Friday, June 29, 2012

How do you turn a mandate into a tax-just say the magic words

If you are the Chief Justice of the Supreme Court you have the power of magic words.

The individual mandate of ACA was called a mandate because , well, it was considered by the legislators as a mandate. The supporters of ACA claimed it was perfectly constitutional under the commerce clause because it-and as best I can tell almost everything-has something to do with interstate commerce and congress has the authority to regulate interstate commerce.

The Court ruled that the mandate was not constitutional under the commerce clause but it was when considered to be covered by the taxing authority of congress.But what about the Anti-injunction Act that says you cannot appeal a tax before it is paid?Well, in that regard it is not a tax.

When I use a word,' Humpty Dumpty said in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty, "which is to be master— that's all."

George Will , in his commentary, argued that the limitation of the commerce clause that he believed occurred with the Court's ruling was actually a major victory for the forces that are striving to limit the power of the federal government since so much of the growth of federal power has been carried out under the cover of generous interpretations of the commence clause. Will is hopeful that that trend may now be thwarted by this ruling.

On the other hand it may be the case that now the court has offered a precedent that allows a mandate to stand because the penalty for failure to comply with the mandate is a tax and congress can tax pretty much anything it wants and thereby makes mandates willy-nilly if they can be construed to "really" be a tax. Law Professor Ilya Somin makes that argument here.

Quoting Professor Somin:

Pretty much any other mandate could be magically converted into a tax by the same sleight of hand - so long as the penalty for violating it is a fine similar to the one that enforces the individual mandate. The danger here is not just theoretical. Numerous interest groups could potentially lobby Congress to enact a law requiring people to buy their products, just as the health insurance industry did.

In rejecting the federal government’s argument that the mandate is authorized by the Commerce Clause, the chief justice emphasized that the Constitution denies Congress the power to “bring countless decisions an individual could potentially make within the scope of federal regulation and ... empower Congress to make those decisions for him.” Yet he has allowed the government to claim that same power under the Tax Clause

Monday, June 25, 2012

AMA joins the "gangwaggon" to guilt doctors to become stewards of society's resources

Kudos to Dr Doug Perednia,author of the blog Road to Hellth, for his denunciation (see here) of AMA's latest egregious attack on traditional medical ethics which is a sell out of both physicians and patients. They join the bandwagon,(gangwagon) initiative to destroy the traditional physician-patient relationship which had already been rocked by the alarmingly successful attack from the New Medical Professionalism-New Medical Ethics spearheaded by the folks at the ACP and ABIM and some of their internist colleagues in Europe.

Dr. Perednia quotes Med Page regarding AMA's actions.

CHICAGO — Providing effective medical care includes an “obligation” to prudently manage healthcare resources, according to a report approved by the American Medical Association’s House of Delegates on Monday.

In fact, managing healthcare resources “is compatible with physicians’ primary obligation to serve the interests of individual patients,” the report reads. It further states that considering the welfare of only the patient currently being treated when making recommendations does “not mesh with the reality of clinical practice.”…

So the obligation (whenever the hell that obligation came from) to manage healthcare resources seems to preclude "considering the welfare of only the patient currently being treated".

Are they are throwing the fiduciary duty of the physician to the patient out of the window?Patients seek medical help to get the best advice for their given condition not to engage in some self sacrificial exercise in forgoing the optimal treatment for the nebulous and undefinable good of society . How much concern do you think a worried parent in the physician's office with a sick child cares about some abstract conservation of society's resources or furtherance of social justice.

In contrast to the gobbledygook of such phrases as "doesn't mesh with reality of clinical practice" and the gratuitous assertion of an operationally meaningless obligation. and the unwarranted assumption that physicians all have a collectivist philosophical mindset, Dr. Perednia makes these valid arguments:

The first principle is that, in Western democratic cultures, when any of us seek out a physician for care, our primary goal is finding a solution to our own particular medical problems rather than a cure for the ills of society. In this role and in our minds, a doctor is supposed to be the equivalent of our “medical lawyer”:

  • We provide the facts of the case as we know them.
  • Our physician is supposed to gather any other relevant evidence and, using his special knowledge, outline all of the possible courses of action we might take and suggest the one that is most compatible with our goals and the resources available to us.
  • He is supposed to looking out for our best interests rather than the interests of others. When a doctor or lawyer takes your case, he is supposed to be working for you: not your opponent, not insurers, not government, not world peace or society as a whole.

The New Professionalism brainchild of ACP and friends did not quite say that social justice and the equitable allocation of scarce medical resources was an ethical obligation of physicians but the New Ethics Manual of the ACP made it explicit. It was a definite ethical game changer.See here for earlier comments on that development.

With many (most) professional medical associations mindlessly signing on to the New Professionalism and now with the AMA imprimatur I have little hope that the next generation of newly minted physicians will enter the field inculcated with the (now obsolete) notion that the physician's primary and fiduciary duty is to the patient.

I offer the following in partial proof on this fear as one "leader with ideas" has suggested
that "cost-consiousness and stewardship of resources be elevated by the ACGME and the ABMS to the level of a new seventh general competency." In other words, residents should be schooled and graded on their mastery of the skill set necessary to be good stewards of [society's] resources. ( reference, The Idea and Opinions Section, Annals of Internal Medicine,20 Sept 2011,Vol.155 no.6, by Dr. Steven E. Weinberger,of the American College of Physicians.

What could be more advantageous to the HMOs,ACOs and medical insurance companies than to flimflam the medical profession into accepting an new ethical paradigm that conveniently coincides with the bottom line of those organizations?

The concept "physicians as stewards of society's medical resources" is , in one sense a meaningless abstraction, and in another, a useful fiction. Useful to the HMOs,ACOs and insurers who now can enjoy to a much greater degree than before, physicians working to bolster their bottom line but decreasing costs also known as providing less to patients.

The socially conscientious physician might feel somewhat at loss as to how he might carry out the massive,pretentious and ambiguous task of stewarding society's resources.He should feel reassured ,though, because all it will take will be "follow the guidelines" and by doing so he will do what it right for that patient and for society as a whole. Wasn't that easy.

Tuesday, June 19, 2012

The litigation to allow seniors to refuse Medicare Part A goes deeper in the rabbit hole

I have written in amazement about this lawsuit before.Several plaintiffs are attempting to assert what they believe to be their right to refuse Medicare Part A without losing their social security benefit payments.See here. The case is Hill v. Sebelius.Of course,I agree you should be able to decline Medicare without penalty.But the trial court and now the appellate court see things differently.

The case has proceed slowly through the legal system and now a three judge panel has ruled against the plaintiffs. It seems that there is a CMS rule book regulation that states if a person refuses Medicare Part A he will not receive the social security benefits he would have otherwise be eligible for. If one accepts Medicare A and then later decides to decline this "entitlement"he will stop receiving SS payments and have to repay what he had previously received. Earlier a judge in the case said in effect that Medicare benefits were a "mandatory entitlement".

Note this draconian rule was not written into the Medicare law or anything else that should have statuary power and came into existence in something called the Program Operations Manuel System (POMS) which apparently is simply advice for the program administrators and never went through any formal rule making process.

See here for the latest development in this case.

Sunday, June 17, 2012

Obamacare's IPAB is not just unconstitutional but is anti-constitution -Cato

An important Cato policy paper can be found here .Among many other important comments in the paper is the charge that Obamacare is not just unconstitutional;it is" anti-constitutional".

I have written about IPAB on several occasions. See here for some of my comments about IPAB and the concept of an "entrenchment provision" which a legal scholar discusses here offering tepid assurance that such a thing could not really happen. Entrenchment means that a legislature passes a law and includes within that statute a provision that prohibit future legislature from repealing or altering the law. There is such wording in ACA.

According to the Cato paper referenced above, the Obama administration has said that of course, IPAB could be abolished by congressional action even though Cato's paper said that statement conflicts with the clear wording of ACA. The legal analysis quoted above does say that apparently the Supreme Court has said they will not allow entrenchment.Whether IPAB is really entrenched on not,one has to assume that the authors of that section wanted IPAB to be an immutable,eternal entity.

So maybe (hopefully) that aspect of IPAB is just a tempest in a teapot but there is much more to be very,very worried about with IPAB . The Cato paper written by Diane Cohen and Michael Cannon discusses those issues in detail.If their analysis is correct the power that this appointed body will have is more than mind numbingly frightening.

Here is a good summary on Cato's web site giving a brief summary of the paper referenced above.

Wednesday, June 13, 2012

The gift that keeps giving-the stimulus to the electronic medical record industry

The American Recovery and Reinvestment Act had a number of beneficiaries.Part of the legislation was money for physicians to use to purchase electronic health record systems.

Stimulus for whom? Physicians do receive a relatively small payment ( about 40 -60 k) for agreeing to install EHR systems (electronic Medical records system) but were there large numbers of the rank and file physicians out lobbying for that part of the stimulus bill? I think not.But legislative packages do not arise at random out of thin air,there are folks at work lobbying for things that provide them favors.Economists call this behavior rent seeking. .There was much rent seeking going on the stimulus bill .

Maybe we should look to companies that sell the products and services that the goverment was giving money to physicians to purchase. Several of them worked with former Republican presidential candidate N. Gingrich's consultancy known as "Center for Health Transformation" which among other initiatives championed the electronics health record as a means of improving health care. These including Allscripts,Microsoft,Siemens and GE Health Care.

The underlying principle of the universe,there is no free lunch,applies to the faux beneficiaries- the physicians. The golden rule applies .He who has the gold makes the rules. The gift to the docs comes with strings,lots of them linked to Medicaid and Medicare payments. The 19 billion ( or 27 billion,depending on what source you read )given to the EHR companies through the physician checkbooks is just a drop in a big bucket as physicians will now have the obligation to keep the soft and hardware running and of course update regularly with new versions of the various software packages and update their systems as Federal requirement evolve.

Docs will also be tasked with proving their new system are demonstrating "meaningful use" a goverment term of art with very specific details that physicians practices will have to learn and try to comply with.See here for a reference for an explanation of the 25 criterion for meaningful use. Failure to achieve this level of use will at the end of the day ( a five year day) result in decrease in the CMS payments for services to the physicians who are meaninglessly utilizing their EHR.

Many- if not most- examples of rent seeking simply involves transferring tax payer money to a
the entity that successfully lobbyed for the favor. That happened here , of course, but additionally physicians will obliged to keep the systems running providing a continuing income stream to the EHR industry in perpetuity and providing a means of increasing control of the physicians practices.Part of the meaningful use requirements is to maintain a data base registry of patients with a given condition so that the doc can then demonstrate to the central authority the degree to which his practice complies with this or that guideline.

As if that all were not enough to push the older docs to decide right now to retire, part of the stimulus bill ( AKA American Recovery and Reinvestment Act of 2009) contains more stringent and detailed requirement and new penalties under HIPPA, See here for that.

We are the from the government ,we are here to help .

Cahoots ,Obamacare and Big Pharma

Dr. Richard Fogoros in his blog,The Covert Rationing Blog,made the observation that big health insurance companies were on board with Obamacare and helped get that statute passed because the way thing were going that was their only chance to be at least viable for awhile longer and then perhaps exist as a more or less regulated utility.See here for his cogent observations

Now, we have good reason to believe that Big Pharma was in cahoots with the democrats to pass Obamacare.What did Big Pharma get out it? Eliminating the part of the proposed legislation that would allow reimporting of prescriptions drugs and at least resisting price controls for a while. See here for the comments from the blog Health Care BS. See here for the WSJ report for details of the involvement of drug companies in pushing for the passage of ACA using astro turf type front groups (i.e two 501(c)(4) organizations).

WSJ points out that at least Big Pharma got something for their support.What AMA is alleged to have been lobbying for (the doc fix) was not part of the bill.Well,swimming with the sharks (also known as "a seat at the table") has its risks but at least the AMA leadership was able to have claimed a victory for social justice.

Thursday, June 07, 2012

Muscle soreness after marathon-what do the muscle biopsies show?

I have completed marathons for 35 years and an interesting ( at least to me) change in the pattern of post marathon recovery time has emerged. When I as younger and more foolish I would train faster ( a relative term) and attempt to hit a target time for the race. For several years, I would strive to finish in under 3 1/2 hours. In the 2-4 days after those races, my quadriceps were sore and tender , the soreness peaking on day 2 and was particularly evident on attempting to walk downstairs.

This phenomenon is called delayed onset muscle soreness (DOMS).Although lactic acid buildup was once said to be the cause now the thinking is that the key element is eccentric exercise with damage to the muscle fibers and lactic acid exonerated.Neither post exercise icing nor use of NSAIDs seem to help but there is some fairly unconvincing data suggesting that post run massage might mitigate the soreness a bit.Well it feels good anyway.

In recent years there is no significant post race soreness in the thighs at anything near the level experienced earlier in my running odyssey. I developed the habit (obsession) of typically covering a long training distance on the weekends, running about 20 miles on a typical Saturday with no soreness on Sunday.

What do muscle biopsies demonstrate after marathons?

Here is a full text article from the American Journal of Pathology 1985 by M.J. Warhol. Muscle biopsies were done on the lateral gastrocnemius muscle of forty runners 48 hours after a marathon and again at one week, one month and 8-10 weeks. Light and electron microscopy were done.

At 48 hours there was damage to the myofibrils with abnormal findings evident in the mitochondria and sarcoplasmic reticulum. The damage was patchy and quite variable in extent from one runner to the next, with some demonstrating very little damage. Type II ( fast-twitch) fibers seemed to be more damaged. By day seven, "ghost cells" (empty muscle cells) were seen and satellite cells appeared. By one month there was continuing evidence of muscle cell regeneration but the pathological changes had largely resolved. There was no inflammatory cellular response reported in this paper but another report did describe some inflammatory cells.Some runners showed evidence of fibrosis. By 12 weeks there was continued electron microscopic evidence of muscle cell regeneration.

Similar light microscopy findings were reported earlier by RS Hikida ( with senior author D Costell ) in the Journal of Neuro Science 1983,May 59(2),195-203. However, their results differed in that they reported evidence of inflammation while Warhol suggested those changes were due to the trauma of the biopsy. Hikada also did pre-race biopsies showing some of the same changes prompting the suggestion that the intensive training for the marathon may have caused similar cellular changes.

A pattern emerges of damage to muscle cells that drop out and are replaced by new cells.

If the type II fibers are disproportionately affected perhaps my slower times and less participation by my type II fibers might account for the lack of post race soreness. Type II fibers kick in as the energy output increases moving toward the maximal oxygen uptake and when glycogen stores are depleted.Further the sarcopenia of aging also disproportionately targets type II cells so I may have less muscle cells at risk and I run so slowly that my fast twitch fibers for the most part have the day off.

What data are available regarding morphological changes in the muscles of athletes who exercise at high levels for many years? So far I have been unable to find any.