Obamacare, AB 76, SB 71 -- government deception

Governor Brown's veto message for AB 76 is a  sublime essence of deception. Here is the actual  text: "I am returning Assembly Bill 76 without my signature. This bill is unnecessary as I am signing a similar measure, Senate Bill 71. A Constitutional Amendment has also been introduced that will preserve the existing Constitutional and statuatory requirements of the California Public Records Act. -- Sincerely, Edmund G. Brown, Jr.

Readers of this column already know that Brown signed SB 71 while vetoing AB 76. Our readers also know that SB 71 is a mirror image of AB 76. So Brown didn't veto anything. Instead, he has contrived to project an appearance of preserving access to public records with a huge cutback in the only significant benefit injured workers managed to wrangle out of last year's SB 863.

Both bills were run through the legislature at the same time, one in the Assembly, the other, in the Senate. When I spoke to one of the Senators who seemed well disposed to calling the Assembly bill, AB 76, into question no mention was made of the parallel bill on the Senate side, SB 71, lurking around the corner although both bills had the same anti-injured worker provision about return-to-work.

SB 71 pays lip service to the provision in SB 863 that appropriated $120,000,000 per year to pay for a return-to-work program for injured workers. The slap in the face to injured workers is the provision of SB 71 that was also included in AB 76: "the program applies only to injuries that occur on or after January 1, 2013."

When SB 863 was passed this $120,000,000 benefit was applied to all injured workers, not just  injured workers whose injuries occurred on or after January 1, 2013.  It was a key reason why this otherwise hostile bill to injured workers got support from the California Labor Federation which collaborared  with big business (Grimmway Farms) to get it passed. 

Although it is unlikely that this sophisticated a plan was entirely worked out in advance, it has turned out to be stunningly successful for Big Business.

As for Obamacare, we'll next discuss how the Independent Payment Advisory Board (IPAB) will be empowered to work first to limit the franchise to the elderly and then to restrict access to care to all participants while Congress and possibly even IRS fight to remain exempt from its alleged protections.

OBAMA VERSUS OBAMACARE

"Modest reforms," that's what he said.

The president's state of the union address included this vapid and vague comment:  "Those of us who care deeply about programs like Medicare must embrace the need for modest reforms." Best we can tell, President Obama intends to skewer the wealthier beneficiaries of Medicare. The idea is to apply these "modest reforms" to hit wealthier Medicare beneficiaries by raising their premiums, delaying onset of Medicare eligibility by two years until age 67, and using the IPAB (Independent Payment Advisory Board) to ration or limit access to available services. In other words, kindly move over and die sooner.

While raising the age for full Medicare benefits may make sense, and while charging more to those whose incomes is above a certain level may also make sense, it smacks of hypocrisy for Congress and the President to allow an appointed IPAB bureaucracy to deny services to the public while specifically exempting themselves. In case it's not widely known, know this: the president and Congress exempted themselves from the Affordable Care Act (ACA, known as Obamacare). The president and Congress have their own (better) health care plan (no IPAB).

The ACA as currently written allows insurance companies to increase premiums as a way to defray the cost of covering the millions of added recipients who currently don't have insurance. The already-insured will pay more in premiums than they're currently paying to cover the millions of currently uninsured persons who will be covered by the ACA. At the same time the IPAB will be enabled to disqualify diagnostic and treatment protocols of their own choosing.

Here's what else Obama said: "The biggest driver of our long-term debt is the rising cost of health care for an aging population." I herewith forgive any elderly person for not volunteering immediately for ID (instant demise).  It's not a mystery as to why Congress exempted itself and why Nancy Pelosi asked to have the bill passed just to find out what was in it.

So let's repeat Obama's entire statement: "And those of us who care deeply about programs like Medicare must embrace the need for modest reforms -- otherwise, our retirement funds will crowd out the investments we need for our children, and jeopardize the promise of a secure retirement for future generations."

What wasn't said is that one way to start would be to include the president, the executive branch of government, and Congress in Obamacare as opposed to awarding them a better and more extensive program than the rest of us. Readers may like to know that Congress allows itself to use military hospitals on a "prn" or "pro re nata" basis (translation: "as needed"). Ordinary citizens don't have this privilege.

President Obama even had the temerity to say that "already, the Affordable Care Act is helping to slow the growth of health care costs." In fact, what we're seeing in the real world is increasing costs to cover enhanced executive compensation, not a penny, not a farthing, for increased access to specialty care for the elderly or for anyone else.  What doctors are seeing in the real world is increasing numbers of people ostensibly covered by the ACA, while, simultaneously, the IPAB mechanism is prepared to strip away currently available benefits and to put on hold future advances in available medical care. This two-pronged program takes away with one hand what it makes available with the other hand -- it's a fiscal device to make a flawed program appear more successful than it is.  We already know that businesses are switching as much of their work forces as possible to temporary hires so they'll not be obliged to provide health care.

Basically, as to health care and the ACA, president Obama's State-of-the-Union address was  non-responsive and disappointing. 

PRELIMINARY WARNING RE THE AFFORDABLE CARE ACT

AFFORDABLE HEALTHCARE OR OBAMACARE, officially known as the Affordable Care Act (ACA) of 2010, is about to be ruled on by SCOTUS.
One item that physicians with difficult, challenging, and unusual patients need to worry about is how the ruling will challenge their ability to take care of complicated patients who have proved refractory to standard therapies, or who have failed conventional treatment protocols. These physicians and their patients could well have their hands tied unless Section 10320 is modified or eliminated. Section 10320 allows for the appointment of an Independent Payment Advisory Board (IPAB), a tribunal of persons who need not necessarily be physicians. This panel will determine what the ACA will cover. The IPAB will not report to the people or to Congress. Ensconced in legislative fiat, it is poised to ration care by finding various procedures and protocols outside the mandate of coverage. In California where we watch the misuse of Utilization Review in Workers Compensation, we see how it works: treatments with lower success rates or that aren't buttressed by what authorities consider sufficient Evidence Based Medicine are disallowed no matter how carefully a specific treatment or study may be indicated on an indivdual basis and even though the patient may have failed everything else. Injured workers in California are deprived of indicated care by this method on a daily basis. So may it be with other patients covered by the ACA unless Section 10320 is altered or repealed. Watch for our follow-up on this issue.

POISON PILLS AND HOT TICKETS  -- IS THE IPAB BOTH?

The Hot Ticket for health care on a national basis is the fate of the Affordable Care Act (ACA), also called Obamacare,  and its controversial arm to keep costs in check, namely, the Independent Payment Review Board (IPAB).  Congressional Representative, Anna Eshoo, D-Ca, in a recent exchange with this writer, said that demands to repeal the IPAB were ill considered because we need to control costs.

Medical historians know that the IPAB began life as the IMAB or Independent Medicare Advisory Board. When the Medicare community learned to what extent it was being targeted, cries of "death panels," exaggerated though they were, brought the IMAB to its knees, well, to one knee anyway, because it's now back on its feet as the IPAB in the ACA (Section 10320 thereof).

Meeting now in New Orleans is the American Academy of Neurology (AAN). In an official publication dated 23 March 2012, the following was stated: "The AAN strongly supports both IPAB repeal and medical malpractice reform ... with the addition of the poison pill (italics added) of liability reform, House Republicans were still able to pass IPAB repeal but lost most of the Democratic support."

For the uninitiated, a poison pill in legislation may be an element added as an amendment to a bill that causes a substantial number of legislators to pull away from the bill though they might otherwise support it. In this case, medical malpractice reform is not what the trial lawyers or their legislative allies want. So to them linking repeal of the IPAB to medical malpractice reform is a poison pill that works for their interests since it'll stop medical malpractice reform just as it's emerging again as a force.

In an earlier publication dated 14 July 2011, "Tell Congress to Eliminate the IPAB," AAN stated that the "IPAB effectively removes Medicare spending decisions from Congress  and leaves them up to an unelected, unaccountable board." Actually, the board members will be responsible to the politicians who get them appointed to the board.

If the name of the game, as Eshoo said, is to control costs, the meaning is clear -- cost control gets priority over the medical care that we as individual patients may actually get. It means that treatments favorably reviewed by professional organizations may not be approved for use by the IPAB because of obeisance to cost-control rules and regulations, not yet even codified.  Political considerations, not medical indications, now govern medical care.

In this instance, all it took to slow down IPAB repeal was to link it to medical malpractice reform. That's how poison pills work. Is there palliation for this poison pill? Yes, there could be.

Requiring Congress to be covered by the ACA and the IPAB should it survive could be palliative. Congress, knowing little about the bill, having passed it "to see what's in it," knew enough about it all along to know that they didn't want to be covered by it. So Congress exempted itself from ACA coverage. We should insist they extend the ACA, if it survives court challenge, so that Congress itself is covered by it -- that's when, and only then, will we  know with reasonable medical probability that the IPAB will either be eliminated or will conduct itself equitably.

Repeal of the IPAB or, at the least, modification of the ACA should be a top priority for any organization purportedly devoted to equitable medical care.

RATIONING COMES HOME TO ROOST IN THE FORM OF DENIALS OF CARE

In these columns (www.politicsofhealthcare.com) we've previously pointed out how Utilization Review in California is twisted and turned to deny care to injured workers. We've also shown how the Affordable Care Act, aka Obamacare, contains a not-so-subtle rationing section known as the Independent Payment Advisory Board (IPAB) pursuant to Section 10320 of the ACA.

What's next on the Denial Menu is a method to deny care not only to injured workers and Medicare recipients, but to anyone, anywhere, anytime. The insurance companies are adopting plans based on science but far from scientific. Here's how such plans work and how they'll be used in compliance with the ACA.

Currently, insurance companies are allowed to warn subscribers about medications, adverse effects of medications, and how some medications may have ill effects if combined with certain other medications or substances. In the media limelight just now is how xanax and alcohol if taken together may prove fatal.

The program seems protective; however, practicing physicians know how insurance companies use this concept to push generic medications over trade-name products that treating physicians feel are superior or to deny a recommended treatment for another that costs less.

Practicing physicians have also observed that specific treatments with comparatively lower levels of success than others, sometimes the best bet for certain patients, may be denied because their overall success rate is less than a pre-designated level of success, say, 50%. But in some patients there may not be a better choice.

Delay and Denial Menus (DADMs)

This concept is being used to deny or delay diagnostic and treatment protocols, e.g, tests physicians use to decide upon diagnosis and regulate treatment. These Delay and Denial menus mean that insurance companies will not be obliged to pay for tests or treatments that don't measure up to internal business protocols that need not be explained or even made known to the public or to the companies' own subscribers. Here's how it'll work:

Insurance Company UltraNix may give its own grades to various diagnostic tests and treatments. Those tests and treatments graded "A" or "B" will get covered, e.g., maybe 100% for "A," maybe 75% for "B," maybe less for "C," and not at all for "D." The cut-off levels are decided by the insurance companies. Most likely to be effected will be cancer screening and other conditions where the last scientific word hasn't yet been written. One may reasonably ask why insurance companies shouldn't wait for the last scientific word. The answer is that science is slow, e.g., aspirin for protection from heart disease wasn't fully accepted until comparatively recently although medical and scientific data in support of this use was already in circulation for many years.

Because of the ACA such restrictions which amount to rationing may now enjoy the force of law despite President Obama's solemn promise in the autumn of 2009 that "I will ensure that no government bureaucrat gets between you and the care you need."

The restrictions shoved down subscribers' throats will not be subject to debate, disclosure, or revision -- these restrictions will be equivalent to "black box" recommendations just as those made by the Independent Payment Advisory Board (IPAB) even though President Obama recently promised in his State of the Union address that "I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny your coverage or charge women differently."

One result of the ACA is to permit insurance companies to adopt measures to restrict benefits without actually cancelling policies. If insurance companies can deny claims based on internal protocols of their own and not cancel policies, they'll have the best of both worlds, i.e., your premiums and no obligation to pay out on claims for diagnostic tests, treatment protocols, or medicines.

One caveat: the insurance companies will be off-the-hook only with reference to paying for the diagnostic test or treatment that one's doctor may have prescribed. Patients who want to pay 100% for something that their insurance companies have refused to cover will still be able to do so.

If this concept sounds like a scam, that's because it is. What is sad is that it fits into the Affordable Care Act which allows for precisely those denials of care that President Obama said he would not tolerate.

Other References by Robert L. Weinmann, MD

San Jose Business Journal, week of August 3, 1987 ("... it is our business to know which contracts our doctors sign"

San Jose Mercury News, April 2, 1993, "Managed care: the dark side" ("... the plan's doctors ... agree that the diagnostic tests and treatment plans they may prescribe may be abbreviated or disallowed by the plan's cost controllers")

Congressional Record, May 27, 1993 (above, reprinted, with comment from Pete Stark, MOC, D-CA)

San Francisco Examiner, January 12, 1996, "Medical red-lining :'Economic credentials' for physicians"

Congressional Record, 9 September 1998 (above, reprinted, with comment from then MOC Tom Campbell, R-CA)

The Hill, Washington, DC, 9/16/09, "What Obama should've said about health reform"

POLITICO, 12/14/2010, Washington, DC, "How to ration care without using the 'R' word"

POLITICO, 01/18/2011, Washington, DC, "Section 10320 of the Affordable Care Act Should Be Repealed First"

POLITICO, 07/14/2011, Washington, DC, "GOP dilemma: How to oppose IPAB: The Independent Payment Advisory Board (IPAB) is bad for your health"

The Hill, Washington, DC, 12/02/12, "Patient advisory board will put cost before care"

PRESIDENT OBAMA'S OBLIQUE REFERENCES TO HEALTHCARE

"I will not go back to the days when health insurance companies had unchecked power to cancel your policy, deny your coverage, or charge women differently," was how President Obama summed up the ACA (Obamacare to opponents). It is why many believe the president may feel that the ACA in its present form overshot the mark and is prepared to reform it if the ACA survives the courts. We are particularly interested if Congress is exempting itself, staff, and favored others from coverage by the ACA, supposedly so good that it was made mandatory for the rest of us.

We also remember something else President Obama said in the autumn of 2009: "I will ensure that no government bureaucrat gets between you and the care you need." The trouble is that the IPAB does just that, "gets between you and the care you need." That is reason enough to repeal the IPAB forthwith (or mabe even a tad sooner!).

Stay tuned! We're not finished with this subject.

See also my comments in The Hill Newspaper, Washington, DC, 1/27/2012, http://thehill.com/blogs/healthwatch/politics-elections/206325-obama-largel...