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Monday, December 12, 2011

In health care we don't need no stinking rule of law

The concept of rule of law at a minimal means clarity of laws and regulations and uniform enforcement.

Consider the recent action of the Centers for Medicare and Medicaid (CMS) in regard to the imposition of pre-payment audits of certain procedures ( cardiac,joint replacements,spinal fusions)but only in certain states. See here.

This means that for these procedures hospitals will not be paid until government auditors review patient records and confirm that the procedure was "appropriate". How will that determination be made? What criteria will be applied to conclude that something was appropriate. Why does this only apply to NY,Texas,Florida,Michigan ,Ohio,North Carolina,Missouri and Pennsylvania? Uniform enforcement ? Clear Rules? According to CMS, some of the states have a high number of error or fraud cases while others just have a high volume of the procedures.

Rule of law fans have had little to cheer about since Obamacare was passed. The Secretary of HHS has issued exceptions to certain provisions of the law only to certain firms.See here for more on the waivers.

Dr.Wes has commented on the CMS plan suggesting that CMS may not actually have the expertise and organizational skills to render decisions in anything approaching a timely manner or to employ a rational evidence based decision making process. See here.

The blog "Secondhand Smoke" offered a commentary on Obamacare and its assault on the rule of law.

Richard Epstein has commented on Obamacare and Rule of Law. See Here.

Ambiguity in laws and regulations coupled with discretionary implementation are the friends of politicians and bureaucrats and lobbyists and the enemies of the rest of us.


HaynesBE said...

This is a very important point. I'd love to see you fill out this blog post a bit and then submit it as an op-ed. One of the biggest damages we are suffering because of PPACA is to the rule of law. More people need to understand this.

Andrew_M_Garland said...

The Democrats are not getting sufficient credit for their tremendous accomplishments, efficiency, and attention to detail. They act, they implement, they sign secret orders, and they interpret whatever they want to support their actions. This is in the grand tradition of FDR in the 1930's. The public respects action, especially when they don't understand what is going on.

Democrats have passed amazing legislation. They certainly have enacted into law more words in fewer bills than any other Congress in history.

More amazing is that those bills are so intuitive and natural in what they accomplish, that it is not even necessary to read them. The President and his viziers can now decree what is necessary and right, confident that this power to do good is contained somewhere in these documents. And, there is more good news to come.

The "Do the Right Thing" Bill
Future news:

"Do The Right Thing" will give us open, consistent, dynamic government. It grants President Michelle Obama (now in her 3rd term in office) all principles and powers to consider all matters and then "Do the right thing". The Congress retains the important function of advising on the President's actions should she desire this.

The Congress is now free to do what it does best, arrange for hospital admissions, allocate liquor licenses, and grant carbohydrate waivers to restaurants.

We have a choice in the next few elections. Vote out any legislator, Pub or Dem, who wants to increase control over your life without the clearest necessity. Or, embrace a government which will Do the Right Thing for you, in detail.

- -
ObamaCare as a practical matter pays homage to the free market while it stubbornly tries to manipulate a complex society through rules and "law". The bill doesn't attempt to get all of the details right, it merely tells the HHS Secretary (Sebellius) to solve all the problems and make all the rules.

Many organizations (insurers, doctor's groups) would be proposing their solutions in a free market. They are constrained by state laws and anti-trust against the doctors (!).

The government can't solve this problem because it must operate through nests of rules, rather than a profit from serving its customers. Those laws cannot be written or administered in the necessary complexity. Only private actors can administer healthcare with some discretion, held accountable by law to avoid force and fraud.

The worst part of government control is that it slows down the evolution of possibly many partial solutions. The government adopts one approach and freezes. Woe be to the customers.

If this control by government is accepted by the populace, we will eventually have the Do the Right Thing Bill. Maybe we already have it in practice.