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CCHF Health Freedom eNews

April 5, 2012

Letter from CCHF's President

Even SCOTUS may not know how it will rule on Obamacare. Although it's true that the Supreme Court justices met last Friday to take a vote, history shows that the first vote is not necessarily the final vote.

According to a very interesting Associated Press article about the process, there have been cases where the justice responsible for writing the majority opinion has changed his mind, as edits from other justices flew back and forth. In 1992, Justice Kennedy initially supported prayer at school graduations and was then assigned the duty of writing the majority opinion to uphold prayer. But the end of the writing, he'd changed his mind. His opinion prohibited prayers at graduations.

Orin Kerr, a law professor and a former law clerk for Justice Anthony Kennedy (as quoted by NBC), says the justices "will take tentative votes as to how to decide the case. Based on those tentative votes, different justices will be assigned to draft the majority opinion - or perhaps majority opinions, as there are several moving parts in this case. Eventually, proposed majority opinions will be circulated among the justices: If any proposed opinion gets five votes, it becomes a majority opinion of the court."

The campaign to persuade begins. For the next three months we'll hear both sides claiming victory. On Tuesday, Congresswoman Nancy Pelosi claimed the Supreme Court would uphold the law by a 6 - 3 vote. Yet CNN legal reporter Jeffrey Toobin stuck by his doomsday prediction that the law will be overturned. The President came out swinging against the justices (see below), and within a day had to begin back peddling.

If you want to hazard a guess at the outcome, slated for late June, look at this chart. It has the number of words each justice said during oral arguments. It may be telling.

Meanwhile, the Houston Chronicle has an interesting take on the impact of health care on the Obama campaign. They predict the Supreme Court ruling will only have a modest impact and then wrote:

"That wouldn't be the case if anyone other than Mitt Romney was Obama's likeliest Republican challenger this fall. Romney, however, is singularly ill-positioned to capitalize on the issue because he championed a similar health care law as Massachusetts governor in 2006." They also note that Rick Santorum has been raising this "political dilemma" for months.

Now on to the news...

News to Know:

Presidential Intimidation; Judicial Pushback

On Monday, President Obama challenged the Supreme Court not to undo his law. He implied that doing so would be an unprecedented case of "judicial activism."  David Dow at The Daily Beast (Newsweek) goes farther, saying the Judges should be impeached if they overturn Obamacare. But on Tuesday, Judge Jerry E. Smith of the Fifth Circuit Court of Appeals shot back at the President. He demanded during a court hearing that the attorney arguing on behalf of the U.S. Department of Justice produce a letter explaining why the federal judiciary is authorized to overturn unconstitutional federal law. Specifically, the judge told the DOJ lawyer:

"I would like to have from you by noon on Thursday - that's about 48 hours from now - a letter stating what is the position of the attorney general and the Department of Justice in regard to the recent statements by the president. Stating specifically and in detail, in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review. That letter needs to be at least three pages single spaced, no less, and it needs to be specific. It needs to make specific reference to the president's statement and again to the position of the attorney general and the Department of Justice."

Unnecessary Care for Whom?

Several physician specialty groups are now saying "no" to a list of procedures. A group of nine medical specialty boards has recommended that doctors eliminate or perform less often 45 tests and procedures. Eight other specialty groups are planning to come out with their own list of so-called unnecessary treatments. On the chopping block under the Choosing Wisely initiative are various screening tests and procedures. Proponent Dr. Christine K.Cassel, CEO of the American Board of Internal Medicine Foundation, says the U.S. can pay for everyone's care as long as that care is appropriate: "In fact, rationing is not necessary if you just don't do the things that don't help."

But Dr. Eric Topol, chief academic officer of Scripps Health, a San Diego health system, tells The New York Times, "These all sound reasonable, but don't forget that every person you're looking after is unique...This kind of one-size-fits-all approach can be a real detriment to good care." This initiative by organized medicine will no doubt play into the hands of Obamacare's so-called "death panels": the Medicare Independent Payment Advisory Board (IPAB) and the Patient-Centered Outcomes Research Institute (PCORI). Patient data, financial restrictions, and now physician buy-in could be used to ration care.

Quality Hurts Patients

Speaking of one-size-fits-all treatment protocols, a new study says "better quality care hurts patients," per FierceHealthIT. Calling it a "tradeoff," researchers were surprised that "clinical quality" improvements led to unhappy patients: "Clinical quality is about doing things correctly - strict guidelines, standardization and checklists, for example - so when you consider experiential quality is about customizing health-care delivery to an individual patient's needs, there is a tension there."  [emphasis added.]

Thus, medical treatments are being standardized, while customized care for individual patients is being drummed out of the system. However, if your providers explain it to you the right way, the researchers say you'll be happy about it: "...patients are able to understand and appreciate the standardization in hospitals if they experience better levels of communication during their care. In other words, treating patients well enables them to better perceive when they are getting the 'correct' clinical care," says the lead author of the study.

The "Bundling" Boondoogle

Bundling is a new payment mechanism under Medicare and Obamacare. It means one fee is paid for a bundle of services. There are no individual charges for individual services. However, doctors and hospitals will not be allowed to decide what kind of bundles to create, or what kinds of services are in each bundle. The government will decide. Critics say there are least four problems with bundling related to patient care.

Greg Scandlen, writing in John Goodman's blog, reminds us that doctors and hospitals have long practiced bundling with a single charge for an office visit. Will bundling save money? Not likely. Using Doug Short's dramatic chart on higher education, Mr. Scandlen notes how education costs have risen twice as fast as health care. Yet the entire higher education system is based on bundling. The only way to bring costs down is to eliminate most third-party financing and to put dollars and decisions back in the hands of patients. So easy to say. So politically hard to implement. But not impossible.

Mexican Health Care Anyone?

On Monday, President Obama and Mexican President Felipe Calderon were together with Canadian Prime Minister Stephen Harper. This was the same day the President tried to intimidate the U.S. Supreme Court over Obamacare. Mexico's president suggested that if Obamacare is overturned, America should adopt the Mexican health care system.

Any takers? In 2000, in a very biased report, the World Health Organization (WHO) ranked Mexico as #61 out of nearly 200 countries. It ranked Canada #30 and America #37. But deep in the report, the WHO had to admit that America is actually number one (CCHF report). It ranked America first in responsiveness to patient needs for choice of provider, dignity, autonomy, timely care and confidentiality. That is the excellence that will be destroyed under Obamacare, continued third-party payment for every medical expense (health plans/Medicare/Medicaid) and the impending "Choosing Wisely" restrictions on access to customized care. (see above)

News Release of the Week

Obamacare Fails Four Key Tests

St. Paul, Minn. - Last week, the Supreme Court heard three days of arguments on whether the Affordable Care Act, which requires all Americans to purchase health insurance by 2014, is constitutional.

Opponents of Obamacare, like Twila Brase, president and co-founder of Citizens' Council for Health Freedom (CCHF), a patient-centered national health policy organization based in St. Paul, Minn., hope that at least the individual mandate portion of the law will be thrown out, if not the entire Affordable Care Act.

"This was a historic week for health care - and for the U.S. Constitution," said Brase, who submitted an Amicus brief that the Supreme Court took into consideration, along with others, when deciding on the constitutionality of the health care plan last week. "For three days, Obamacare was on trial in the U.S. Supreme Court. The justices will rule by the end of June, and the arguments and expert testimony during the hearings were certainly insightful regarding the controversial - and unconstitutional - individual mandate."   Continue reading

"Read of the Week"

Two extremely interesting articles to read this week:

The Great Experiment

Why Obamacare Will End Health Insurance as We Know It

Action Items:


If doctors and other providers do not create and use certified EHRs as outlined by HHS, they will face financial penalties beginning in 2015.

Public comments can be submitted by May 7, 2012.  Be sure to refer to file code CMS-0044-P:

  • Electronically:  Visit and follow the "Submit a comment" instructions.
  • Regular mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-0044-P, P.O. Box 8013, Baltimore, MD 21244-8013.   HHS notes, "Please allow sufficient time for mailed comments to be received before the close of the comment period."
  • Express or overnight mail: Centers for Medicare & Medicaid Services, Department of Health and Human Services, Attention: CMS-0044-P, Mail Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.

Some questions to consider in submitting public comments:

  • Do you want your physician to be forced to create an EHR for you and share data electronically, or pay a financial penalty?
  • Should our tax dollars be used for this coercive policy?
  • What type of patient identifiers does HHS intend on requiring (use of Social Security numbers, driver's license or other data?)
  • Who owns the EHRs created about individual patients?
  • Don't we need stronger privacy rights, since HIPAA actually allows the sharing of electronic data without patient consent for many purposes?
  • Why can't individuals maintain a confidential relationship with doctors and tag data "very restrictive" without penalizing physicians?  

Further Information on this Topic:

A 5-page summary of the 132-page federal rule is available here.

All told, if doctors and other providers do not create and use certified EHRs as outlined by HHS, they will face financial penalties beginning in 2015.  The proposed rule states, "The investments needed to meet the meaningful use standards and obtain incentive funding are voluntary, and hence not 'mandates' within the meaning of the statute. However, the potential reductions in Medicare reimbursement beginning with FY 2015 will have a negative impact on providers that fail to meaningfully use certified EHR technology for the applicable reporting period."  A timeline of the EHR Incentive Program is posted here.

The proposed rule also states, "We further estimate that EPs will spend approximately $54,000 to purchase and implement a certified EHR and $10,000 annually for ongoing maintenance according to the CBO."

While the rule proposes to force physicians to share private data or face a financial penalty, the data will be collected electronically with the ability to allow it to be tagged "very restrictive," according to a report by

Featured Health Freedom Minute:

Not Complying is Not Illegal

During the first Supreme Court hearing on whether not buying insurance incurs a tax or a penalty, Justice Kagan asked Obamaʼs attorney: "If someone didnʼt buy the mandated insurance and paid the penalty," and was later asked if theyʼd ever violated a federal law, "what would the answer be?" The attorney said "no."    Continue reading

Twila Brase broadcasts a daily, 60-second radio feature, Health Freedom Minute, which brings health care issues to light for the American public. Health Freedom Minute airs on the entire American Family Radio Network, with more than 150 stations nationwide in addition to Bott Radio Network with over 80 stations nationwide.

Click here to listen to this week's features.



Citizens' Council for Health Freedom
161 St. Anthony Avenue, Ste 923
St. Paul, MN 55103
Phone: 651.646.8935 • Fax: 651.646.0100

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