American Society of Dermatology
2721 Capital Ave.
Sacramento, CA 95816-6004
Phone: (916) 446-5054
Message: (561) 873-8335
Fax: (916) 446-0500
American Society of Dermatology, Inc.
A Voice for Private Dermatologists Since 1992

March, 1997

ASD v. Shalala Update

by Chester C. Danehower, MD
Peoria, IL

Recently I discovered a particularly disturbing article in the November, 1996 issue of the PHYSICIAN’S MEDICARE GUIDE NEWSLETTER. The headlines proclaim boldly “AMA’S Involvement in Fee Schedule Updates Permissible”. This article states that ASD v. Shalala was rejected by the U.S. District Court for the District of Columbia which is true. The final paragraph reads as follows: “The court ruled that the fee schedule law prohibits judicial review of fee schedule codes and values. The court also said that the Health Care Financing Administration (HCFA) was not improperly using the AMA committees because it relied on them merely for advice and did not control their activities.”

It strikes me as very strange how the truth can be told and yet how it is still not the truth. For example, it appears from this article that the case has been completed, and that no further legal action is to occur. Well, for those of you who do not already know, oral argument in this case will be heard in the United States Court of Appeals for the District of Columbia on April 14, 1997 at 9:30 a.m. The suit is alive and well, and quite frankly the ASD has an excellent chance of winning!

Furthermore, the first sentence of the above mentioned paragraph which states that judicial review of fee schedule codes and values is not permitted raises a serious constitutional issue; that is the separation of powers within our government. The article tells the truth, but does not mention that Congress has no right under current law to make a law that prohibits judicial review. An action of this nature sets a very dangerous precedent, and is not acceptable in a free society!

Finally, the last sentence in the quoted paragraph states that the committees were used merely for advice. I must be missing something, because I thought that is what the word advisory means in the Federal Advisory Committee Act (FACA). For the purpose of the FACA, the Current Procedural Terminology (CPT) editorial committee, the CPT editorial advisory committee, the Relative Value Update Committee (RUC), the RUC Advisory Committee, and the physician’s multi-specialty committee all give every indication of being FACA advisory committees, and therefore must be open to the public. From ASD's standpoint these AMA advisory committees to Health and Human Services (HHS) are acting in violation of the law.

For those of you who think that this lawsuit is not important, I would like for you to consider the recent action in Florida by its Medicare carrier. As I am sure you are aware, this carrier has attempted to interfere in the doctor-patient relationship by directing how actinic keratoses will be treated. To the credit of both the Florida dermatologists and the American Academy of Dermatology (AAD), a lawsuit has been filed for relief in this matter. As important as this latter lawsuit is, its importance pales in comparison to the ASD lawsuit, because it only deals with a single issue. The ASD lawsuit goes to the heart and soul of the problem; the Resource Based Relative Value System (RBRVS) and CPT coding. Perhaps if we had received support from the AAD in ASD v. Shalala, the actinic keratosis debacle may have never occurred. We need to find ways to work together instead of pulling against one another.
Editorial - GET MAD!
by M. John Hanni, Jr., CAE
Executive Director

The next time you complain that your medical society (or societies) are doing nothing for you, it would be well to remember that YOUR organizations are YOU.

At a recent medical society meeting a speaker pointed out to the group of physicians present that in the room with him were enough brains to solve collectively any problem confronting our profession. But: With this ABILITY comes RESPONSIBILITY.

In times of crisis in the past, phyicians have been able to come up with innovative ways to deal with problems by facing them and developing programs and solutions. They did not accomplish this by sitting back and saying, "Isn't this terrible what they are doing to us." Instead of passive acceptance of intolerable restraints, the reaction was a fierce unwillingness to compromise their principles and the well being of their patients. The officers, boards and staff of medical societies can lead and enable. But all members must be creative if successful solutions are to be found.

Your input is essential. You can express your thoughts and make your comments and suggestions to the ASD Board and to our membership. Send letters to the Board or to the FrontLine. They will be read and published. Use the Forums on our website. But start to think in terms of solutions...and don't be shy!

Be prepared to create, innovate and participate. Be prepared to use constructively the brains and intelligence you were given in such large measure.

Your patients and profession need this. So do your family and your future.
Is this our future?
by Edward R. Annis, MD
Miami Shores, FL

Every now and then I muse a little history wherein I had at least tangential involvement. Over a period of six years during the late sixties and early seventies, I was privileged to serve as a Director of the Chamber of Commerce of the United States in Washington, DC. As the only physician on the Board, I was appointed Chairman of a Committee for the Nations Health.

The Health Committee was large and was comprised of representatives from some of the nation's largest companies such as the big three auto makers, General Motors, Ford and Chrysler.

On several occasions, I implored those business leaders to reconsider a widespread policy of first dollar coverage for health and medical care. Such coverage for their employees and their families totally removed financial responsibility for almost every degree of medical care. I voiced the considered opinions of many medical practitioners that in the absence of a need to pay for such services there is no way that doctors could contain excessive demands, excessive use and sometimes abuse.

Having made this request on several occasions, I clearly recall the day when General Electric's representative stood up to say: "Dr. Annis, you have brought this matter before us several times and I am not saying you are wrong, but you debated labor leader Jim Carey, you debated labor leader Walter Reuther and you should know as well as we do that we lost that battle over the labor-management negotiating table and once they get it they never give it back." I thanked him, but also opined that the day would come when costs alone would dictate some changes in that policy.

The December 9, 1996 issue of the Wall Street Journal had a lengthy article starting on the front page headlined: SEEKING A CURE.

Auto Makers Attack High Health Bills With New Approach. They treat the Providers like other Suppliers, try to help them cut costs.

When I first saw the headline, I hoped that some of the idea seeds planted more than twenty years ago had finally taken root. Quick disappointment followed as I read further that the proposed solutions were not to correct the fundamental defects, but rather were to put additional burdens on so-called health providers, mainly doctors and hospitals.

The article continued: "After years of frustrated efforts to cut burgeoning health-care outlays, U.S. auto makers are quietly taking matters into their own hands. The problem is immense! G. M.'s health bill for active and retired employees runs $1,200.00 for every car it builds in the U.S., $700.00 more than it spends on a car's steel. Chrysler Corporation's medical costs are $700.00 a car, and Ford Motor Co.'s is $510.00; both have fewer retirees than G.M. does. Those outlays compare with as little as $100.00 per car for the U.S. factories of foreign auto makers, which have younger, healthier workers and hardly any retirees, and with next to nothing for producers in countries with socialized medicine."

"Frankly, that is why there is such a sense of urgency" says James Cubbin, G. M.'s health care Czar.

"In 1993, U. S. auto makers reduced salaried employees' health care benefits in preparation for a major assault on those of the United Auto Workers. But, just as in the past, the industry backed down after the U. A. W. made clear that it would strike rather than give up its gold-plated health care plans with no co-pays, no spending limits and freedom to see any doctor anywhere."

The Wall Street Journal continued "auto-company experts suspect that when workers or their dependents demand certain services, knowing that their company medical care will ensure full payment medical professionals find it tough to argue that some of the services may be excessive or unnecessary." That observation was further supported by a quote from a 432 page Community Assessment Fact book completed in May which "found that costs are high largely due to service utilization."

A sub-headline reads: "Basic Problem Remains."

"Skeptics wonder how much G. M. can accomplish if it puts most of the onus for change on care-givers rather than curbing its own employees' use of health care."

The president of a Flint, Michigan large health care system stated "When you talk to G. M. there are some fundamental problems that emerge. Number one is that there is no discussion of any co-pays or deductibles and cites studies showing that patients don't think twice about whether they really need treatment until they have to pay part of it themselves."

Flint's Dr. Blight says, "A lot of people have first dollar coverage. They think that it is a right given to them to put their Blue Cross card down and get what they want. I think physicians have fallen into giving them that."

Another recent example of rash business judgement rated headlines when the nation's second largest computer service, America On-Line, endured a six hour relative blackout, leaving many of its eight million subscribers without access to electronic mail.

Apparently, they had recently switched from a fee for service basis to a monthly flat rate of $19.95. It was when the 1.5 daily hours spent online in September 1996 escalated to 4.2 million daily hours by January 1997 that the foregone conclusion was precipitated. It was reported that average members doubled time spent online and some remained permanently connected to the service.

Also inevitable was the rapid surfacing of members of the Trial Bar to bring class action suits, allegedly on behalf of users in Florida, New York, Chicago and Los Angeles. Their predictable claims that the company knew or should have known that a flat rate payment plan would drastically increase both membership and demand.

Very low costs border on first dollar coverage as built in magnets for abuse when someone else pays most of, if not all costs.

For the Big Three Auto Makers and the others like them, we must relentlessly repeat the message that unless medical care is severely compromised by delay, denial or greatly diminished quality, there is no way that cost escalation can be controlled until its basic and underlying defects have been corrected.

In this instance business is following the same course of denial exhibited by law makers who refuse to correct the primary and fundamental flaws underpinning Medicare.

Medicare continues to promise entitlement to the most rapidly growing segment of the population, namely those over 65 years - rich and poor alike. Meanwhile the burden of payment is harnessed on the financial shoulders of a diminishing percentage of younger workers.

For quality medical care to continue, for greater prevention and more cures, both business and government must eventually correct the inadequate and unsound structures which are incapable of supporting their programs.
by Chester C. Danehower, MD
Peoria, IL

At the recent interim meeting of the American Medical Association (AMA) that was held in Atlanta, the AMA leadership was most excited about their new American Medical Accreditation Program (AMAP). This program is a well-intentioned program that will certify physicians as being qualified to provide medical care. The excuse for this new service is that physicians are inundated by requests from managed care programs for professional information regarding their suitability for participation in these programs. It looks good on the surface, because all information on a given physician can be obtained from one source, therefore substantially reducing paperwork by physicians. Of course, on-site inspection will be part of the process, and a fee will be charged by the AMA for this service. After all, isn’t it better for doctors to oversee doctors rather than for someone else to do it?

Unfortunately, I have a very uneasy feeling about this most recent intrusion into the practice of medicine by the AMA. I remember too vividly their call for a price freeze on medicare fees in 1984. I complied and I am still paying for this mistake. I also remember all too clearly their involvement in the development of the Resource Based Relative Value System (RBRVS) and the profits the AMA has made and continues to make through its involvement in the Current Procedural Terminology (CPT) coding process. The question naturally arises whether or not AMAP is just a money making scheme to benefit the AMA and not physicians or their patients. Perhaps AMAP is their attempt to abolish the National Practitioner Data Bank. If so, it portrays very poor judgement on the part of the AMA because it will have the potential to be the National Practitioner Data Bank, but in just another form that is run by the AMA and not the federal government.

I recently read an advertisement in the January/February 1997 issue of “Living Fit”. It begins with “GIVE YOUR MD A CHECKUP” and then goes on the describe how 80,000 people die each year due to medical negligence, and further describes how information can be obtained on any physician in the United States through Medi-net by paying $15 to the AMA. By the way, the phone number is (800) 972-MEDI. What are the leaders of the AMA thinking about? I do not question their integrity, but I seriously question their judgement. If this advertisement is an example of how AMAP will be used by the AMA, then I am extremely concerned that AMAP will start out as what is perceived as a service to physicians, but will end up as another tool to denigrate and control physicians. Certainly the consumer advocates will be thrilled; they can witch hunt until their hearts are content. In the process, the AMA will make a great deal of money, and because of the profit involved, even if AMAP should turn out to be another disaster for our profession, they may subconsciously deny that it is. Money can cloud the best judgement. In my opinion, AMAP will just be another nail in the coffin of the medical profession! I quite frankly do not think the AMA or any other certifying body has any business snooping around in any doctor’s office! When that occurs it is the end of our profession! The end may be near.
Board Hi-Lites

The ASD Board of Directors continues to meet on a monthly basis, primarily by conference call with face to face meetings several times a year. The April meeting will be held in Washington, D.C. on Sunday, April 13 so that the Board members can also be present for the court hearing on the lawsuit appeal the following day.

ASD Members who are intested in being present at the hearing on the appeal in the case of American Society of Dermatology, Melissa K. Clements, MD, and John A. Kasch, MD vs. Donna Shalala, Secretary of the United States Department of Health and Human Services, are invited to attend. Please call the ASD office at 309/676-4074 for details.

Plans are being made to complete an outstanding program for the 1997 Annual Meeting in San Antonio. Those who attended the last meeting in San Diego agree that the program was equal or superior to any offered physicians anywhere in the country, and 1997 will build on that base. More information will continue to be sent to members who are encouraged to register early.

Consideration is beginning for the site for the 1998 meeting which will be held on the East Coast or possibly in the Midwest. Suggestions from members will be considered seriously.

The 1996 Annual Audit has been reviewed and approved.

Membership categories have been reviewed. Qualified dermatopathologists are eligible for full membership and a category has been created for non-dermatologists who subscribe to the Mission Statement.

The subject of MSAs continues to be of concern to the Board which is pursing its investigation of options available for members. President elect Don Printz's presentation at the last Annual Meeting has provided guidelines for several members who have formed their own MSA. A tape of this presentation is available through the website or this edition of FrontLine.
It's As Simple As Saying NO!

Have you ever wondered why our medical profession is so unbelievably impotent in warding off the attacks of those who would steal our profession? To put it simply we are divided and have no clear cut goals or defense. We are selfish beyond belief, and have no concern about our fellow physicians. We espouse that we care about the welfare of our patients. I think this latter statement is true; however, we have a strange way of demonstrating it. We all too quickly join the ranks of those employed by managed care and allow ourselves to accept assignment from Medicare in an attempt to make the best out of a bad situation. We know that we are giving away control of our profession to those who are far more concerned about the bottom line than the proper care of our patients. We cower in fear with each new ridiculous governmental regulation rather than attempting to abolish it. We even criticize rather than support those physicians who have the courage to stand against this oppression. We make no effort to become involved; we just hope that the problems will go away, and that we will continue to have a reasonable standard of living. As long as we continue to have this reasonable standard of living, we will accept the threats of inappropriate fines and jail sentences. We will accept the existence of the National Practitioner Data Bank, CPT coding, and the RBRVS without even a whimper even though we know that they are all ridiculous insults to every physician in this country and that they do nothing to enhance patient care. We even accept that rationing of health care is inevitable even for those who can afford to pay for the care. After all, that will be in the future. Well, the future is close at hand! I am not painting a pretty picture of our profession; however, I think that it is fairly accurate.

We must begin to think in terms of what is truly best for our patients and our profession. Our giving our profession away to a bunch of “bean counters” is certainly not in the best interest of either. It sickens me to watch how our once proud profession is being squandered by the physicians of this country for short term gain or for them to make the best out of a bad situation. By the way, the latter was also the excuse of the Nazi doctors during World War II. We must regain our conscience. We must learn to say no to those who would destroy our profession. We must first let our enemies know that we have had enough, and that we will no longer tolerate their incessant attacks. If we will come together as one, putting aside our petty differences, we can save our profession. However, the good of our profession and our patients must come before our own good. We must embrace the concept of "service above self." We must say no to those who would buy or attempt to take our profession! We must say no to those in our profession who would sell it or give it away!