Over-Regulation --- Will President Bush Lighten the Burden?

Robert J. Cihak, MD
Article Type: 
President's Page
Spring 2001
Volume Number: 
Issue Number: 

In his campaign, President Bush pledged to reform the health care system to make it patient-driven, not government-run" to leave "medical decisions in the hands of physicians instead of insurance companies," and to offer "more and better choices to consumers."

Even if he's extremely successful, current private and government programs will continue to harass patients and physicians for many, many years. An overnight revolution in health insurance and government programs would still take many years before laws and regulations could be rewritten and bureaucrats could be broken of their ingrained habits. And this revolution will not take place unless there is political will and strength.

Many adverse regulatory changes are already rolling down the hill towards us. For example, the new "privacy" regulations would allow federal law enforcement officials open access to private medical records. Under these regulations, records can be released without notification to the patient. As happens all too often, the title of the regulations and the content contradict each other. If patient privacy was respected, the patient would be able to assess damages against lawbreakers. But this is explicitly not allowed under these new regulations --- only the government itself can bring lawbreakers into court and assess damages.

Another new regulatory threat to medical sanity is the ex-president's imposition of new language regulations on physicians.

In the name of "civil rights," physicians who accept Medicare or Medicaid will be required to provide language translation for patients who do not understand English. Never mind that a "right" is something that the individual can enforce without taking away from others. Never mind that such a "right" has not previously been described in the United States Declaration of Independence or Constitution. This topsy-turvy interpretation is once again due to lawyers and courts turning the meaning of words and laws upside down.

The federal government's Office for Civil Rights (OCR) claims to provide "Policy Guidance" to recipients of federal dollars at http://www.hhs.gov/ocr/lep/guide.html.

The practice of not having translators available "may violate Title VI of the Civil Rights Act of 1964" according to the guidance. "May violate" is not helpful guidance.

This "guidance" goes on: "Even if the interpreter possesses the necessary language and comprehension skills, his or her mere presence may obstruct the flow of confidential information to the provider. This is because the client would naturally be reluctant to disclose or discuss intimate details of personal and family life in front of the client's child or a complete stranger who has no formal training or obligation to observe confidentiality." Now, I'm obviously lacking in English language proficiency myself, because I can only conclude for this language that the doctor has to know all the possible languages that patients might want to speak or he's breaking the law, which is nonsense.

They say these new regulations are based on an interpretation of Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. Section 2000d et. seq. which states: "No person in the United States shall on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

Judges have ruled that recipients of federal financial assistance, such as doctors accepting Medicare or Medicaid dollars, have an affirmative responsibility to provide limited English proficient persons with "meaningful opportunity to participate in public programs." The courts have also found that requiring the use of English only is often used to mask national origin discrimination.

It's a big leap from requiring proof in a court of law to a presumption that not having an army of translators breaks Civil Rights law. Yet, the bureaucrats and judges are making that leap. These days, "discriminatory effect" without intention is enough to get you in trouble with the feds --- if you take federal dollars.

In her prophetic book of fiction Neomorts, Dr. Jane Orient portrays a nation so paralyzed by central control that everyone knows about and uses illegal, underground transactions to meet everyday needs. As everyone knows about this "illegal" activity, prosecution is spotty and at the whims of the prosecutors serving political, personal and special interest goals.

"Flexibility" is a double-edged sword in the hands of government officials. Much depends on the prosecutorial (or persecutorial) attitude or whims of government officials with enforcement power.

What can be done while waiting for The Revolution which may never come? At the very first hint of an investigation or audit, contact the AAPS Limited Legal Consultation Service for guidance. Review our publications and website http://www.aapsonline.org for examples of the threats and damages suffered by others. You owe it to your patients to be forearmed. If you're locked up in the slammer, you won't be very helpful to your patients. Also encourage your colleagues to join AAPS so that they can be more aware of these threats and be prepared for the expected, repeated assaults of government.

Dr. Cihak is the President of the Association of American Physicians and Surgeons (AAPS), and a radiologist in Aberdeen, Washington. His column is distributed by WorldNetDaily.com and Scripps-Howard News Service.

Originally published in the Medical Sentinel 2001;6(1);10. Copyright©2001 Association of American Physicians and Surgeons (AAPS)

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