News and Analysis (May/June 1999)

Monkey Medicine and Clinical Pathways

Well, it's official. Physicians who practice medicine in hospitals that have implemented "Clinical Pathways" no longer have to think. All they have to do is "follow the yellow brick road." Patients will be issued a pair of ruby slippers on admission and taught to recite "there's no place like home" so as to insure that they don't overstay their welcome (i.e., allotted DRG time).

At my hospital, WCA Hospital in Jamestown, New York, posters have started appearing at nursing stations declaring in large, bold print: Have You Considered the CHF Clinical Pathway? This coincided, of course, with the release of a 6-page hospital memorandum to the medical staff containing the CHF Clinical Pathway. The Clinical Pathway for CHF (Congestive Heart Failure) defines virtually everything that should be done on day 1 through day 6 of the patient's hospital stay. Curiously, the Medicare approved length of stay for CHF just happens to be 6 days. So, the Clinical Pathway is derived from how long a Medicare bureaucrat thinks you should stay in the hospital if you have CHF.

The Clinical Pathway defines what is appropriate in terms of diagnostics, assessments, treatments, activity, nutrition, safety, and, of course, discharge planning which is initiated on Day 1 just after the patient sets foot in the hospital. Even bowel movements have their approved days for monitoring, noting that the patient is not required to have one on Day 1 or Day 2. It is also suggested that you come into the hospital in fairly clean condition as a bath is not one of the specifically approved Clinical Pathway activities on Day 1 or on Day 6.

So, if checking the boxes and following the yellow brick road isn't for you, don't look back...that hairy, banana eating creature gaining on you just might be your replacement!

Market Disconnect and Schizophrenia

...Just as in real estate, where location is everything, in market disconnect perspective is everything. To the patient, particularly one in a government program where "someone else" will be forced to pay for increased costs, market disconnect looks like a good deal --- "it's all free after all. One can argue long-term rationing and other effects of price controls, but most patients don't believe rationing is real in this country or that their own government would do such a thing to them and virtually none would be able to recognize the hidden ways it's usually accomplished anyway --- just like most managed care patients don't know what they're not getting.

From the hospital's perspective, market disconnect used to be a good thing because the revenue stream was strong and the more costs the hospital could show the more money they could get from the government. But now that the revenue stream is slowing down to a trickle and the DRG rationing scheme has been implemented and is being ratcheted down by the government, market disconnect is a bad thing for hospitals.

Of course, once hospitals start getting hurt from market disconnect, they start looking to share their hurt with others, principally their physicians. Or as our hospital CEO puts it, he wants to see an "economic realignment of hospital and physicians." This is all part of his vision of "integrated delivery." All of a sudden there is a big push to adopt "Clinical Pathways" for every DRG thing done in the hospital. The CEO feels that physicians need to be encouraged and "coerced" (an interesting choice of words or slip of the tongue) to follow strict clinical pathways so that we can "streamline" and "standardize" the quality of care throughout the hospital --- interpretation: cost containment. In fact, the Average Length Of Stay (ALOS) comparison sheet which the CEO passed out compared our hospital to a hospital that many of us had never heard of before --- Bassett Hospital. And why are Bassett Hospital's LOS numbers so low? Well, our CEO tells us that they have a very good system where all of the physicians are employees of the hospital and the hospital is able to weed out those who consistently have "bad" numbers so that they can maintain high quality. I can recall some physicians scoffing at my warning several years ago when integrated delivery was first being proposed by the hospital that the CEO's vision of a fully integrated delivery system might include 100 percent employment of all physicians or its "global pricing" equivalent. And, far be it from me to tell them "I told you so," because many are so misled or demoralized at this point that they may simply be willing to accept slavery hoping that their slave owners will treat them well...

Last year, our hospital ran a deficit of $7.5 million and for the first time in over 100 years the hospital was forced to lay off employees. The hospital CEO explained the financial crisis by telling us that the hospital was losing money because Medicare and managed care are paying such low fees. At the same time, however, the hospital CEO was busy promoting the Medicare managed care product which is associated with the Chautauqua County Integrated Delivery System.* In fact, the hospital gives free space to the managed care company to hold regular sales meetings with seniors in the hospital. If they ever develop a code for institutional schizophrenia, I will be happy to serve as an expert and cite this as an example of what it looks like.

On March 24, 1999, the WCA Hospital Board announced that Mark Celmer would no longer be CEO of the hospital.

*The ability of Ingsoc party members to hold two completely contradictory beliefs simultaneously was called doublethink by George Orwell in his great novel 1984. Bureaucrats and administrators are mastering this concept, particularly Big Brother's motto: Freedom is Slavery. ---Ed.

Cryptic Medicare Violations

It has come to my attention that HCFA wants to start subjecting non-participating physicians to civil and criminal penalties without providing adequate notice of violation and the opportunity to either dispute the finding or make the refund as required by law. Apparently because of severe budget constraints, Medicare will no longer be writing letters to non-participating physicians to notify them of alleged limiting charge violations. Instead, they will essentially hide the "notice" in unreadable microprint on Medicare Remittance Notices which physicians are not required to receive. This means that physicians who never receive even the hidden microprint notice will be subjected to fines and penalties for alleged violations that they don't even know about. It's almost as if physicians are expected to self-incriminate themselves. Meanwhile, Medicare's computers generate this trash "cost efficiently" whether it is accurate or not. My experience with these Limiting Charge Exception Reports (LCER) is that Medicare has never been right in a single case that I can recall. All of the LCER violations I have received over the years were errors - usually carrier errors! Surely there is some legal requirement that citizens are entitled to receive a readable notice of violation before being convicted of some crime. What HCFA intends to do in this case is akin to printing speed limit signs on the streets in 17-point microprint. This new policy is abusive and totally unfair to non-participating physicians. It does not affect participating physicians at all since the LCERs don't occur with physicians that accept assignment on all Medicare patients.

Code A0999

Talk about absurd and wasteful bureaucracy, did you know that there is actually a code (A0999) to be used when you submit a Medicare claim that is "for denial purposes only?" (Medicare Bulletin, Dec. 1998, p. 26). Medicare goes on to warn physicians that Medicare "beneficiaries" have the right to have their claim submitted so that it can be denied, although Medicare cannot guarantee that it will actually be denied. Medicare states they may pay the claim even though it is requested that it be denied.

Organ Donation State Imperative

Recently, I attended a conference on "Legislative Changes in Organ Donation Procedures." A new federal law already in effect requires the reporting to an "organ procurement organization" (OPO) any and all deaths or impending hospital deaths. This includes individuals who are over the age of 80 and individuals who are HIV positive, even though these individuals do not actually qualify for organ donation.

We were informed that HCFA has hired a horde of new people who will begin reviewing charts in hospitals across the nation to make sure that everyone is in compliance with this law which will take effect on August 1, 1999. All hospitals that take Medicare money are required to comply under Sec. 482.45 #(4).

I asked the physician presenter, who is the Medical Director of Upstate New York Transplant Services (the local OPO): What happens if the family has a belief that they still have the right to privacy and confidentiality? What happens if the patient and/or family specifically instructs the physician not to notify the organ procurement organization (OPO)? To which the medical director replied that the physician still had a legal obligation to inform OPO of the patient's death or impending death and medical condition. "But doctor, you and I both took an Oath to protect and preserve patient privacy and confidentiality. Does this mean that we are legally required to violate the Oath of Hippocrates? His answer was "Yes." He indicated that the government "requires it."

The new federal organ procurement referral law also prohibits physicians from discussing the topic of organ donation with the patient and family. The law requires that this type of communication only be done by a "designated requester," who we are told is a person who has had special training and who is approved by the government to discuss such things. The physician can be present during this conversation with the family, but cannot discuss organ donation with the family before the designated requester. "Do you mean to say, doctor, that free speech between patients/families and their physicians is now prohibited by law?" The answer was "Yes."

The non-physician presenter, director of organ services, who happens to be a "certified Eye Enucleator," opined that "this is what the government has decided to do and it's not likely going to be changed." It was his opinion that with "proper public education" people would come to accept these things.

At present, though, the bottom line is that patient privacy, confidentiality, free speech between physician and patient, and the very Oath of Hippocrates itself have all been sacrificed for the purported "greater good of the group" for the purpose of procuring more organs.

Government Waging War On Privacy

According to the National Committee on Vital and Health Statistics chairman Don E. Detmer, M.D., those "privacy fundamentalists" who believe in strict confidentiality of patient medical records are "technophobes" and "privacy terrorists."

That's right, physicians who are loyal to the Oath and principles of Hippocrates are now considered by our own government to be in the same category as Bin Laden and Saddam Hussein. In a draft copy of the committee's report to HHS, Dr. Detmer states:

"The privacy fundamentalists seek the right to remain unknown. The most extreme of this group would also demand that everyone's data be treated that way as well. They would hold the entire culture hostage to their viewpoint and in this sense have been referred to as privacy terrorists. So, some prefer total personal control over any and all uses of their data. Technophobia is an element here." (Draft: The National Committee on Vital and Health Statistics 1996-1998).

Dr. Detmer says that since we live in a "global society" we need to focus on ways to achieve a "healthier globe." He indicates that this "will require a solid vision for a national health information infrastructure and the commitment to achieve it." In his view this is necessary to "assure all people in America access to basic, effective health care services." In this regard, he notes that we are lacking leadership and are just not keeping up with the other globalist, socialist nations in the world. "A number of other nations around the globe already understand this vision and are taking actions to bring it about."

We conclude that Dr. Detmer might benefit from a visit to an ophthalmologist of his choice to have his "vision" checked so that he can see what country he actually lives in.

And speaking of "technophobes," inquiring minds might like to know that Intel has announced plans to install a unique serial number on each of its new Pentium III computer chips. Each time you go on the Internet, it will automatically transmit your unique serial number so that the user's identity can be verified and tracked. This will allow vendors to "surreptitiously track consumers on the Web," says Rep. Edward J. Markey (D-Mass). It will, of course, also allow government to track users on the Web as well. The senior member of the House consumer protection subcommittee says "Intel's new product improves technology for online commerce in a way that compromises personal privacy" (The Buffalo News, Jan 26, 1999). Intel tells consumers not to worry though because it has no plans at present to keep a master database that would match the serial numbers with individual consumers.

And last but not least is the Federal Deposit Insurance Corporation's plan to implement the "Know Your Customer" regulations. The new rule which was published in the December 7, 1998 Federal Register will require every bank to profile their customer's banking transactions and report any unusual deviation to the government. If you sell your old car and deposit the money in the bank, you had better be prepared to prove to your banker where you got the money.

The new law, which at the time of this writing was scheduled to go into effect on April 1, 1999, will turn the banks into an agent of Big Brother and will turn all citizens into de facto criminals unless and until they can prove the honest source of their funds and financial transactions.

In an effort to combat this transformation of our country into Red China, Congressman Ron Paul (AAPS member) has introduced the Know Your Customer Regulations Termination Act (HR 516). We note that Congressman Paul has also introduced the Freedom and Privacy Restoration Act (HR 220) as well. The latter act would prohibit the use of your Social Security Number for purposes not related to Social Security and would forbid the creation of any new national ID card or number, including a unique patient identifier (required under the Kassebaum-Kennedy law of 1996). Thank goodness for National Treasures like Dr. Ron Paul.

Congressman Bob Barr (R-GA) has also worked with Dr. Paul on these issues and introduced a complimentary bill. See also Medical Sentinel, "Privacy and Confidentiality." --- Ed.

The Criminalization of Medicine Intensifies

Although Deputy Attorney General Eric H. Holder, Jr. has told the medical community not to worry because the heavy-handed approach government has taken in the realm of health care fraud is merely a "perception" and they have no intention of using the False Claims Act against those who merely commit "honest billing mistakes," (American Hospital Association, Feb 1, 1999*), the government continues to move forward with the process to criminalize medicine.

We note, however, this is the same Deputy Attorney General who refused to raise his "heavy hand" against the administration that appointed him to his post when asked to investigate top Clinton advisor, Ira Magaziner, for charges of perjury and contempt of court which arose from the AAPS v. Clinton lawsuit.

Mr. Holder held that the truth or falsity of Mr. Magaziner's sworn statement could not be determined because it all depended on the definition of "employee," which he found to be a fluid and confusing concept. (AAPS News, October 1995). We conclude from this and the recent impeachment proceedings that we have all fallen down the rabbit hole and there are no crimes committed in the Clinton White house by definition.

Meanwhile, six Pennsylvania physicians have been charged with crimes ranging from simple assault to involuntary manslaughter related to their practice of medicine at the Polk Center, a state-run facility near Erie, Pennsylvania, (The Post-Journal, Feb 27, 1999).

In an erie parallel to the Einaugler case (Medical Sentinel, July/August 1998) one of the physicians has been charged with involuntary manslaughter for transferring a patient with a "stomach disorder" to the hospital later in the day rather than earlier in the day. The patient died six hours after admission to the hospital.

Two other physicians have been charged with involuntary manslaughter, one for "failure to meet the professional standards of care" (Clinical Pathways?) and another for failing to obtain a CT of the brain when the state felt that one should have been obtained.

*The entire speech by Deputy Attorney General Eric H. Holder, Jr. to the American Hospital Association on Feb. 1, 1999 is posted on our website at www.haciendapub.com. It's of interest, of course, that the Deputy Attorney General neglects to mention that, health care "fraud," whatever the level of severity, was inaugurated in Washington, D.C. with Medicare and Medicaid and the corrupting influence of government money.

The reader is also referred to the pertinent remarks of Dr. Jane M. Orient in response to the Counsel of the Office of the Inspector General in the Sept/Oct. 1998 issue of the Medical Sentinel.---Ed.

Medicare's Imminent Rationing and Quality-Adjusted Life Years (QALY)

In the January 1999 Medicare B Bulletin published by Upstate Medicare, medical director Dr. Edward M. Cox attempts to prepare physicians to accept more government rationing of care in the Medicare program.

Dr. Cox gives the "payer's perspective" on the "net cost per unit of outcome obtained." He says that "treatments are considered for their effectiveness and their costs. Only the more effective treatments would be considered [sounds a bit like Oregon's list of covered conditions]. If they are more costly, as well as more effective, the decision making process can be difficult." Never fear though, Medicare will tell you which treatments they feel are effective and they will make the decision as to whether you can get the treatment or not.

Dr. Cox then poses the question "what is the cutoff point at which we can't afford to adopt an intervention?" or less politely put --- who will suffer and who will die as a result of government-rationed care? Dr. Cox notes that "only about 10 percent of interventions in medicine are cost saving." Doesn't sound too good for the aging population does it?

But Medicare tells us not to worry because they have all of the cost figures figured out. Dr. Cox tells us that "most interventions that have been studied cost between $10,000 and $100,000 per life-year gained." In addition to looking at the data from a net cost per unit outcome basis, they have also calculated the cost per quality-adjusted life years (QALY) --- i.e., Medicare will determine the quality of life you have and "adjust" (shorten?) your life accordingly. The tighter the budget, the shorter the life "adjustment." Sounds so neat and clean, doesn't it? Go right in...they're just showers...and the water is fine.

Dr. Cox concludes: "These cost figures are of great significance as we look forward to the increase of our aged population. They help us understand why there are limitations in various insurance programs, including Medicare." I wonder if Dr. Cox will be as understanding about government rationing of healthcare when he is the "unit" whose net cost is being calculated and when his quality of life is being assessed by the bureaucrats to determine if an "adjustment" is needed or not? QFT --- "Quality" food for thought...don't you think?

Ms. Nancy-Ann Min DeParle on Private Contracting

In testimony provided by HCFA Administrator Ms. Nancy-Ann Min DeParle before the Senate Finance Committee "On Private Contracting In Medicare" given on February 26, 1998, Ms. DeParle states:

"There has been substantial misunderstanding about what section 4507 of the Balance Budget Act (of 1997) does, so I would like to clarify several major points. The confusion rests predominantly on four issues: Who is affected by Medicare rules?

"Medicare rules apply only to individuals enrolled in Medicare. Part B of Medicare, which covers physician services, is a voluntary program and beneficiaries choose to enroll and they can disenroll at any point. Medicare Part B rules do not apply to individuals or disabled persons who are eligible for Medicare, but not enrolled in Part B. Medicare rules do not apply to physicians' or practitioners' treatment of patients who are not enrolled in Medicare. Therefore, a private contract is not necessary for a physician to provide services to an individual who is Medicare-eligible, but who is not enrolled in Part B of the program." (See testimony under subtitle: "Who is Affected by Medicare Rules?")

Furthermore, Ms. DeParle affirms: "In general, Medicare's relationship with a beneficiary enrolled in a managed care plan is significantly different from Medicare's relationship with a beneficiary in Medicare fee-for-service. My previous discussion (see above) of private contracting pertained to Medicare fee-for-service. Beneficiaries enrolling in managed care plans agree to obtain all of their services through the plan, which is the only entity authorized to receive Medicare payment for services provided to these enrollees. Thus, these beneficiaries receive services only from physicians affiliated with that plan. In contrast, in Medicare fee-for-service, beneficiaries can receive covered services from any qualified provider who meets minimum program requirements and renders such services."

It is clear from Ms. DeParle's testimony, that Medicare Part B rules apply only to traditional Part B Medicare, not to Medicare managed care. Part B rules include a physician claim submission requirement within one year of service provided to the patient. For physicians who do not participate in either Medicare or managed care, there is no claim submission requirement either to Medicare or to the HMO. Medicare Part B rules also include federal, and where applicable, state limiting charges. Limiting charges do not apply to Medicare managed care patients who go out of network to receive services. Ms. DeParle testifies as follows:

"If a beneficiary who is enrolled in a managed care plan receives a service from a physician who does not have a contract with the plan, and the service is not authorized by the plan, then the service is not a "covered service." In that case, neither the managed care plan nor Medicare pays the physician or reimburses the beneficiary. The service can be provided at the fee agreed upon between the physician and the beneficiary and a private contract is not necessary to provide the service. The physician does not have to opt-out of Medicare for two years under the private contract provision in order to provide this service." (See testimony under subtitle: "Managed Care Plans.")

I contacted Rep. Ron Paul (R-TX) who confirms that physicians who do not have contracts with HMOs, and who do not take assignment are under no legal obligation to file any claim with Medicare and Medicare's limiting charges do not apply. In a letter to me dated December 10, 1998, Congressman Paul states:

"My staff has researched this question and has been assured by the Health Care Financing Administration (HCFA) that a physician who does not take assignment and is not part of a Medicare HMO network incurs no legal obligation to file with Medicare when treating a patient enrolled in a Medicare HMO. Furthermore, the physician does not have to abide by Medicare's price controls."

Complete testimony of HCFA administrator Nancy-Ann Min DeParle on "Private Contracting" in Medicare before the Senate Finance Committee. ---Ed.

This edition of News and Analysis was written by AAPS Board of Directors member, Lawrence R. Huntoon, MD, PhD.