What is Defensive Medicine?

March 12th, 2017

A simpler solution to healthcare reform in the United States.

March 5th, 2017

Facts:

1. Obamacare’s failure is inevitable.
2. Healthcare reform is needed to address the failure.
3. Healthcare reform has been promised by the new administration.
4. Medicaid is managed well by most states in association with managed care companies.
5. Medicare functions well in association with managed care companies, i.e. Medicare Advantage.
6. Healthcare reform cannot be sustained without reducing costs and sustaining cost reductions.
7. Cost reductions will reduce the quality of care.
8. Defensive medicine costs are a very significant part of healthcare costs.
9. Pharmaceutical costs are higher domestically when compared to other countries.
10. There is no cheap way for a nation to finance healthcare for its citizens.

Solution:

1. Address defensive medicine costs with medical malpractice tort reform. I have previously written about this. A justification can be found at this link. A solution can be found at this link.
2. Increase Medicaid availability to those under 65 years of age without a means test. This also addresses the pre-existing condition issue.
3. Increase Medicaid block grant funding to states and allow them to manage Medicaid without the need to constantly seek waivers for Medicaid management changes.
4. Those who opt out of the Medicaid option can purchase health insurance from the private market. But, it will be their choice. There will be no premium support for the purchase of insurance on the private market.
5. Increase Medicare and Medicaid fraud control.
6. Reduce Medicare reimbursement rates for hospital-based care. Hospital reimbursement rates are too high.
7. Reduce the burden of regulations on the primary care community so that it is possible for primary care physicians to re-enter private practice. This will increase the delivery of cost effective care and, over time, produce better health outcomes and quality for patients.
8. Start negotiating for pharmaceutical cost reductions in every sector of healthcare.

I am a Family Physician, Healthcare Attorney and former entrepreneur with many years of experience. I like to keep things simple and use what is readily available to me when solving problems.

It appears to me that the present administration and Congress are making mistakes similar to those of the Obama administration. The administration and Congress are listening to present and former elite academics, think-tanks and organized medicine to come up with a solution that is more complex than it needs to be.

Let the states be the payer for healthcare delivery to their citizens under 65 years of age. They will do a much better job managing costs than the federal government. They have Medicaid experience.

This approach will address many of the impending healthcare reform problems, will limit the administration’s exposure to failure and, more importantly, produce a palatable solution for U. S. citizens.

The Florida Supreme Court rules that the federal Patient Safety and Quality Improvement Act cannot be used to arbitrarily make medical error reports undiscoverable.

February 23rd, 2017

On January 31, 2017, The Florida Supreme Court ruled, in Jean Charles et al. v. Southern Baptist Hospital of Florida, that a health care facility or provider cannot shield documents from discovery by unilaterally classifying them as privileged under the Patient Safety and Quality Improvement Act.

Reason for ruling:

In 2004, citizen initiative Amendment 7 was adopted and makes reports of adverse medical incidents available to Florida citizens. Amendment 7 then became Article 10, section 25, of the Florida Constitution.

In an attempt to negate the impact of Amendment 7, Florida healthcare facilities and providers have attempted to claim that reports of medical errors were protected from discovery under the Patient Safety and Quality Improvement Act.

Baptist Hospital arbitrarily classified all medical error reports as Patient Safety and Quality Improvement Act records in order to make them undiscoverable in medical malpractice and peer review litigation.

“… health care providers should not be able to unilaterally decide which documents will be discoverable and which will not in medical malpractice cases.” Florida Supreme Court.

History:

The Institute of Medicine produced a report in 1999 stating that between 44,000 to 98,000 people die in hospitals annually due to medical error. This resulted in Congress passing the Patient Safety and Quality Improvement Act [PSQIA] in 2005. The Department of Health and Human Services’ rules concerning PSQIA went into effect in January of 2009.

The PSQIA allowed for the formation of patient safety organizations [PSOs] which are to “provide for the improvement of patient safety and to reduce the incidence of events that adversely effect [sic] patient safety.”

To complete their mission PSOs must have access to patient safety information, i.e. adverse incident reports. To encourage physicians and institutions to provide this information to PSOs, the PSQIA grants immunity from discovery for information that is prepared for and shared with a PSO. This information is classified as Patient Safety Work Product [PSWP] and is not discoverable by federal or state discovery.

But the statute clearly states, if the information was “collected, maintained or developed” for any purpose other than submission to a Patient Safety Organization, the information does not constitute Patient Safety Work Product and is not privileged or confidential under PSQIA.

Result:

So, an incident report that is collected and submitted to a state agency is not Patient Safety Work Product even if it is also submitted to a PSO.

Florida, as do other states, has a number of statutes that require reporting adverse incidents. These documents, which could be part of a peer review or a medical malpractice case and which were created to satisfy these statutory requirements, cannot be Patient Safety Work Product even if sent to a PSO.

The U. S. Department of Veterans Affairs undermines Family Medicine physicians by issuing a final rule granting advanced nurse practitioners “full practice authority.”

January 26th, 2017

On December 14, 2016, the Department of Veterans Affairs [VA] issued a final rule which amends its medical regulations to permit “full practice authority” for advanced practice registered nurses (APRN) when they are acting within the scope of their VA employment.

Certified Registered Nurse Anesthetists (CRNA) will not be included in the VA’s “full practice authority.”

The rule addresses three categories of nurse practitioners:

“By permitting the three APRN roles, Certified Nurse Practitioner (CNP), Clinical Nurse Specialist (CNS), or Certified Nurse-Midwife (CNM), throughout the VHA system with a way to achieve full practice authority in order to provide advanced nursing services to the full extent of their professional competence, VHA furthers its statutory mandate to provide quality health care to our nation’s veterans.”

One rationale for the rule is that nurse practitioners are hard to recruit:

“Nurse Practitioner is currently #3 in the top 5 difficult to recruit and retain nurse specialties.”

If Nurse Practitioners had been #1 on the recruitment list that would be a better rationale for the final rule.

The rule refers to “full practice authority” by stating:

“This final rule uses the term ‘full practice authority’ to refer to the APRN’s authority to provide advanced nursing services without the clinical oversight of a physician when that APRN is working within the scope of their VA employment.”

The VA hopes that “full practice authority” will help with nurse practitioner retention problems.

Actually, I think it will have the effect of causing a Family Physician recruitment and retention problem for the VA.

The rule was the result of a continuing “turf war” between physician led organized medicine versus organized nursing groups. The nurses won again.

The losers are Family Medicine physicians and general Internal Medicine physicians. They are being replaced by nurse practitioners. “The die is cast.” The nurses have the momentum.

I have discussed this issue previously but have seen little effective action by organized medicine to stem the tide of change.

Today, advanced practice registered nurses make up the fastest growing segment of the primary care professional workforce in the United States.

My concern is that Family Medicine physicians will be replaced by primary care nurse practitioners. The U. S. government, by giving nurse practitioners “full practice authority,” is helping to make this transition happen.

Why would one endure a Family Medicine residency and become a Family Physician when your skill level is considered to be the same as a nurse practitioner by the U. S. government and many state governments?

My final question is:

Can there be the same quality of care?

There cannot be the same quality of care.

Let the President Elect’s transition team know that addressing Defensive Medicine is a good starting point for fixing Obamacare.

November 13th, 2016

The President Elect’s transition team wants you to share your ideas with them.

In January, we will have a new President that has promised to replace Obamacare and make quality and affordable healthcare available to the citizens of the United States.

The President Elect must be introduced to the need for procedural changes to medical malpractice liability as an effective way to significantly reduce healthcare costs associated with defensive medicine?

Answering the following questions will help the President Elect and his transition team.

1. Does defensive medicine exist?

2. If it does, can increased costs of care be associated with defensive medicine?

3. Is the use of defensive medicine effective in reducing malpractice claims?

4. Is the percentage of increased costs significant enough to justify changes to medical malpractice liability procedures?

5. If yes, then what changes should be implemented?

Anecdotally, we all know that defensive medicine is a reality in spite of a number of individuals saying that it does not exist or, if it does, that it is inconsequential and does not need to be addressed. To help support the reality of defensive medicine you simply have to read a paper, “Physician spending and subsequent risk of malpractice claims: observational study,” by Harvard and Stanford scholars in the British Medical Journal. I discussed this paper last year.

The study question was: “Is a higher use of resources by physicians associated with a reduced risk of malpractice claims?” The answer was yes. But, you knew that already. Importantly, the study supported this with facts.

The study included 24,637 Florida physicians, 154,725 physician years and 18,352,391 hospital admissions. 4,342 malpractice claims were made against the physicians.

The results showed that greater spending by physicians was associated with a lower risk of being subject to a malpractice claim. Internists that fell within the lower 20% of internist spending ($19,725.00 per hospital admission) had a 1.5% chance of incurring a malpractice claim.

Internists in the top 20% tier of spending ($39,379.00 per hospital admission) had a 0.3% chance of incurring a malpractice claim. A five fold decrease in being subject to a malpractice claim.

Who wouldn’t use more resources and increase spending if it would significantly reduce incurring a malpractice claim.

The authors concluded that:

1. “. … a greater use of resources was associated with statistically significant lower subsequent rates of alleged malpractice incidents.”

2. “Within specialty and after adjustment for patient characteristics, higher resource use by physicians is associated with fewer malpractice claims.”

The study showed an increase of $19,654.00 in costs per hospital admission from the bottom 20% tier to the top 20% tier in the numbers we presented above.

The upper tier internists actually outspent the lower tier internists by a factor of two. A 100% increase in spending is significant. The overall percentage increase would be less when all the tiers are included. But, it would still be significant. It would be greater than the 25% level I previously have considered as a benchmark cost of defensive medicine.

So, the existence of defensive medicine and significant increased associated costs is supported by a factual study.

Because defensive medicine significantly increases the overall costs of healthcare, changes to medical malpractice liability procedures could reduce the need for defensive medicine and dramatically reduce overall healthcare costs in the U. S. It might make healthcare insurance more affordable.

Also, changes would dramatically increase overall physician satisfaction with the profession.

This is needed in today’s highly regulated practice environment.

You cannot have effective healthcare reform without real medical malpractice liability reform. Obamacare did not introduce any changes to medical malpractice liability and, as written, specifically protects the status quo of medical malpractice liability.

Let the President Elect’s transition team know that defensive medicine and medical malpractice liability reform have to be addressed in order to effectively control healthcare costs.

Go to the transition team’s website and share your ideas with them. You can copy and paste this article in the share your ideas form if you wish. It only takes minutes.

Tap or click for a practical solution to medical malpractice reform.

HillaryCare (1993) to ObamaCare (2010) and now possibly back to HillaryCare (2017)

October 24th, 2016

Hillary Clinton, the Democratic Presidential Candidate will convert ObamaCare into a single payer system if she is elected President of the United States. It will basically be “Medicare for all.” This is in line with her initial attempt, in 1993 as First-Lady, to force universal health care upon the Nation.

In the notes of former Hillary Clinton confidante Diane Blair at the University of Arkansas is an account of a Feb. 23, 1993 Whitehouse dinner Blair attended. At the dinner, [Hillary] Clinton told her husband during dinner that “managed competition” — a private health insurance market — was “a crock, single payer necessary; maybe add to Medicare.”

Yes, a private health insurance market was a “crock.”

“… single payer necessary ….”

Ms. Clinton has stated that she has public and a private position on political issues.

In excerpts from one of Mrs Clinton’s paid speeches to Wall Street bankers, she said:

“Politics is like sausage being made. It is unsavory, and it always has been that way, but we usually end up where we need to be.
But if everybody’s watching, you know, all of the back room discussions and the deals, you know, then people get a little nervous, to say the least. So, you need both a public and a private position.”

The 2016 Democratic Party Platform addressed the issue of securing universal health care:

“Democrats believe that health care is a right, not a privilege, and our health care system should put people before profits… This will include removing barriers to states which seek to experiment with plans to ensure universal health care to every person in their state.”

See page 34, 2016 Democratic Party Platform, July 21, 2016.

The Health Care Act 0f 1993 [HillaryCare] was designed to completely take over the United States’ health care system with the implementation of specific treatment guidelines and severe comprehensive cost control measures.

The freedom to choose a physician would have been non-existent. HillaryCare would have told you who you could see and when you could see them. HillaryCare would also have dictated what specific treatments could be done by the physician. Physicians would have had to participate in HillaryCare or they would have been economically forced out of business.

It was a Machiavellian plan. It was to be a complete takeover of the health care system by the Government.

I remember watching, with incredulousness, when the American Medical Association and American Academy of Family Physicians jumped on board with both feet. All willing to give up control of the art of medicine to HillaryCare’s proposed National Control Board.

Fortunately, the HillaryCare effort of 1993 was recognized for what it was and did not become law.

Now we are dealing with the shortcomings of ObamaCare, a less comprehensive clone of HillaryCare.

Today, even Democrats now recognize that ObamaCare is on a downward spiral.

Insurers are jumping ship. Premiums are going up. Co-pays are going up. Deductibles of up to $7,150.00 are coming in 2017 with the blessing of the United States’ Department of Health and Human Services.

Keeping your doctor is becoming almost impossible to do because of the shrinking ObamaCare networks.

The “middle class” cannot afford ObamaCare policies. ObamaCare does not work for the “middle class” and cannot be “tweaked” to make it work.

Democratic Gov. Mark Dayton of Minnesota recently said that “the Affordable Care Act [ObamaCare] is no longer affordable.” Gov. Dayton had been an avid supporter of ObamaCare from the beginning but has had to accept the fact that the citizens of Minnesota cannot afford to buy ObamaCare health insurance.

As former Democratic President Bill Clinton recently said while campaigning for his wife in Flint, Michigan:

“So you’ve got this crazy system [ObamaCare] where all of a sudden 25 million more people [in large part as a result of Medicaid expansions] have health care and then the people who are out there busting it [the ‘middle class’], sometimes 60 hours a week, wind up with their premiums doubled and their coverage cut in half. It’s the craziest thing in the world.”

So, health care is an issue that the next President of the United States will have to quickly address. The question we now face is to whom do we want to give this task.

An October 18, 2016 Wikileaks’ release of a 2015 email between the Democratic Presidential Candidate and her senior advisors supports what we already knew. She has wanted Obamacare to fail in order for her to resurrect HillaryCare and implement a single payer system. A complete governmental takeover of every aspect of the health care system by bureaucrats.

The Republican Presidential Candidate, Donald Trump, has said he will replace ObamaCare and start fresh.

His health care position states:

“On day one of the Trump Administration, we will ask Congress to immediately deliver a full repeal of ObamaCare.

However, it is not enough to simply repeal this terrible legislation. We will work with Congress to make sure we have a series of reforms ready for implementation that follow free market principles and that will restore economic freedom and certainty to everyone in this country. By following free market principles and working together to create sound public policy that will broaden healthcare access, make healthcare more affordable and improve the quality of the care available to all Americans.“

The choice is between a fresh start in developing a health care system that works for all Americans or converting an existing dysfunctional system, ObamaCare, into a complete takeover of the United States health care system in the form of HillaryCare 2017.

We need a fresh start in order to produce a solution that will actually work for all Americans, including physicians and surgeons.

U. S. Department of Health and Human Services issues an Obamacare rule that can be used to force surgeons and physicians to do sexual transition procedures.

September 25th, 2016

Recently, the U. S. Department of Health and Human Services [HHS] issued a rule that will allow the Government to force surgeons and physicians to perform medical procedures designed to permanently change an individual’s sex, at any age, even if the procedure is contrary to the surgeon or physician’s medical judgment.

This is an effort by the Obama administration to push its support of “trans rights” to stratospheric heights that are outside the bounds of common sense. It is creating a problem that does not exist and interfering in a delicate physician/patient relationship. HHS uses section 1557 of the Affordable Care Act [ACA or Obamacare] as its basis for issuing this rule.

To accomplish this, HHS has arbitrarily redefined the term “sex” to include “gender identity.” Even though the United States Congress has refused many attempts to redefine the term “sex,” the Obama administration feels it has the right to so.

Facts:

1. In March of 2010, President Obama signed into law the Affordable Care Act.

2. Section 1557 of ACA states that no one can be denied federally funded health benefits because of a person’s race, color, national origin, sex, age or disability.

3. Section 1557 does not define terms such as “sex.”

4. Section 1557’s basis for prohibiting sex discrimination is based on the section’s reference to Title IX, 20 U.S.C.A. section 1681 et seq.

5. Title IX is a comprehensive federal law (1972) that prohibits discrimination on the basis of sex in any federally funded education program or activity.

6. Title IX does not define the term “sex” to include “gender identity.” Title IX does not define the term “sex.”

7. Congress has denied repeated attempts to expand the term “sex” from its meaning as used in Title IX.

8. On May 18, 2016, HHS published the new rule and arbitrarily expanded the term of “sex” to include “gender identity.”

9. The new rule applies to all entities and individuals that offer health care services that are in any way financed by the U. S. Government, such as Medicare or Medicaid.

10. On August 21, 2016, the United States District Court for the Northern District of Texas, issued an injunction against the U. S. Department of Education’s [DOE] recent guidelines on transgender use of bathrooms and “concludes § 106.33 [of title IX rules] is not ambiguous. It cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DOE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth. See 34 C.F.R. § 106.33.”

11. Therefore, HHS cannot redefine the term “sex” to include “gender identity.”

12. HHS had actually used these DOE guidelines as authority for its right to expand the term “sex” to include “gender identity” in the new rule.

So again, we have the Obama administration circumventing Congress in order to push a political agenda forward. It does it with complete disregard for the rights of surgeons and physicians. The Obama administration would force a surgeon and physician to disregard their medical judgment. Even if the surgeon and physician thought the sexual transition procedure or procedures were not medically beneficial or necessary, the Government would force them to perform the transition surgery.

If they do not comply, then the U. S. Government will punish them.

The Government’s contempt for the Hippocratic Oath is clear. A physician is to do no harm. The physician and surgeon are the arbiters of whether or not harm will be done. Not the Government.

This contempt can be seen in HHS’s statement that “a categorization of all [sexual] transition-related treatment – as experimental, is outdated and not based on current standards of care.” See 81 Fed. Reg. at 31435 and 31429.

That is a decision for each surgeon and physician to make, not a decision the Government should be making.

The Government should not be interfering in the physician/patient relationship, particularly in the area of sexual transition procedures.

Common sense dictates that interference, use of force and threats of punishment will only result in decreased availability of these procedures in the future.

The Comprehensive Addiction and Recovery Act of 2016 [CARA]

August 26th, 2016

Economic Impact of the Opioid Epidemic:

$55 billion in health and social costs related to prescription opioid abuse each year. (Pain Med. 2011;12(4):657-67).

$20 billion in emergency department and inpatient care for opioid poisonings. (Pain Med. 2013;14(10):1534-47).

On July 22, 2016 President Obama signed into law the Comprehensive Addiction and Recovery Act of 2016 [CARA].

President Obama stated: ”This legislation includes some modest steps to address the opioid epidemic. Given the scope of this crisis, some action is better than none.”

Not a whole hearted endorsement.

There is an opioid problem in the United States. It is not new. An example of the newly recognized severity of the problem can be understood by looking at Vermont. It seems that the major growth industry, in a state with little other growth, is opioid treatment centers such as methadone clinics.

The problem is severe enough to have had the Governor of Vermont devote his 2014 “State of the State” address to battling opioid addiction and declaring it a public health crisis.

Facts:

The American Society of Addiction Medicine, in its 2016 Facts & Figures, states that:

1. “Drug overdose is the leading cause of accidental death in the United States, with 47,055 lethal drug overdoses in 2014.”

2. “The overdose death rate in 2008 was nearly four times the 1999 rate; sales of prescription pain relievers in 2010 were four times those in 1999; and the substance use disorder treatment admission rate was six times the 1999 rate.”

3. “In 2012, 259 million prescriptions were written for opioids, which is more than enough to give every American adult their own bottle of pills.”

4. “Four in five new heroin users started out misusing prescription painkillers.”

5. “94% of respondents in a 2015 survey of people in treatment for opioid addiction said they chose to use heroin because prescription opioids were ‘far more expensive and harder to obtain’.”

CARA is a comprehensive response to the opioid epidemic and will address the areas of:

1. prevention by expanding educational efforts to teens and adults concerning the abuse of heroin, other opioids and methamphetamine and the availability of treatment programs,

2. treatment by developing evidence based treatment and expanding best practices nationwide,

3. recovery by expanding medication assisted treatment programs,

4. law enforcement with diversion programs that will direct low level drug law violations away from the criminal justice system,

5. criminal justice reform by expanding medication treatment programs to those who are incarcerated and,

6. overdose reversal by expanding the availability of naloxone to help reverse overdoses.

I think the significant impact that CARA can have is in the medication assisted treatment area. CARA allows nurse practitioners and physician assistants to prescribe buprenorphine for the first time.

Buprenorphine is an opioid medication used to treat opioid addiction in the privacy of a physician’s office.

The expansion of prescribing rights to nurse practitioners and physician assistants will allow more individuals to be treated with buprenorphine.

Currently, there is a limit of 30 patients that a physician may treat during year one of being certified to prescribe buprenorphine.

This limit expands to 100 patients after year one of certification. Even with a 100 patient limit, there are many patients than cannot be assisted with buprenorphine treatment because of this limit.

Buprenorphine is not a silver bullet. But, I am certified and have seen it help individuals regain control of their lives, re-enter society and function as productive individuals.

The next step is to allow certified physicians to significantly expand the number of patients that they can treat with buprenorphine after the first year of certification. President Obama’s administration is considering expanding the number of patients a physician can treat from 100 to 200 plus. This would improve access for patients in need of treatment. The President and his staff should act on this as soon as possible.

If the President and his staff do not act, then Congress should act.

A number in the range of 300 patients would be an appropriate limit. The number has to be high enough to give a prescribing physician the opportunity to generate enough revenue to support the increased personnel demands and complexities of a practice that focuses on medication assisted treatment of opioid addiction.

You want to attract more community based physicians into medication assisted treatment, not non-physician entrepreneurs who will just seek to cash in on a highly recognized health care need. To do this you have to allow the physicians to make enough money to sustain their entry into medication assisted treatment.

One of the concerns with CARA is the limited amount of initial funding authorized for CARA programs. Another concern is that funding has to be re-appropriated each year. So, there will always be an uncertainty concerning future funding because of the need for annual appropriations.

But, even if Congress does not fully fund the programs outlined in CARA, the expansion of medication [e.g. buprenorphine] assisted treatment programs can have a dramatic impact.

Renewed push for a single payer national health care system – another disruption of health care.

July 20th, 2016

Hillary Clinton has embraced Bernie Sanders’ plan to create a new health care entitlement – Medicare, regardless of age, for all citizens of the United States. President Obama has jumped onboard to support this and states that “Congress should revisit a public plan to compete alongside private insurers.”

Adopting this plan will lead to the demise of many private health insurers. Many insurers will not be able to compete against a Medicare for all ages program that will not be constrained by a need to be profitable or efficiently run.

The Democrats have to move Obamacare to a Medicare for all ages plan in order to insure that Obamacare’s future collapse is not a reality that they will have to own as a political legacy.

Unfortunately, the Democrats do not share any details on how a Medicare for all ages plan will be structured or paid for.

The state of Colorado has already decided to give its citizens the option of replacing Obamacare with a state-wide single payer system. This is motivated by the failures of Obamacare and the uncertainty of Obamacare’s survival.

The Kaiser Family Foundation has found that Obamacare’s long-term survival is still in question, with premium prices looking as if they could soar by a double-digit percentage in 2017.

On November 8th, Colorado citizens will vote for Amendment 69, “ColoradoCare.” The Obama administration has pledged $13 billion in funding for ColoradoCare. That leaves a $25 billion deficit that the citizens and employers of Colorado will have to pay in new taxes.

The ColoradoCare system would operate using the cooperative business model — it would be owned by the members (Colorado residents), who would elect a board of trustees.

Amendment 69 states that: “Colorado will finance health care through ColoradoCare, a political subdivision of the state governed by a twenty-one member board of trustees that will administer a coordinated payment system for health care services and control the per capita cost of health care … ColoradoCare is not an agency of the state and is not subject to administrative direction or control by any state executive, department, commission, board, bureau, or agency.”

So, it seems that the state of Colorado will tax its citizens in order to finance a healthcare cooperative that is “a political subdivision of the state” but “not an agency of the state” and “is not subject to [state] administrative direction.” That does not seem to be workable.

Obamacare health care cooperatives have not had a successful history. More than half of Obamacare’s health care cooperatives have had to close their doors because of mismanagement and a lack of promised Obamacare funding. Only 8 of the 23 original Obamacare cooperatives have survived. Those still remaining are all struggling to survive.

I see no reason why the ColoradoCare cooperative will not have the same difficulties to face.

Naturally, all physicians and surgeons would have to contract with ColoradoCare and accept its reimbursement levels. My guess is that these will be lower than the physicians and surgeons need to survive and will ultimately cause many to flee to other states. Time will tell.

So, I think we have to wait to see how well Amendment 69 does on November 8th. That will give us a good reading on whether the citizens and employers of the United States are ready to bear the burdens in taxes and inconvenience that will result from a Federally run single payer health care system.

Don’t forget that the U.S. Department of Veterans Affairs is a single payer system. How is that single payer system doing?

Another major problem I see with this is that no one seems to care about the impact these changes have on the physicians and surgeons who deliver care.

Politicians, political activists and academicians cannot continue changing and disrupting the medical profession and health care delivery system. Sooner or later physicians and surgeons will have had enough.

Obamacare severely injured by recent Federal Court decision. But, not a mortal wound.

May 24th, 2016

Recently, the media has been headlining statements that Obamacare was declared unconstitutional, on May 12, 2016, by a Federal District Judge because the court found that Obamacare’s Section 1402 reimbursements paid to insurers had not been validly appropriated by Congress.

The media is wrong to classify all of Obamacare unconstitutional. The judge’s ruling was directed at reimbursements to insurers to cover Obamacare’s dictates that co-pays, deductibles and similar charges for low-income individuals must be reduced (referred to as Obamacare “cost-sharing reductions”).

The Government had promised to reimburse insurers for these reductions. These reimbursements were estimated to exceed 130 billion dollars over 10 years. A number big enough that its loss will surely damage the insurers participating on the Obamacare exchanges.

All expenditures by the Government must be authorized and appropriated by the Congress of the United States. If there is no Congressional Appropriation, there cannot be an expenditure. “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . .” Art. I, § 9, cl. 7 of the U. S. Constitution; see also United States v. MacCollom, 426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”).

An appropriation must be expressly stated, it cannot be inferred or implied.

The House of Representatives instituted this lawsuit because the Obama administration’s reimbursements to insurers, without a valid appropriation, were a violation of the U. S. Constitution’s “separation of powers.”

The Democratic party’s Obamacare authors, when writing section 1402 of the law, did not appropriate any money for Section 1402. The Democratic party controlled Congress could have remedied this by making an appropriation for Section 1402 after Obamacare became law, but they did not.

The House of Representatives instituted this lawsuit because the administration’s reimbursements to insurers, without a valid appropriation, were a violation of the U. S. Constitution’s “separation of powers” between the Executive Branch and Congress.

The Obama administration was sure that the the House of Representatives’ lawsuit would be dismissed on the basis of standing. The adminstration’s position was generally supported by legal scholars. But, it seemed to me that any harm to the constitutional rights of Congress, by the Obama administration, would be enough to grant the House of Representatives standing and allow the suit to move forward.

The Obama administration’s constant abuse of executive power had made it overly confident that it would nevertheless win even if standing was granted. I was optimistic that the “separation of powers” question would be decided in the House of Representatives’ favor.

So now, Obamacare is severely injured but not mortally wounded. The way to save the patient is to have Congress pass a valid appropriation for Section 1402. But, I don’t see that happening in an election year. So, the only hope for the Obama administration is to seek a reversal on appeal. I don’t think that will happen either.

This all could have been avoided if the authors of the law and the Democratic party controlled Congress would have dotted all the i’s and crossed all the t’s in the law. They did not. Sloppy work.

Now we have to wait and see if this will force insurers to abandon or limit their future participation on the Obamacare exchanges. At a minimum it will increase deductibles and co-pays for consumer policies obtained through Obamacare exchanges.

More unnecessary pain for the citizens, physicians and healthcare insurers of this Country. The Affordable Care Act (Obamacare) is quickly becoming the “Unaffordable Care Act.”