Obamacare Begins — In Idaho

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When the Regime sets prices, this is called “applied compassion.”

When producers organize to complain about price controls, and then freely decide not to offer their services at the artificially low price, this is called “a criminal conspiracy to fix prices.”

This is the central claim of the “consent decree” inflicted, at gunpoint, on a group of Idaho orthopedic surgeons by the Obama Regime — with the eager collaboration of the Idaho State Attorney General. Under the terms of that extorted agreement, it would be tantamount to a criminal offense for a doctor to complain to his peers about regulatory actions that may drive accomplished medical specialists out of business.

This is just one aspect of the multi-faceted ugliness on display in the federal crackdown on a group of Idaho orthopedic surgeons who rebelled against government-imposed price controls on medical treatment.

The Idaho Industrial Commission imposes the “fee schedule” for worker’s compensation claims. Rather than permitting the market to set prices for various treatment options, prices were set according to an abstruse formula called the “Resource-Based Value System” (RBVS).

As the Justice (sic) Department explained in a May 28 legal filing, the RBVS “uses a u2018relative value unit’ and a u2018conversion factor’ to determine physician payment. The relative value unit measures the resources necessary to perform a medical service…. The conversion factor is a set dollar amount, say $100. A physician’s payment for any medical service is generally calculated by multiplying the relative value unit by the conversion factor. For example, a physician would receive $500 for a medical service with a relative value unit of 5 and a conversion factor of $100.”

As an assembly of quasi-divine bureaucratic beings, the Idaho Industrial Commission apparently determines the “relative value unit” and “conversion factor” for medical reimbursements through direct revelation.

In 2006, the Commission’s Olympian deliberations yielded a “conversion factor” of $88 for many of the common orthopedic procedures covered through government-mandated worker’s compensation insurance.

The revised fee schedule was to go into effect that April 1 (the symbolic birthday of anybody who believes government to be a necessary and useful enterprise). It would have resulted in sharply reduced reimbursements to orthopedic surgeons.

Predictably, a group of specialists in that field failed to appreciate the supernal wisdom contained in the Commission’s freshly minted revelation: Betrayed by their faithless eyes, the physicians noticed that new fee schedule would probably put more than a few of them out of business. They compared notes and decided to organize an effort (coordinated through the Idaho Orthopedic Society) to change the government-imposed fee schedule.

Through meetings, phone conversations, and e-mail messages, a number of orthopedic surgeons agreed to withdraw from the workman’s compensation insurance program, and to urge the Commission to revise the reimbursement rate to a more realistic figure.

No doctor was coerced or otherwise pressured into opting out; in fact, specialists continued to provide treatment to emergency room patients under the new, lower rates.

In February 2007, amid widespread defections of orthopedic specialists from the workman’s comp program, the Commission consulted its Urim and Thummim and revised its fee schedule again, enacting a 61% increase over the artificially low rate it had set a year earlier. Satisfied, doctors rejoined the program — even as Leviathan quietly prepared to punish them for their impudence.

In the American political lexicon, the activities in which the Idaho orthopedic surgeons engaged are described as petitioning government for redress of grievances, a civic function explicitly protected by the Constitution. According to the Obama Regime — and, let us not forget, the Republican-dominated Idaho state government, which collaborated in this totalitarian initiative — the doctors engaged in “a combination or conspiracy in restraint of trade or commerce” as defined by the detestable Sherman Act.

In the government’s conspiracy theory, every meeting or communication among the defendants was an “overt act” in the furtherance of that supposed criminal design. Thus the terms of the settlement imposed on the surgeons by the “Justice” Department are designed to criminalize the exercise of constitutionally protected rights, and enforcement of the settlement will require Stasi-grade intrusive surveillance.

As described in the “Final Judgment” announced on May 28, “Prohibited Conduct” on the part of the defendants includes any communication among orthopedists — whether direct or indirect — regarding any government-mandated insurance fees or contract terms, or decisions by any health care providers to withdraw from those programs.

A list of “Permitted Conduct” — remember, in a totalitarian system, government specifies what its subjects are allowed to do — graciously informs the victims that they are “free” to consult with their peers about matters of patient care.

Interestingly, they are also permitted to discuss “legislative, judicial, or regulatory actions, or other governmental policies or actions,” pursuant to “the Noerr-Pennington doctrine.” This provision complicates matters considerably, given that the federal crackdown against the orthopedic surgeons violates that doctrine, under which the actions of the Idaho physicians were entirely appropriate.

In United Mine Workers v. Pennington (which built on an earlier ruling in Eastern R. Conference v. Noerr Motors), the Supreme Court held that “Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition.”

The behavior of the Idaho Orthopedic Society was far more innocuous. They weren’t enlisting government aid to eliminate competition; they were simply trying to get a regulatory body to remove its boot from their necks. However, in the proto-fascist system now afflicting us, the former is entirely acceptable, and the latter is considered a grave offense against the “common good.”

Accordingly, the Idaho physicians to whom the Final Judgment applies are explicitly permitted to carry out “joint efforts to influence public officials,” while at the same time expressly forbidden to do so.

How are the doctors supposed to comply with the Final Judgment, given that its guidelines distinguishing “Prohibited” from “Acceptable” conduct make no sense? This is where the Regime engages in its preferred form of job creation — that is, creating invasive busywork for state-employed commissars.

The task of “determining or securing compliance” will be assigned to “authorized representatives of the United States Department of Justice or the Office of the Idaho Attorney General (including their consultants and other retained persons),” explains the Final Judgment.

These zampoliti (the Soviet Russian term for “political officers”) will be given the supposed authority “to require that each defendant provide hard or electronic copies of all books, ledgers, accounts, records, data, and documents … relating to any matters contained in this Final Judgment; and to interview, either informally or on the record, defendants and their officers, employees, or agents, who may have their individual counsel present, regarding such matters.”

In addition, the victims in this arrangement “shall submit written reports or a response to written interrogatories, under oath if requested, relating to any of the matters contained in this Final Judgment….”

The “Consent Decree” will be in effect for ten years. To understand what this would be like, it’s helpful to imagine enduring a decade-long IRS audit, with the Feds reserving the option to prolong the torment as they see fit.

All of this is merely a grace note to the symphony of suffering called “Obamacare.”

It’s important to recognize that although Obama may be waving the baton, the score he’s conducting is a thoroughly bipartisan composition, building not only on New Deal and Great Society themes but also the corporate socialist HMO system developed under Richard Nixon.

Also worthy of note is the contribution made by the loathsome Senator John Sherman, the Republican author of the corporatist Sherman Antitrust Act — a supposed monopoly-busting act that actually enables the Regime to wage war against any business interest that is not part of an officially protected cartel.

Idaho’s Republican Attorney General — a putative hero in the struggle to interdict Obamacare — eagerly collaborated in the persecution of Idaho’s renegade orthopedists. And someone in the Republican-dominated Idaho political establishment carefully shepherded the physicians into the embrace of Mark J. Botti, an attorney from Akin, Gump who until recently worked for the same section of the Justice (sic) Department that staged this pogrom.

Notes antitrust law commentator Skip Oliva:

“Botti ran the exact same section that prosecuted his clients; he drafted a report that affirmed the exact same policies used to prosecute his clients; and he also advises an international antitrust group whose stated purpose is to expand the power of national antitrust regulators. Something tells me Botti wasn’t exactly the most zealous defender of his clients’ interests — at least not the clients who are currently paying him.”

As “defense” counsel in this matter, Botti’s role was exactly the same as that of a defendant’s advocate in the Cardassian court system: Collaborate with the prosecution to validate the infallible wisdom of the state through a pre-ordained guilty verdict, and help the defendant accept that verdict with proper submissive humility.

The Federal jihad against Idaho’s rebel orthopedic surgeons is a field test for the coming regulatory and legal assault on physicians under Obamacare. One eminently predictable — and most likely intentional — result of that onslaught will be health care rationing as the pool of health care providers is depleted.

The next logical step would be to criminalize a doctor’s decision to leave his profession because of price controls. After all, if a doctor can’t withdraw from a government-mandated health coverage program, why should the government permit him to withhold his services by choosing another profession?

That question may prove to be academic. At the rate the Regime is destroying the economy, in short order there won’t be any other professions to choose from, or any wealth to plunder in order to fund grandiose social engineering schemes.

William Norman Grigg [send him mail] publishes the Pro Libertate blog and hosts the Pro Libertate radio program.

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