Road to Serfdom paved with good intentions

What do TSA groping, NSA data-mining, and mercury-laced fluorescent light bulbs have to do with keeping your doctor? They are the products of seductively entitled but flawed laws. As Daniel Webster said, “good intentions will always be pleaded for every assumption of authority.” The Transportation Security Administration and the National Security Agency restrain our liberty under the auspices of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (PATRIOT Act). The Energy Independence and Security Act is phasing out incandescent bulbs. The Patient Protection and Affordable Care Act (ACA/ “ObamaCare”) sounds as though our best interests were at the heart of the legislation. But so far, the 400,000-word law that nobody read has spawned some 12 million words in regulations. Now these regulations that even fewer people read are coming between you and that doctor you were promised you could keep. The modern-day mission creep began with the Health Insurance Portability and Accountability Act of 1996 (HIPAA). To “safeguard the privacy of protected health information,” HIPAA’s Administrative Simplification Standard mandated the use of the National Provider Identifier (NPI) for “covered entities,” i.e., those who electronically transmit health information. The NPI extended its reach to “non-covered” physicians who neither sent nor intended to send claims for services they furnished to private insurers or government programs. Without an NPI on the paperwork to refer patients for diagnostic testing, a claim could be denied. Obtaining an NPI was a small concession to Big Brother for physicians who were not enrolled in the Medicare program. After all, even if their patients chose to pay their personal doctor out of pocket, they had paid their Medicare premiums and deserved the benefit of that insurance for other services and supplies. For the overlords at Medicare, an NPI was no longer sufficient. The ACA specifically requires physicians/practitioners to enroll in or officially opt out of the Medicare Program to order medical supplies and home health services and have these claims accepted. To “ensure program integrity,” a gem of a catchall ACA provision (section 6405(c)) gives the Secretary of Health and Human Services (HHS) unilateral authority to extend this mandate to “all other categories of items and services.” Wasting no time, HHS added clinical laboratory and radiology tests to the mandate via regulations. Despite the longstanding policy of approving prescriptions dispensed under applicable state law, a new ACA-proposed rule adds medications covered by a Medicare Part D drug plan to the enroll/opt-out mandate. Physicians are bullied into bowing at the altar of bureaucracy or having Medicare deny payment for their patients’ claims for pharmaceuticals and other providers’ services. So to protect their patients financially, physicians acquiesce to more rigmarole. In short, opting out requires making payment contracts with each patient that must be available for inspection, and filing a 12-point affidavit with the government. The entire process must be repeated every two years. And add this little buried nugget to the pile. Next year, health plans may only contract with providers who have “mechanisms to improve health care quality as the Secretary may by regulation require.” Only Heaven knows how this will work. The current “voluntary” Physician Quality Reporting System forms are so complex that despite the specter of financial penalties few physicians respond. Studies have shown that the government with its mainly process-oriented quality measures differs with patients in their perceptions of quality care. Indeed, the government cautions that completing forms is no substitute for local quality-improvement efforts. Physicians are regulated and disciplined by the medical boards of the states in which they practice. Nonetheless, the federal government wants to track physicians with their own Medicare GPS. Whether enrolled or opted out, the government’s mission is accomplished: controlling physicians through layer upon layer of paperwork. The effort to control physicians and patients’ choices one rule at a time is backfiring. Patients are seeking out “high value” physicians who are willing to be innovative in providing individualized care and affordable payment options. They know that real “administrative simplification” is bypassing the middlemen with an open market that has transparent costs.

Marilyn Singleton, M.D. J.D.

About the author:  Marilyn M. Singleton, MD, JD is a board-certified anesthesiologist and Association of American Physicians and Surgeons (AAPS) member. Despite being told, “they don’t take Negroes at Stanford”, she graduated from Stanford and earned her MD at UCSF Medical School. Dr. Singleton completed 2 years of Surgery residency at UCSF, then her Anesthesia residency at Harvard’s Beth Israel Hospital. She was an instructor, then Assistant Professor of Anesthesiology and Critical Care Medicine at Johns Hopkins Hospital in Baltimore, Maryland before returning to California for private practice. While still working in the operating room, she attended UC Berkeley Law School, focusing on constitutional law and administrative law. She interned at the National Health Law Project and practiced insurance and health law. She teaches classes in the recognition of elder abuse and constitutional law for non-lawyers. Dr. Singleton recently returned from El Salvador where she conducted make-shift medical clinics in two rural villages. Her latest presentation to physicians was at the AAPS annual meeting about challenging the political elite.