dr. Lonnie Bristow Immediate Past Pres. - $229,540

Dr. Daniel Johnson Jr. President - $221,970

Dr. Percy Wootton President-Elect - $168,720

Dr. Thomas Reardon Vice-Chairman - $147,929

Dr. Robert McAfee* Immediate Past President - $135,440

Dr. Yank Coble Jr. Trustee - $105,915

Dr. Randolph Smoak, Jr. Secretary-Treasurer - $ 99,087

Dr. Regina Benjamin Trustee - $ 91,716

Dr. Timothy Flaherty Trustee - $ 90,792

Dr. John Nelson Trustee - $ 90,405

Dr. Donald Lewers Trustee - $ 87,521

Dr. Richard Corlin Speaker - $ 85,875

Dr. William Jacott Trustee - $ 82,369

Dr. Palma Formica Trustee - $ 75,492

*Term ended in June 1996 Source: Physician's Weekly (07/21/97)

Financially, to AMA, Membership May Be Optional?

The AMA is in the black and its finances are the best it has been in 14 years. AMNews reports that "despite losses in membership revenue in 1996, the AMA had its best operating results in 14 years leaving the association with the highest reserve level in its history." Randolph D. Smoak, Jr., M.D., Chair of the AMA Finance Committee, credited a $21 million increase in operating revenue for the bright financial picture. "Advertising revenue jumped 14 percent last year, reaching $54 million, a $15 million increase over 1995." Other revenue sources that grew last year were book and product sales, which increased $1.6 million as well as royalties which grew $1.9 million primarily due to the AMA's data base licensing and credentialing programs. "In fact, every revenue category, except membership dues, increased," Dr. Smoak also noted. [Emphasis added.]
This good news should "continue to keep the AMA relevant for the physicians of 1997 and the future. Indeed, the AMA is projected to receive an $8.2 million gain in real estate sales. And will end 1997 with $5.9 million in the black...and robust reserve levels that should exceed $148 million in 1999."
Rumors have been circulating for several years that the AMA no longer needed members to remain financially afloat. And now, we have confirmation that this may be so. On October 17, 1997, the Chicago Tribune reported in relation to the Sunbeam deal-gone-sour that over 70 percent of the AMA revenues came from other sources other than membership...including real estate and the publication of coding books revised annually which are required for physician compliance with government rules and regulations. (Chicago Tribune, September 18, 1997)


A New Crisis - AMA and RWJ Crusade Against Binge Drinking

Over the next couple of years, perhaps even into the next millenium, the AMA armed with $50 million in grants from the Robert Wood Johnson (RWJ) Foundation will be fighting a new war (to succeed the victorious tobacco wars of the late 1990s). AMA officials will fight binge drinking on college campuses and universities. (AMNews, December 8, 1997.)
AMA President-elect Nancy W. Dickey, MD, appeared on The Oprah Winfrey Show on October 22, 1997 describing the goals of the new moral crusade. (While all of this crusading is going on, we wonder if alcohol will continue to be consumed at AMA festivities.)
Attempted prohibition of alcohol led to the rise and quick fall of the ill-conceived Eighteenth Amendment and gave birth to organized crime in America which is still with us. This historic episode in the 1920s presents an abject lesson in the futility of prohibition of a product traditionally and responsibly consumed by a large number of Americans and which, in moderation, has been shown to be beneficial to health and, above all, shown the error of the assumption that government and/or its subsidiaries "partners" know best.

In the Wake of the Tobacco Wars

In an editorial "Socialized Hypocrisy" in Access to Energy (July 1997), Dr. Arthur Robinson decries the ever-growing government moral crusades, yet rather than promoting virtue, it has promoted "a diminution of American moral standards and quality of life."
He points out at one time government believed gambling was destructive of life, family, and societal moral fiber. But today, government is in the gambling business. Dr. Robinson writes: "Our governments have plunged enthusiastically into the lottery business and encouraged proliferation of casinos throughout the land - casinos that pay large sums of protection money to government."
This is one way, he adds, "government bureaucrats come to the rescue with unemployment forms and lottery tickets to help fill the empty moments between TV commercials....The government involvement in the gambling industry pales, however, in comparison with the new partnership it is now forging with the cigarette industry."
He points out that government policy was socialized hypocrisy from the beginning, when they subsidized tobacco growers and then tried to justify this action by heavy taxes on cigarettes. Now, the government wants to go in the cigarette business and wants a piece of the pie. This time, the thinly veiled justification is that the government needs the money to pay for the alleged increased cost of smoking-related illnesses and KidCare. Perhaps, the state was not as concerned with our health as with control over our lives and pocketbooks!

Global Warming

Writing in The Wall Street Journal (12/04/97), Dr. Arthur Robinson, President of the Oregon Institute of Science and Medicine, thoroughly debunks the myth of global warming, "the global warming hypothesis is no longer tenable." Although there has been an observed rise in atmospheric carbon dioxide in the last 50 years which does correspond with the time of human release (half of the total amount), there has been no detectable global warming. On the contrary, since 1979 atmospheric temperatures have actually decreased by .5°C based on reliable satellite data and confirmed by weather balloons.
There has been a trend since the Little Ice Age which took place about 300 years ago, but this rise in temperature has been clearly correlated with solar activity.
Dr. Robinson writes: "In science, the ultimate test is the process of experiment. If a hypothesis fails the experiment test, it must be discarded. Therefore, the scientific method requires that the global warming hypothesis be rejected."
Dr. Robinson's observation supports Eagle Forum President Phyllis Schlafly (The Washington Times, 12/07/97) who has criticized the Kyoto Summit convened by the UN to reduce the burning of fossil fuels and man-made production of "greenhouse gases into the atmosphere." She writes: "The Climate Change Treaty would legally bind us to reduce our energy emissions to 20 percent below our 1990 levels, and would set 2005 as the year when this goal is to be reached. This would reduce our gross domestic product by $200 billion annually, cost us more than a million jobs, and cause massive disruption in the American economy."
These drastic cutbacks in the American economy would then be forced "to impose a massive energy tax that would drive up the cost of home heating and electricity by between 30 percent and 40 percent and put an additional tax of at least 60 cents on every gallon of gasoline..." What is ironic about all of this radical environmentalism based on pseudo-science is that the recent increase in carbon dioxide levels has increased the rate of photosynthesis in plants and this in turn has resulted in a quantifiable growth in our forests. As Dr. Robinson writes: "This is a wonderful and unexpected gift from the Industrial Revolution."

Originally published in the Medical Sentinel 1998;3(2):39-43. Copyright ©1998 Association of American Physicians and Surgeons.

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