Friday, September 14, 2018

Remembering Dr Bernard Carroll



Dr Bernard Carroll passed away on September 10, 2018.  Dr Carroll had a distinguished career, so it was a surprise and delight that he also chose to be a stalwart Health Care Renewal blogger.  He was with us since 2005, contributing insightful, pithy, provocative and important posts.  He also authored some of our most widely read posts.  Most viewed was: JAMA Jumps the Shark.   His most recent post was Corruption of Clinical Trials Report: A Proposal.   All his posts can be found here.


His obituary just appeared in the British Medical Journal. It began

A pioneer in biological psychiatry, more recently Bernard Carroll (‘‘Barney’’) became a withering critic of its compromised ethics and corruption by industry.

He was a scientific skeptic

A rigorous scientific sceptic, even about his own work, he refrained from claiming that the DST explained the aetiology of melancholia. He was critical of ill informed challenges to its clinical uses but opposed exaggerated claims for its role as a screening test.

He was a renowned teacher, mentor, and academic leader

Barney was a great clinical teacher and mentor, who never hesitated to say: 'I don’t know the answer to that—let’s look into it.' No one had a better command of the scientific literature or was better able to translate it to the complex exigencies of clinical practice. By his quiet example, Barney influenced hundreds of psychiatrists, psychologists, social workers, and nurses, as well as basic neuroscientists, to become better clinicians, researchers, and educators. He was rigorous and demanding, but in the most nurturing and affable way.

In 1983 Barney accepted the chair of psychiatry at Duke University. He turned a respected department of psychiatry into a great one—recruiting new faculty members, increasing external grant support 10-fold (raising it to sixth in the US), improving clinical services, and forging research and residency training partnerships with the public sector. I followed Barney as chair and found it to be one of the easiest jobs in the world. All I had to do was coast on his coat tails.

He was a campaigner for accountability, integrity, transparency, honesty and ethics

During the past 20 years, Barney became a critic of weak science, of ethical lapses, and of industry’s corruption of the research enterprise. He coined the term 'experimercial' to describe clinical trials that were really disguised exercises in marketing. He relentlessly exposed undisclosed conflicts of interest, hidden commercial promotions, inadequate research designs, biased analyses, misleading conclusions, exaggerated claims, and ghost writing.

Barney became the conscience of psychiatry. With the frequent collaboration of Robert Rubin, he outed many high profile academic opinion leaders who had been co-opted by commercial interests.

Barney never flinched in his David and Goliath battle to restore truth and integrity to the psychiatric research enterprise. His exposés comprised ethics critiques as well as aesthetic disapproval of degraded standards and tawdry behaviour.

Barney’s 'right' prevailed against institutional and commercial 'might.' He helped to force the current upgrades of editorial oversight and full disclosure now demanded by Nature Publishing Group, by AMA journals, and most journals. The publicity surrounding Barney’s exposés triggered the conflict of interest inquiries conducted by Charles Grassley, chair of the US Senate Finance Committee, which had a profound impact on recalibrating ethics standards in all medical specialties. As he left us, Barney was encouraged by current trends towards improving transparency and increased integrity.

He persisted

Looking to the future, on the scientific side Barney cautioned against the loss of independent investigators and the diversion of research resources by 'big science' consortiums. On the ethics side, Barney’s main unfinished work is an ongoing petition to Congress to update US Food and Drug Administration oversight of analyses and reporting of clinical trials.

Barney is remembered as a fair and generous colleague, an honest broker in review committees, a generative and avuncular mentor, a constant source of good ideas, a meticulous academic craftsman, and a tireless servant to the field. He did endless pro bono advocacy, editorial and committee work, and served as president of three professional societies. Barney was a great raconteur, a jolly companion, a dedicated writer of limericks, a courtly gentleman, a devoted husband and father, a wonderful friend, and a man for all seasons. He died as he lived—with grace, courage, and fortitude. Barney leaves his wife, Sylvia; a daughter; and a son.

Bernard J Carroll (b 1940; q 1964; MD, PhD), died from cancer on 10 September 2018

Investigative journalist Paul Thacker provided these memories:

Since Barney retired as Chair of Psychiatry at Duke, he became a very important resource to a small number of reporters and experts trying to understand corruption in medicine. I was just watching the documentary 'Bleeding Edge' about the medical device industry, and one of the devices profiled was the Vagal Nerve Stimulator (VNS). I was watching the documentary thinking, 'God, that VNS crap made it on the market. Barney blew it up in the Wall Street Journal back in 2006.' Barney was critical to a lot of movement in trying to fix things behind the scenes.

A couple years back, I was talking with Barney and asking him why he thought so many people in medicine behaved the way they did, doing things when it was obvious patients were either going to harmed or given some treatment that was likely pointless but expensive. Barney always had a colorful way of explaining these things.

"When you get old, much of what you'll have are memories of what you did, and what you added during your time here. These people won't have s* but f* money. They didn't add a f*ing thing!'

I think Barney added a lot. He was a great guy, who added a whole lot to our understanding of medicine while retired.

 We will all miss him.

Wednesday, September 05, 2018

Fake Reform Foisted on Us by Those who Benefit Most from the Current Dysfunction



Introduction - No Funding for You

To better understand health care dysfunction, I interviewed doctors and health professionals, and published the results in Poses RM.   A cautionary tale: the dysfunction of American health care.  Eur J Int Med 2003; 14(2): 123-130. (link here).  In that article, I postulated that US physicians were demoralized because their core values were under threat, and identified five concerns:
1. domination of large organizations which do not honor these core values
2. conflicts between competing interests and demands
3.  perverse incentives
4. ill-informed, incompetent, self-interested, conflicted or even corrupt leadership
5.  attacks on the scientific basis of medicine, including manipulation and suppression of clinical research stuides

After that my colleagues and I have tried to raise awareness of these and related issues, now mainly through the Health Care Renewal blog.  We also set up FIRM - the Foundation for Integrity and Responsibility in Medicine,  a US non-profit organization, to try to provide some financial support for the blog.

Since we were mostly health care academics, we assumed we could get some financial support for the blog and FIRM from foundations with interests in improving health care.  Had we not identified important causes of health care dysfunction that had been largely anechoic, but once identified could be addressed, thus presumably improving health care costs, quality, and access?  It seemed reasonable at the time.

However, we failed to find any prominent foundations willing to help.  We have occasionally gotten small amounts of money from a few small foundations, but not recently.  Meanwhile we have not seen any major health care foundations supporting any iniatives by anybody meant to address any of the issues we discuss on Health Care Renewal.  In particular, while outright health care corruption seems one of the most outrageous issues we discuss, we have never found a foundation willing to take that on - at all.

 We should not have been surprised.  We later discovered that the leaders of many health care foundations had conflicts of interests which likely decreased their enthusiasm for even considering issues such as ... conflicts of interest and their risk of generating health care corruption.  (See below for further discussion.)  Recently, however, we have found some enlightenment on how such foundations, and other change agents and do gooders working the health care sphere, have managed to ignore such important problems

Why Expect Those Who Profit from Current Dysfunction to Lead Real Reform?


Last week, the New York Times published an essay by Anand Giridharadas, author of  the just published Winner Take All: Elite Charade of Changing the World.  The author's thesis was that society has handed over the responsibility for reform to those who benefit most from the status quo.

'Change the world' has long been the cry of the oppressed. But in recent years world-changing has been co-opted by the rich and the powerful.

He posited,

America might not be in the fix it’s in had we not fallen for the kind of change these winners have been selling: fake change.

Fake change isn’t evil; it’s milquetoast. It is change the powerful can tolerate. It’s the shoes or socks or tote bag you bought which promised to change the world. It’s that one awesome charter school — not equally funded public schools for all.

He suggested that the very wealthy seduce us with their dedication to change, even while sponsoring

world-changing initiatives funded by the winners of market capitalism do heal the sick, enrich the poor and save lives. But even as they give back, American elites generally seek to maintain the system that causes many of the problems they try to fix — and their helpfulness is part of how they pull it off. Thus their do-gooding is an accomplice to greater, if more invisible, harm.

What their 'change' leaves undisturbed is our winners-take-all economy, which siphons the gains from progress upward.

They have

a strong interest in convincing the public that they can help out within the system that so benefits the winners.

After all, if the Harvard Business School professor Michael E. Porter and his co-author Mark R. Kramer are right that 'businesses acting as business, not as charitable donors, are the most powerful force for addressing the pressing issues we face,' we shouldn’t rein in business, should we?

This is how the winners benefit from their own kindness: It lets them redefine change, and defang it.

In a 2017 essay in Medium which previewed the ideas that would appear in the book, Giridharadas had summarized the problem thus

change-makers [focus] on the difference they make to those they choose to help. Yet they risk avoiding the causes of the disease and remedies that would actually cure it. And they avoid these things in part because facing them could implicate powerful people, or perhaps even themselves.
This is a powerful idea.  As a society, at least in the US, we have abandoned true reform, including reform of health care, for faux reform controlled by those who would lose the most were true reform to take place instead.  We have handed the problem of excessive drug prices over to the executives of pharmaceutical companies who benefit most from currently outrageous pricing.  We have handed the problem of a dysfunctional health care insurance system over to executives of insurance companies who benefit most from high cost commercial insurance plans that cover as little as possible.  We have allowed corporations accused of unethical and criminal practices to make lax legal settlements that pretend they will be able to improve themselves without penalties accruing to the managers on whose watch the bad behavior occurred.  And we have let health care foundations led by top health care corporate managers and their cronies to sell change that matters. 

Broadening Understanding of the Conflicts of Interest Affecting Leadership of Health Care Foundations

Gridharadas has given us a broader view that explains why many big foundations fail to fulfill their glorious mission statements.

Example: the Robert Wood Johnson Foundation

For example, the Robert Wood Johnson Foundation boasts,

The inspired vision of our founder, General Robert Wood Johnson II, was to improve health and health care in America, especially for those most in need. Energized by our legacy of taking on challenging issues, we are dedicated to building a Culture of Health that provides everyone in America a fair and just opportunity for health and well-being.

Has the foundation ever really addressed ill-informed, incompetent, self-interested, conflicted or even corrupt health care leadership, or attacks on the scientific basis of medicine, including manipulation and suppression of clinical research studies?

Should we expect anything more - or less - from a foundation whose current 15 person board of trustees is chaired by:
- a retired corporate vice president and general counsel of Johnson & Johnson

and which otherwise includes:

- a retired corporate compliance officer and vice president, Technical Resources, of Johnson & Johnson

-   a surgeon who was  founder of the for-profit Columbia/ HCA, now HCA hospital system

- a retired vice president of government affairs and policy responsible for federal, state, and international relations for Johnson & Johnson.

- a retired vice president, chief information officer, and a member of and the first woman to serve on the Johnson & Johnson Executive Committee.

- and another retired retired corporate vice president of Johnson & Johnson

Example: the Bill and Melinda Gates Foundation

The Gates Foundation boasts

We see equal value in all lives. And so we are dedicated to improving the quality of life for individuals around the world.

Yet in 2006, Transparency Internationa published a report on health care corruption, which asserted that corruption is widespread throughout the world, serious, and causes severe harm to patients and society.

the scale of corruption is vast in both rich and poor countries.

Also,
Corruption might mean the difference between life and death for those in need of urgent care. It is invariably the poor in society who are affected most by corruption because they often cannot afford bribes or private health care. But corruption in the richest parts of the world also has its costs.
Has the Gates Foundation ever addressed health care corruption and the conflicts of interest that are risk factors for corruption?  Should we expect more, or less from foundation that is now run by a multi-millionaire former pharaceutical executive as foundation CEO?

As we noted here, Dr Susan-Desmond Hellmann, the CEO of the Gates Foundation was previously President of Drug Development at Genentech, Dr Desmond-Hellmann had defended the then sky high pricing of bevacizumab.  Of course, Dr Desmond-Hellmann, as a top executive, personally profited from such pricing.  In her last year at Genentech while the company was still independent, her total compensation was over $8,000,000.  As we discussed in 2014, while she was the Chancellor of UCSF, questions arose about her committment to public health when it was revealed she and her husband had large stock holdings in the tobacco company Altria.  Yet she continued to dismiss the importance of her many apparent conflicts of interest.And there have been many accusations that the foundation she runs is more about promoting corporate interests in health care than actually promoting health, see the 2016 Global Policy Forum report per this Guardian article, this article in the Independent that accused the foundation of having a

ideological commitment to promote neoliberal economic policies and corporate globalisation

and  a PLoS Medicine article [Stuckler D, Basu S, McKee M. Global health philanthropy and institutional relationships: how should conflicts of interest be addressed? PLoS Med 8(4): e1001020.  doi:10.1371/journal.pmed.1001020.  Link here. ]

'There is a revolving door between the Gates foundation and pharmaceutical corporations. Many of the foundation’s staff had held positions at pharmaceutical companies,' the report adds.
For more details about Dr Desmond-Hellmann, look here.  

As we noted, in 2012,  the Global Fund to Fight AIDS, Tuberculosis, and Malaria as struggled with corruption issues, but even after these wake up calls, the Gates Foundation, one of its major donors, has done nothing to address corruption beyond its doors.  Likewise, while the Health Alliance International  has also struggled with corruption, the Doris Duke Foundation has shown no interest in health corruption initiativies (look here).

Other Foundations

As we noted in 2011, uninterested in health care conflicts of interest and corruption are the Ford, Rockefeller, Kellogg and Robert Wood Johnson Foundation which were noted to have significant holdings in Coca-Cola, Kellogg, PepsiCo, Pfizer, GlaxoSmithKline, McDonalds, Nestle, NovoNordisk, YumBrands, Pizza Hut, KFC, Johnson & Johnson, and Sanofi-Aventis, while the Ford Foundation held shares in a tobacco company, Lorillard, and the Kellogg and Rockefeller Foundations "were indirectly invested in tobacco corporations through conglomerate equity funds...."

So health care interested foundations, which may derive financial benefit, and may be led or governed by people who mightily benefited from the dysfunctional health care status quo, are likely to continue fake reform to appear socially responsible, but avoid challenging their and their cronies sources of wealth.

Conclusion

Giridharadas suggested in an interview in New York Magazine,

What all that does is create this moral glow. And under the haze created by that glow, they’re able to create a probable monopoly that has harmed the most sacred thing in America, which is our electoral process, while gutting the other most sacred thing in America, our free press. And they do it under the cover of changing the world.

Unfortunately, he apparently has not come up with what to do about this problem.  The best conclusion I can reach derives from the end of a review of his book by Joseph Stiglitz in the New York Times,

Democracy and high levels of inequality of the kind that have come to characterize the United States are simply incompatible. Very rich people will always use money to maintain their political and economic power. But now we have another group: the unwitting enablers. Despite believing they are working for a better world, they are at most chipping away at the margins, making slight course corrections, while the system goes on as it is, uninterrupted.

So I say first, beware of fake reform pitched by those who benefit most from the current dysfunction, call it out, and whatever you do, do not continue enabling it.



Monday, September 03, 2018

Michael Fine's Health Care Revolt

Michael Fine, M.D., HealthCare Revolt: How to Organize, Build a Health Care System, and Resuscitate Democracy – All at the Same Time (Oakland, CA: PM Press, 2018).

Dr. Michael Fine is a man on fire. He’s on fire with anger about a healthcare marketplace that serves well to maximize the profits of investors and CEOs, but violates the values of many of those working in it. He’s on fire with enthusiasm about the potential of public health and prevention and about the value of integrated primary care. He’s on fire with determination to work to change our scattered health care marketplace into an actual health care system that could monitor and manage every citizen’s health. And he has concrete suggestions and a vision of how to work toward that end.


And, from what’s recounted here, Dr. Fine has an admirable practical record of implementing health care change on a local level in Rhode Island and in the Scituate area. In Scituate, he organized the non-profit Scituate Health Alliance and worked with residents and local officials to provide primary medical and dental care to all town residents. He envisions small local health care systems like his serving as a model that will show the feasibility of a better health system to both conservatives and liberals and eventually enable scaling up to a better national system. (This is quite reminiscent to me of how the great Nye Bevan, in the middle of the last century, successfully used the model of the Tredegar Medical Aid Society  and similar organizations to plan the NHS at its inception.)
What I liked best about the book is that Dr. Fine has an accurate gut understanding of just how much money we do spend on healthcare and of how harmful it is that we have let the “healthcare” sector balloon to such a large part of our economy. He realizes too how much of this - including many foolish things - is supported by public tax monies. And he really gets that this comes at a huge cost to the other things we could be spending that money on – and spending it on other things instead that are just as important to health would enhance people’s health, not diminish it. As he said in a related interview: “[To improve health,] we need to spend money on education … housing … community development … the environment. These …matter most for health. The paradox is that the more we spend on medical service expenditures that we don’t need, the less we spend on those things. In a certain way, healthcare is at war with health.”

I love Dr. Fine’s suggestion that one of the things we need to do to move toward healthcare improvement is to constantly highlight these costs and the damage done. Once we get to where everyone really understands this, we will have moved a big step forward. Working hard to publicize and delegitimize the cruelly extractive techniques of health care profiteers is worthwhile.


There’s all the difference in the world between making a living, including an excellent living, from people’s medical needs and making a killing from them – and in recent years the balance has shifted where we can fairly say that pharmaceutical companies, large hospital organizations, and many other medical sector big players are doing the latter.  I also like how he points out that “with …few exceptions, no health care market actor has a public portfolio (p. 84).” He’s right, and the corrupt marketplace – what Dr. Fine terms a “wealth extraction system” – has not gotten us to a good place for the public – at all.

So, in some ways, this book is inspiring – but in other ways, it is quite irritating. Dr. Fine is so wrapped up in his own perspective that he often is blind to and discounts the value of those parts of medicine that have not been his personal focus. Although I certainly agree with him that there are too many specialists and too much medical overuse, Dr. Fine seems insultingly unappreciative of valuable, needed services that specialists also offer, suggesting that one of the main ways generalists help their patients is by keeping them out of the clutches of specialists who may injure them. He seems, too, to class highly-paid specialists with high earners like CEOs where in my opinion this is ridiculous (specialists are after all basically pieceworkers and are not really similar to administrators, investors, and pharmaceutical executives – even if you think – and I do - they could rightly earn a bit less). Similarly, although I agree with him that the incorporation of a profiteering infrastructure into Obamacare and its lack of universality diminished its value, it’s unseeing to contend that it helped only a few people and that hardly counted. Dr. Fine grudgingly concedes that he likes that Obamacare funded more preventive services, ignoring the far more important benefits it provided to some of those MOST in need of medical care, those with clinical problems and issues. Dr. Fine should talk to some of the people who literally moved to Medicaid expansion states to save their lives first, before minimizing Obamacare’s benefits.

And, Dr. Fine doesn’t seem to have a grip on how unappealing many of us would find the world he dreams of. “Let’s close all center cities to private cars during normal working hours; let’s find ways to provide incentives for people who are not disabled to use the stairs rather than elevators (p. 71).”  He also suggests heavily taxing industrial food products, as well as the production of wheat, corn and sugar (p.70), oddly suggesting that we don’t need any of these crops any more for human consumption (which is news to me). Many readers, unlike Dr Fine, would have less than zero enthusiasm for living under such a heavy-handed, dictatorial regime and would (I believe fairly) consider some of their freedom lost.

As I read this book, I couldn’t help but compare it to a book by another strong advocate of more primary care, Richard Young’s American Health$care: How the healthcare industry’s scare tactics have screwed up our economy – and our future. Dr. Young is the single other person I can recall being as angry and as perceptive as Dr. Fine about the damage done from monies that could and should be spent on other things for more benefit – including health benefit – but which instead are being sucked away by what he calls the “government-medical-industrial coalition.”



Both really believe in primary care. But Dr. Young also realizes, as Dr. Fine does not, that “prevention” – just as truly as medical care for the sick - has many limits and can itself be a waste of money and inordinately expensive. (His discussion of what costs vs. benefits would be of an imaginary Texas tetanus initiative is sound.) And to Dr. Young, the primary purpose of medical care is care for the SICK.  (No matter how much prevention we have, at some point sickness or injury will happen to all - and this is the crux of medicine.) I recommend reading these two books together, to understand how two capable, decent, intelligent, and sincere doctors can have so much agreement on some things and such intense lack of agreement on others.

I know one thing – if I had to choose one as my primary care doctor, I’d be very comfortable choosing Dr. Young and would absolutely avoid Dr. Fine. Clearly, Dr. Fine would have his own agenda for me (he sees primary care doctors as mostly health nags), but Dr. Young, by contrast, would be responsive to what matters to me and my agenda, so we would be able to work together to manage any ailments in a “minimally disruptive” way that would be actually helpful. And although I personally agree with Dr. Fine’s desire to have more publicly-run, genuinely non-profit healthcare such as community health centers (and ultimately nationalized health care) and to legally rein in health profiteers, there are some definite “stoppers” for me in buying off on his whole vision and signing up to his plan.

Fine’s insensitivity and rigidity in some areas and his impersonality is the reason that if I’m going to introduce a friend to the concept of health care revolt I’ll give them instead Victor Montori’s book: Why We Revolt: A patient revolution for careful and kind care. Dr. Montori’s down-to-earth compassion for the ill inspires more trust, and, like Dr. Fine, Dr Montori too insists on the role of patient as citizen in reforming health care to a system more consonant with patient and physician values, but in a more persuasive way that is more convincing in making me like his healthcare vision.


Sunday, September 02, 2018

Apologizing for Problems with Commenting

My apologies!

I discovered a few days ago that our Google overlords had stopped notifying me about pending comments some months ago.  No indicator of the number of pending comments appears on my Blogger dashboard. 

I just realized I had a large backlog of pending comments, most of which were spam, but some of which were not.  I just posted all those that were not obvious spam.  I am now getting notified of new comments again, so I hope that your submitted comments going forward will not be unduly delayed. 

Sorry again

EHR evidentiary mayhem

A short post.

I am encountering, in my legal work, electronic medical records systems that either allow ex post facto note alterations by clinicians - for example, after a catastrophe - and/or alteration of the apparent date/time a note was entered. The alterations (e.g., a version history) or fake times don't appear on the printed records, and usually are not in the audit trails as well.

Some of the systems don't even bother saving prior versions of edited notes, AND/OR defense attorneys make production of the the note version history and actual times of entry very difficult to obtain, AND/OR judges do not understand the issues and are not compelling the release of note edits and time-of-entry data.

Even *Facebook* retains edits of postings that you can view!

In the paper record world, the edits were inseparable from the records. Cross outs, comments over carat marks, erasures, ink color differences, spacing, etc. made them obvious. Attempts to conceal the edits in the paper world, if attempted, would have constituted evidence tampering and would have caused penalties and/or lost cases.

Electronic medical records are not entirely the patient's friend when mishaps occur, because of the evidentiary mayhem they can create.

This is another unintended consequence of the rush to EHR's in an unregulated industry.  As those in the field of Social Informatics long observed (see, for example Kling, Crawford, Rosenbaum, Sawyer, Weisband (2000). "Learning from Social Informatics: Information and Communication Technologies in Human Contexts" here), adoption of any new ICT - Information & Communications technology - will always create winners and losers [1].  (The citations refer to organizational "politics" as well as the governmental variety.)

In this case, unscrupulous clinicians and lawyers and the winners, and patients are the losers.

-- SS

[1] "It is common for ICTs to have systematic political repercussions with winners and losers"” (Danziger, Dutton, Kling & Kraemer, 1982; Markus 1981, 1983):

Danziger, James N., William H. Dutton, Rob Kling, and Kenneth L. Kraemer. Computers and Politics: High Technology in American Local Governments. New York: Columbia University Press, 1982.

Markus, M. Lynne 1981. Implementation Politics: Top Managment Support and User Involvement. Systems, Objectives, Solutions 1(4) (November): 203-215. 

Markus, M. L. 1983. Power, Politics, and MIS Implementation, Communications of the ACM, 26, 6 (June): 430-444.


Thursday, August 23, 2018

Dander Still Up, And Also Down, All Over the Place. What Gives?

A. The Present Moment.

I've started this piece a whole bunch of times. So in fairness to you, reader, you have a few paths through it. If you don't feel like starting by sharing some navel-staring about today's bizarre predicament, please skip to 'D.' Or 'B,' or 'C.' Wouldn't blame you in the least.

I've still got my dander up about what's happening in the many troubled reaches of health care in the United States. OK, truth to tell, also about what's up world-wide. Scary stuff. Readers have no doubt waited patiently for me to recover from confusion about this sudden mess, much of said predicament stemming from various delayed reactions to the 2008 disasters. (For the wildly popular, broader and verbally less restrained version of this consternation, from a compelling voice, see this newsletter.)

Or, at least, I've waited to get over this confusion. Now I'm over it: see 'C,' below.

Overall, anyone paying attention to the press—or even for that one lone DC Legislative Assistant just reading this blog for all her health policy info—you know things just ain't right. Not in academia, not in government, not in the private sector despite a record-shattering bull market run. (Leave aside for just a moment all those other issues in US foreign and economic policy, equally in the soup.) We thought matters couldn't get worse before the arrival of the latest residents of board rooms and corner (or oval) offices in each of those sectors. But, oh, wait: then, after January 2017, they did.

But what gives beneath the surface? The news waves have become a deluge. But, to get to the "so what?", where are the rip-currents beneath today's tsunami of chaotic news? Why are things seemingly better in some areas than others? (For some specific examples see my Grade Point Average—GPA—scores below, introduced in this edition of the CDR (Cetona Dander Report),  I've been off the air while scrambling for some way of understanding the why behind the what. Now I think I've gotten what're at least some part-answers to my writer's block. And mirabile dictu, my dander's gone back down a little, especially over there in the Department of Health and Human Services.

For one thing, as Margot Sanger-Katz recently pointed out in the Times, and we're seeing this in many places, the troubled crazy-quilt of American health care, especially among the federal branches, and the antics of the DIC (disloyalist-in-chief, or my preference, doofus-in-chief), all have paradoxically made the organization of health care somewhat less anechoic. ("You see how I did that double negative in there?") This anechoic effect I began talking about over a decade ago, during the perhaps slightly calmer Shrub and Obama years—corrupt and autocratic behavior operating under everyone's radar, and I don't miss those days—this effect has repeatedly been decried by those blogging here, especially your intrepid editor.

But today, like immigration, health care is back in the political ads and it's no longer quite so anechoic, now the DIC has lanced the boil with his shrill. Hell, DIC's our poster child for health care reverb. He even claims as he campaigned on the notion of lower drug prices and better care. Just not for those people.

No matter. You can't unring this bell. Everyone left with anything resembling an open mind—come November we'll get more on the 'N' of said group—they all know what far too many in his party are trying to do. Those with brains already fully devoured (burp) by QAnon are, of course, excepted.

Biggest place the GOP and DIC overlap in goals: dance with all the lobbyists and Fat Cats who want to kill the baby in the bathtub. Kill the VA. Kill the ACA. Kill kill kill.

If this all starts to sound a little schizzy, that's precisely the point. This is a big clue to what's become the inner dynamic of federal health policy (and economic and foreign policy) in the second half of 2018. There's campaigning to the base, and there's governing. I mean, I know, I must be the last person in Montana to recognize this dynamic, especially after everybody saw the latest blind-siding on the Russian affair. No offense to Montana. I'm not from there. I know great folks there.

The executive branch of our government has cleaved in two. The White House today—quite unlike any of its predecessor administrations arguably including that of Bush II—is a perpetual political campaign. I know, others have compared it more to television reality show or one variant of the same thing: WWE. Anyway, it's a perpetual political campaign, and solely that. Its purpose is not to govern but to retain power in order to reward friends.

This goes for everything it touches in health care. Campaigns depend interminably on donors and, fitfully, even voters. The problem is, there are cabinet departments, for our purposes notably the VA and HHS, where something else, something else besides perpetually rabble- and fund-raising, has to happen. Something we used to call "government." More and more a rare bird. In the White House, the bird is as extinct as the dodo. (Charlottesville was clear-cut proof of this point, when the DIC ducked his constitutional responsibility to console and unify, in order to play exclusively to his base.)

"Government" clearly can't be effective by defaulting to sheer adversarialism and destruction. But interestingly, it's still there outside the White House. If not thriving, as least surviving and fitfully accomplishing some important tasks. In matters of health, like the tiny furry mammals scurrying among the dinosaurs after the asteroid, government is actually beginning to make some hopeful moves. It's time we called those out as well, and scored the agencies on how they're doing as we get close to mid-term elections. It's a balancing act between the campaigning DIC and his few fitfully effective folks. (If they tick him off and get fired, they'll be retroactively labelled "deep state.")

It looks to me like health care policy management, whether around how care gets paid for, or around reuniting kids suffering from child-abuse-as-foreign-policy, has become an absurdist pas de deux between these two factions. Never have they been more distinct. In this corner, the White House, with its hacks, its DIC, its billionaire donors just a phone call away, and its campaign-job explant moles planted in key departments. And in this other corner, until maybe they get fired, cabinet appointees and sub-appointees, including some pretty good old time GOP types, who want to get the job done. The first either lets these second types do their jobs, or somebody--often one of the hacks--gets to them first.

(In all of this, of course, Rule Number One is always, don't piss off the DIC. Get the job done without losing your own job.)

Among the hacks closest to the ear of the DIC, and man is that an image, chief are Larry Kudlow, Mick Mulvaney, both on money matters; and John Bolton on matters involving anyone who looks, y'know, a little foreign. (Norwegians, good. The rest: maybe, y'know, drug dealers and rapists.) In 'D' below we talk about some of the other

B. Getting a Bit Less Jumpy.

Here's how to get out of the distracting, enervating, confusing obsession so many of us complain about when considering health care and pretty much else coming out of today's Washington. (Not just the White House and the 15 executive departments. But especially.) Extricate yourself, that is, without sticking head in sand. Don't just take a break from all the crazy. Take a cue from the DIC Head himself. Note how fond he is calling everybody a dog. But in fact his prey, take for instance, are not dogs at all. It's the secret joy of more right wing GOP Trump-heads: we're all acting like cats.

Laser cats.

Just let him move that pointer around and we all go batshit batting at it. Dudes love it when we do that. We don't have to do that. Just be quiet and keep paying attention. We're on to them. Don't pounce until there's more there there than just a flickering red light. Recognize what he's doing across the board. Read Health Care Renewal. Remember, every time the red light blinks and you leap into the air, somewhere a puppy dies and a spook's security clearance goes kerplooey.

Here's an example. The daily din of Russiagate. Mueller et al. We don't jump every time there's a new lie or a new "flipper." But the DIC's organization's CFO just flipped. Now that's worth a jump. Right over the moon.

C. Sidebar: Montana and Oklahoma.

Why mention Montana? Well, actually turns out a big source of impact on our health comes right from our natural environment and the failure of Big DIC to insure its stewardship. He appointed an Associate DIC (ADIC) to the Interior department. Ryan Zinke, best known for a career as football player (Whitefish HS, University of Oregon) and Navy Seal. (Navy.) Zinke believes the California wildfires are best explained by "environmental terrorists" rather than climate change. Not cool.

The Secretary has now appointed a Whitefish team-mate essentially to vet any program that might affect our health. Steve Howke has an undergraduate business degree and a life in credit unions. So clearly he's a great pick to vet any proposed money involving more than budget-dust (i.e., > 50k) on programs. This is to make sure such expenditures "align with the administration’s priorities." Pretty much kills any chance Interior will pay attention to our health. Guy's the designated goalie to assuage the boss's desire to focus on really hopeful matters such as Clean Coal.

On a slightly brighter note, when it comes to the looming underwater loss of, oh, maybe the East Coast and all of Florida, the Big DIC seems to be appointing a real expert, Kelvin Droegemeier, as his White House Science Adviser. Job's been vacant for a long time. Maybe we'll keep Florida a little longer. Guy's impressive. See for example this actual piece of science for weather prediction. Let's fly to Oklahoma and talk to this guy.

Ah, the outsized influence of Whitefish, Montana. Is there a Trump Hotel in Whitefish? I know people there. I'll find out. If there's a solid gold toilet in Whitefish, we're finished.

D. Comparing Two Departments: a Trillion Between Them. Then Let's Grade Them.

So finally, after such all this preamble, how's life been playing out in health care? With the exception of the comparatively tiny program to reunite refugee kids with their parents, which is hapless, until now such life's not been so very vivid for most citizens glancing at their screens. Average Joe probably can't comment on either of the biggest items. But the noisy numbers, for 2019 are as follows.

  • A nearly 200 billion dollar request for the VA, well over a third of which is for health care and an over 15% request over 2918.
  • Almost 800 billion dollars for Medicare, most of which is for Medicare reimbursements, and just a 3% increase from the previous year.
  • Compare this with a bit over two billion for all HHS-supervised vulnerable-populations programs, even with a whopping 29% increase over 2018.
  • Only a tenth or so of this two billion is devoted to refugee programs. Two hundred million divided by a trillion. Hmmm, too many zeros here, so you do the math. Rounding error. But with close to a 30% increase for forcibly orphaned kids and others, maybe the Secretary tried.
  • So final tally: the three above total a trillion, 80% Medicare and 20% VA.
  • Keep it all in perspective, bearint these things in mind.
    • These are budget requests. Medicare they want to gut, even beyond ACA, so in the end maybe the aforesaid 3% will drop down into negative numbers.
    • Even here, with the 800B request, the HHS Secretary's clearly trying to be realistic on Medicare, knowing the temper of his bosses at both ends of Pennsylvania Avenue.
    • Ain't it odd! VA gets a barely passing grade despite the huge increase year-over-year. But this is the reality, as we'll see below.

Back to our echo chamber and the din of the 2018 election. It's all changing now, not so anechoic any more, as Dr. Poses recently pointed out. The fact is, and you'll hear much more of this in state-by-state campaigns just now getting off the ground for the fall run-up to November 6th, it's all now as vivid as hell. We should all remember how much more vividly people feel the loss of a dollar than they feel the bestowal of a dollar. Politicians know this. The anechoic chamber fills with a joyful noise. If only because, as occurred with other earlier water-boarding-style excesses, this same political party just gave us this most recent instance of politically weaponizing cruelty.

Really, not so joyful. But likely to command attention this fall. What else will command attention? Access to health care. And something for the vets who provided proud service to their nation.

I wrote earlier about the VA versus political donors' influence, in that case a Koch brother and a hack somehow attached to said brother. For a while seemingly, until he alienated them too, Trump and his people acted as though "things go better with Koch." In my previous dander-post, I pointed out the "Concerned Veterans," who've always seemed most concerned with privately outsourcing veterans' services while sundering the agency that protected them. (I provided medical care to these brave warriors from both inside and outside the VA. They rarely had anything bad to say about the organization. Certainly a lot less bad than I did when dealing with that hoary bureaucracy. Certainly they don't want it to go away. David Shulkin felt the same way, and lost a battle with the DIC's hacks.)

But now it's much worse. So I want to go out on this here limb and give Trump's two key departments for health care, their respective mid-term GPAs. For the VA: charitably, a D-minus. But interestingly, GPA for HHS: maybe as good as a B-, albeit constantly threatening to slide into a Gentleman's C to placate the boss DIC.

Why the qualitative disparity? Well, first let's back it up a little and rack up some of the recent events upon which this GPA result is based.

First let's take the VA. The place has had major problems for years and years, many of them self-inflicted with a self-referential bureaucracy second only to the Catholic Church. (David Shulkin knew he needed to fix this and was actively trying to do so when he was fired.) But the place just can't seem to catch a break. So harsh as it is for what's hopefully a work in progress that can still be salvaged either now or after 2020, the grade for this place is D- on a good day. Here are some of the hour-exams that go into the dismal assessment.
  • The VA's own internal watchdog just recently ripped it for failing in a recent program to help veterans' caregivers. This started before and continues during the Trump administration.
  • The effort to privatize VA care continues to ramify. Chasing down all the leads on this issue feels like trying to lop off the head of Medusa.
    • A proposed law to pay for privatization is bizarrely popular with bipartisan lip service. But it may shut down the government when you get down to finding the money.
    • There's a pathetic White House VA hotline about this, which reaches some hapless third party call-center folks who're powerless and clueless.
    • Most recently, Trump has essentially abdicated VA oversight to cronies, much like our high school footballer vetting spending at Interior. Specifically the "Shadow Rulers," a threesome of alte kakers—Palm Beach concierge doctor Bruce Moskowitz, sometime Marvel Entertainment chair Ike Perlmutter, and attorney Mark Sherman—who have in common one great thing: Mar-A-Lago! You can't make this stuff up. We owe it to ProPublica.com (see here, here, and here) for providing superb coverage of the narrative of their undue influence. Whether official or unofficial, it's abdication of authority, with weak official leadership.
  • After Shulkin left, the place was forced to thrash around leaderless. It now has a guy Richard Stone, an unimpressive managerialist, but at least an Army Veteran. Not nearly enough!
  • Stone replaced a far better suited expert, Carolyn Clancy, who was sidelined into a looking-out-the-window job under questionable circumstances. See here.
  • Worth an entire blog of its own but start here: the VA's saga of health IT is a surpassingly strange, long and sordid one. The VA was among the first to have a workable EMR. It  ultimately got scrapped for lack of support and interoperability with the far more egregious and expensive failure of DOD's EMR program. (Which Shulkin sought to fix via COTS outsourcing.) Many billions down the drain on both sides. The VA system's lack of interoperability was in no way the VA's fault. They can't catch a break.
  • One of Trump's earliest attempts to "deal" with the VA was to put Omarosa in charge! This early episode again underlines the White House's difficulty in dealing with government organizations that give off the scent of unprivatized "deep state" players. Veterans hated her—now why would that be?
  • Another Cohen, not Michael, enters the picture. Also courtesy of New York's blogger-journalists at ProPublica, we learn that hedge fund billionaire (and of course DIC crony) Steve Cohen is cashing in with the VA. Altruistically, of caws. Just wants to help out all those PTSD patients. Privately, employing something modestly called "The Cohen Network." Read this whole sordid story at ProPublica. I'm seeing double Cohens in here.
Why does the VA story seem so haplessly fragmented, with lovers and haters constantly duking it out? A recent piece in Washington Monthly, by noted authors Suzanne Gordon and Jasper Craven, offers a simple and I think largely correct answer. Its supporters, especially those in Congress, know VA medicine is popular but they keep ragging on it as though it hurts its patients more than the private sector does. Not true! These guys just don't like government-run programs when the private sector friends want in. The private sector is also beset with inefficiencies, IT disconnects, and corruption. Shulkin was on the right track but got derailed. In every case, the common denominator is how VA medicine is a single frog in a single barrel. Shoot it or slowly boil it. Either way, a far easier target for meddling than HHS. This is the answer, folks. It's not that the VA needs more help than HHS, or that publicly supported health care's inherently bad. VA and HHS certainly both need a lot of help, but the VA did many fine things over recent decades. But boy is it an easy target.

Now to HHS, a very different story. A much more elusive target, for any journalist but more importantly for any DIC-hack or -backer. And now it has a Secretary about whom we may at least point to dramatic improvement over his spendthrift predecessor. The latter was a physician at that, should have had his head on straight, but who proved to be so far right, and frankly so peculiar, that at any given time he clearly could take a bite out of his own prostate.

Salient points about HHS's performance under Trump:
  • Key people are Alex Azar, the Secretary and Seema Verma over at CMS.
    • They're both clearly being forced to walk a tight-rope between White House and DIC-backers' ideology, and getting a whole host of jobs done. And those jobs require a great deal of organic interaction with the private sector.
    • PBM companies
    • Big Pharma
    • The AMA
    • The payers
    • Patient advocates.
    • Last and probably least, advocates for vulnerable populations—for reasons stated above.
  • They both seem to be learning on the job. B.
  • Not all's well. Trimming back access to ACA benefits, hotly opposed by many, is still a campaign in the Congress and White House, but seemingly opposed at least in part by many within HHS. Jury's out on this one, as ACA is super-popular nation-wide. D-.
  • Evidence for this: tackling the ticklish issue of stabilizing the Obamacare marketplaces. Much ink-shed over this, e.g. here and here and here.  Devilishly complex but suffice it to say that some states and perhaps the Congress will go ahead (one of the above links even refers to Scott Walker and Wisconsin) and make sure reinsurance is assured. Can this be anything other than the insurance industry pushing back on the nihilists? B+.
  • Medicaid and its expansion are also fighting back from the preferred GOP method of compression and extinction. The abusive work requirements, playing to the DIC's base and its resentment of "free-loaders," are not likely to last. The WaPo in fact now reports the emergence of multiple objective health-services-research studies showing the salutary effects of expanded Medicaid, especially for chronic illness like diabetes. So risk payments may be restored. B+.
  • Drug-price negotiations are see-sawing like crazy. Trump says he believes strongly in this. Do we believe him or the PHRMA lobbyists? He touts token prize freezes. Azar seems on the fence, though he talks a good game. Congress tries to be encouraging. Jury's out. C-.
  • The corner of Medicare known as Advantage programs, emphasizing Accountable Care Organizations or ACOs, is another complicated matter. Verma seems to be looking to restrict ACOs to those with real accountability. Some view this as more draconian behavior, but I see her point. B+.
  • PBM companies—those lucrative outfits that "manage" pharmaceutical benefits—are also on the DIC's hit list. I see little progress. What I see is rural pharmacies dying out because they get caught in the PBM companies' baroque pricing schemes. D- to F.
  • A almost wholly unnoticed federal regulation from last month deserves much more attention. This voluminous document dramatically revises fee schedules for Medicare patients, emphasizing many of the services traditionally provided with little or no reimbursement by primary care physicians. New billing codes are proposed. For the first time the playing field may soon be leveled for many PCPs. This is a potential big win for those working for Verma. A solid A+.
  • The above's an excellent example of emerging claims, for example those in a worthy new Brookings piece, that real cause for optimism exists in health care reform. At least some of that stems from activities within HHS. The conservative author, Stuart Butler, deserves a careful read. He signals several "under the radar" patterns from both the states and HHS itself, flowing from increased flexibility that HHS now has. (For all its strengths, ACA was hamstrung by some fairly inflexible regulations on matters such as metrics for improving Health IT.) A+.
Average grade for HHS: B-. Why this good in an abysmal administration? As I've intimated, for every meddling White House apparatchik there's an outside interest pushing back on Azar and Verma. Lots of IT vendors. Lots of payers. Lots of innovators. (And, of course, lots of outraged citizens in the one conspicuous but miniature case of the separated children.) The very protean and risibly shuffling-buffalo scale nature of HHS may have been its greatest virtue. In an effort to satisfy the spirit of "anything but Obama," they're trying some new stuff, and some of it isn't half bad.

Thus VA and HHS are fascinating bookends juxtaposing the risks and benefits of homogeneous versus heterogeneous health planning. Right now HHS is winning, if only because of a political atmosphere in which the latter is better adapted to thrive. It could, of course, go the other way. Personally I hope the VA is restored to its former strength, perhaps in a spruced-up and more streamlined form: less bureaucratically stodgy to get away from the current predicament in which everyone from a bad manager to a bad nurse can tie the place in knots. I also hope HHS, even if Medicare For All becomes a reality, preserves opportunities for experimentation and innovation.


Sunday, August 19, 2018

Making Abusive Contracts Great Again - Non-Disclosure Agreements, Which Have Bedeviled Employed Physicians, Go From Anechoic to Viral Courtesy Omarosa

Introduction: Confidentiality Clauses, Non-Disclosure Agreements, Non-Disparagement Clauses

In 2016, Dr Wally Smith and I published an article on how contracts employed physicians sign may threaten their patients and professionalism.(1)  At the time, we wrote,

clauses in the contracts that physicians sign with their employers or that their employers sign with third parties may be part of a growing class of subtle but protean and pernicious restrictions on employed physicians' professionalism and autonomy.  These provisions may financially benefit employers and their management. No clear arguments that they benefit patients or support physicians' professionalism have been made.

The first such provision we listed was the worst one, in our opinion.

The most pernicious threats created by employed physicians' contracts may arise from blanket confidentiality clauses. For example, a hospital system subjected physicians to an 'ironclad confidentiality clause' under which 'the doctors could not publicly discuss their situations or, for that matter, anything else of significance about the corporation' that employed them....

These were particularly troubling because

Such clauses do not obviously benefit physicians or patients; instead, they may bury evidence of poor quality or safety problems, choke whistleblowers, or conceal mismanagement and malfeasance.

The clauses had a self-referential aspect

Because these clauses [themselves] are confidential, they have rarely been discussed in public, and corporate managers have never been called to justify their existence.

Finally,

Blanket confidentiality clauses could also hide other obnoxious contract provisions.

Up to 2016, obnoxious clauses in physicians contracts were, as noted above, quite anechoic, if not mostly totally secret.  I am afraid our article did not have many echoes.  But in our brave new political era, things have changed.

Donald Trump's and Associates' Use of Confidentiality Clauses, aka Non-Disclosure Agreements

By July, 2016, it became clear that the Trump campaign was requiring staffers to sign non-disclosure agreements similar to the blanket confidentiality clauses described above.  An Associated Press article stated that the campaign meant to enforce such agreements,

Republican presidential candidate Donald Trump is seeking $10 million in damages from former senior campaign consultant Sam Nunberg, alleging that Nunberg leaked confidential information to reporters in violation of a nondisclosure agreement.

Furthermore,

Trump requires nearly everyone in his campaign and businesses to sign legally binding nondisclosure agreements prohibiting them from releasing any confidential or disparaging information about the real estate mogul, his family or his companies. Trump has also said he would consider requiring such agreements in the White House.

That prediction proved to be correct.  In March, 2018, Washington Post editor Ruth Marcus started by quoting an interview Trump had given to Post reporter Robert Costa in 2016,

Costa: 'One thing I always wondered, are you going to make employees of the federal government sign nondisclosure agreements?'

Trump: 'I think they should. . . . And I don’t know, there could be some kind of a law that you can’t do this. But when people are chosen by a man to go into government at high levels and then they leave government and they write a book about a man and say a lot of things that were really guarded and personal, I don’t like that. I mean, I’ll be honest. And people would say, oh, that’s terrible, you’re taking away his right to free speech. Well, he’s going in.'

Reader, it happened. In the early months of the administration, at the behest of now-President Trump, who was furious over leaks from within the White House, senior White House staff members were asked to, and did, sign nondisclosure agreements vowing not to reveal confidential information and exposing them to damages for any violation. Some balked at first but, pressed by then-Chief of Staff Reince Priebus and the White House Counsel’s Office, ultimately complied, concluding that the agreements would likely not be enforceable in any event.

The nondisclosure agreements, said a person who signed the document, 'were meant to be very similar to the ones that some of us signed during the campaign and during the transition. I remember the president saying, ‘Has everybody signed a confidentiality agreement like they did during the campaign or we had at Trump Tower?’ '

Again, this implied that Trump and his business associates had long had a policy of requiring non-disclosure agreements (confidentiality clauses) of most if not all employees..

In addition, the agreements apparently were supposed to be valid in perpetuity.


Moreover, said the source, this confidentiality pledge would extend not only after an aide’s White House service but also beyond the Trump presidency. 'It’s not meant to be constrained by the four years or eight years he’s president — or the four months or eight months somebody works there. It is meant to survive that.'

The provisions were extremely broad, blanket if you willl .

It would expose violators to penalties of $10 million, payable to the federal government, for each and any unauthorized revelation of 'confidential' information, defined as 'all nonpublic information I learn of or gain access to in the course of my official duties in the service of the United States Government on White House staff,' including 'communications . . . with members of the press' and 'with employees of federal, state, and local governments.' The $10 million figure, I suspect, was watered down in the final version, because the people to whom I have spoken do not remember that jaw-dropping sum.

It would prohibit revelation of this confidential information in any form — including, get this, 'the publication of works of fiction that contain any mention of the operations of the White House, federal agencies, foreign governments, or other entities interacting with the United States Government that is based on confidential information.'

These agreements were apparently required even though they appeared to be blatantly unconstitutional.

Unlike employees of private enterprises such as the Trump Organization or Trump campaign, White House aides have First Amendment rights when it comes to their employer, the federal government. If you have a leaker on your staff, the cure is firing, not suing.

'This is crazy,' said attorney Debra Katz, who has represented numerous government whistleblowers and negotiated nondisclosure agreements. 'The idea of having some kind of economic penalty is an outrageous effort to limit and chill speech. Once again, this president believes employees owe him a personal duty of loyalty, when their duty of loyalty is to the institution.'

A New York Times article again from March suggested that these agreements were required not just from White House staff, but from journalists who embarked on official administration trips.

Mr. Trump’s White House has also broken with convention in trying to impose written nondisclosure agreements in other instances. A small group of journalists scheduled to travel on a trip to Afghanistan with Vice President Mike Pence were instructed in December to sign a confidentiality agreement before they would be given the details of the trip, for security reasons.

The issue of blanket confidentiality agreements now being used in government despite Constitutional free speech guarantees caused a brief ripple in the force, but that soon faded away, until Omarosa, that is.

Omarosa's Case Puts Non-Disclosure Agreements in the Headlines

This month it seemed impossible to avoid the saga of Omarosa Manigault Newman whose tell-all book about the president and his administration was just published to great tumult.  Ms Manigault Newman was the former reality television villain of Trump's Apprentice program.  She became a campaign aide (and somewhat infamously warned us that all Trump's critics would be forced to bow down to him, look here), then a White House aide with unclear duties, only to leave abruptly.  The story was everywhere in the media, and soon involved her allegations that she was pushed to accept "hush money" not to reveal goings on in the White House.  In fact, it became apparent that a blanket confidentiality agreement was one means Trump meant to use to keep her quiet.

On August 12, 2018, per Politico, KellyAnne Conway, erswhile WH drug czar (look here) said in an interview

'It is typical, and you know it, to sign an NDA … in any place of work,' Conway, counselor to the president, said to host Jonathan Karl on ABC’s 'This Week.' 'I’d be shocked if you didn’t have one at ABC.'

'I’m told she signed them when she was on 'the Apprentice,’ certainly at the campaign. We’ve all signed them in the West Wing,' she added. 'And why wouldn’t we?'

Again, Ms Conway did not seem to recognize that there should be any differences in what goes on in the government and in a private business.  Furthermore, the implication was that non-disclosure agreements, or blanket confidentiality agreements, are now standard practice in private business, and are worthwhile and objectionable.  Of course, she did not give any reasoned justification for their use in business, much less any explanation how their use in the executive branch was not a blatant violation of the First Amendment.  But onward,...

Just to underline the similarity with practices were originally discussed in 2016, the White House agreements were required of everyone, and were self-referential in that they made their own existence secret.  On August 14, 2018, the Weekly Standard reported

President Trump’s escalating digs at ex-aide Omarosa Manigault Newman over her gossipy new tell-all have brought new scrutiny to this White House’s unconventional—and, arguably, unconstitutional—policy of requiring staffers to sign non-disclosure agreements to prevent them disparaging the president.

The rule extended not just to those public-facing West Wing regulars, like Apprentice star Manigault Newman or former press secretary Sean Spicer—but also to lower-level recruits less likely to shop a White House memoir.

'We had to sign them when we went into the building,' said one former White House and former Trump campaign staffer, who described the practice as just a part of this president’s modus operandi going back many years.

Furthermore, one staffer stated,

'When we all got onboarded one of the things we had to do for our official ethics briefing was sign an NDA,' the staffer said—but they could not keep a signed copy for themselves. 'Everything got taken away as soon as we signed it.'
Just as in the case of the contracts handed to physicians, Trump's White House confidentiality agreements made their own existence a secret.

Summary and Discussion

In 2016 we published an article decrying the requirement that employed physicians sign contracts containing confidentiality clauses as well as other obnoxious provisions in order to practice.  We asserted the confidentiality clauses, also known as non-disclosure agreements, did no good for physicians or their patients, but did allow the managers of the physicians' corporate employers to hide embarassing information, poor quality care, and malfeasance.  At the time we urged physicians to carefully review their contracts and get legal advice before signing.  But we worried that little could be done to stop the use of exploitive contracts without wholesale changes in health care, which would probably require the organization of employed physicians.  Our concerns were inspired not a little by the lack of recognition of exploitive contracts as a problem.

Now the phrase "non-disclosure agreement" is frequently in the headlines.  The confidentiality clauses in contracts that Donald Trump has forced his private employees, then his campaign workers, and now White House staffers to sign are apparently very similar to those physicians had to sign.  They are extremely broad in what they make confidential.  They make their own existence, and other obnoxious contract provisions secret.

What is to be done?  Maybe the new publicity surrounding this problem will embolden physicians to address the issue in their own bailiwick.  Maybe it will suggest that blanket confidentiality clauses, and other obnoxious contracts provisions we had discussed should be rigorously regulated, if not outlawed by state and the US governments.  However, as long as we have the confidentiality clause imposer-in chief in charge of the US government little is likely to be done.


Reference

1. Poses RM, Smith WR. How Employed Physicians' Contracts May Threaten Their Patients and
Professionalism.  Ann Int Med 2016; 165: 55-57.  Link here.

Reminder: Frontline trailer that includes Omarosa's "bow down" warning


Friday, August 17, 2018

#WHISTLEBLOWER tonight on CBS at 9 pm: Brendan Delaney and Electronic Medical Records

I received this today. I have been writing on healthcare information technology problems for 20 years, on this site since 2004 and others since the late 1990s.

This eClinicalWorks EHR story is the worst-case scenario: bad health IT, and vendor cheating in the (already weak) "certification" process to get the EHR to market without consideration of the severe harms that could result, Ford Pinto-style.
 

This type of scenario is not what the pioneers intended, and is an example of how some in the healthcare information technology industry may have less of the altruism and responsibility that clinicians feel towards the medical mission.

Settlement information is here: https://www.healthcareitnews.com/news/eclinicalworks-pay-155-million-settle-suit-alleging-it-faked-meaningful-use-certification
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hashtagWHISTLEBLOWER tonight on CBS at 9 pm: Brendan Delaney and Electronic Medical Records Tune in tonight to hear Brendan Delaney’s Medical Records Whistleblower story – with Stowe Vermont Gables Inn’s Randy Stern, Phillips and Cohen LLP’s Colette Matzzie, and Ass’t US Attorney, VT Owen Foster’s help telling the story. Please share widely on your social media!
https://lnkd.in/deaCH2k for a clip. Thanks to all of you who have made our telling of this important story possible. And to Alex Ferrer our host and Alex, Susan Zirinsky and Ted Eccles our EP’s Ron Hill our DP! And Editors: Maria Barrow, David Spungen and Greg Kaplan. Best regards, Team Medical Records: Chiara Norbitz, Peter Bull and Marty Spanninger Martha Spanninger Producer

--------------------------------------------------- -- SS

Addendum 8/20/2018: The entire program is now available via streaming at:

 

https://www.cbs.com/shows/whistleblower/video/fnhybgQYhfSLYT9aM32V7MyYFeHHcFd7/whistleblower-the-case-against-eclinicalworks-the-case-against-chartwells/

-- SS