Will U.S. physicians be forced to 'heel' by executive order?

President Obama could force physicians into line with his grand vision of universal health coverage.

DANA POINT, CA, September 10, 2012Under Article II, Section 1, Clause 1, President Obama could issue an order to bring physicians into line with his grand vision of universal health coverage in America.

“By the authority vested in me as President…” could be the words preceding perhaps the most massive change to the U.S. healthcare system in history—eclipsing in effective scope even the Obamacare law itself.  In one of President Obama’s first executive orders issued in the post-election days of November 2012, if he is re-elected on November 6th, this phrase would shoot like hot lead from the barrel of the Affordable Care Act into the lives of physicians and patients everywhere.

As of today, physicians do not have to see patients with an Obamacare plan, and, by all polls, many physicians are not fans of the new law in the first place. This is keeping the President’s advisors up at night. 

Some fear the President’s vision for health services in America cannot be realized without the full participation of its roughly 850,000 practicing doctors.

Today, there are nearly 960,000 physicians in the United States, but some are still in training, or retired, or unlicensed. Over the next fifteen years, it is projected another 150,000 trained physicians will need to be added to the workforce to keep pace with the needs of the nation.

Can physicians be forced to see all patients, even those with insurance plans that run physician offices into the red? How would this affect the quality of medicine delivered?

Based on a reliable source, and backed up by analysis of the facts surrounding the healthcare reform debate itself, the following order (reported to have already been written by the President’s team) would attempt to finish the work of the ‘Act’ by insuring that physicians—the key linchpin to any successful medical program—do not simply ‘opt out’ of taking various insurance plans altogether.

Allegedly, President Obama’s executive order would read something like this:

“…and based in the authority of the Patient Protection and Affordable Care Act of 2010, duly affirmed as Constitutional by the United States Supreme Court in June 2012, … be it resolved that physicians practicing within the territories of these United States may not refuse to see any elective patient who presents to their place of practice based on an inability, or perceived inability, of that party to pay for such services or because of deemed inadequacy of the patient’s insurance-provided reimbursement.” (note: emergency patients are already, always, seen and treated)

Such a seemingly innocuous string of words may read like a reaffirmation of what most physicians practice on a daily basis—good will toward their community of patients by giving free or heavily discounted medical care. This is why the medical community always ranks at the top of consumer surveys ranking professions by esteem, honesty and decency.  This love of medicine and patients is what motivates doctors to go to work each morning.

Many physicians, however, are overburdened by student debt and a decade and a half of education and training. Many docs may not even be able to keep their practice doors open if not allowed the ability to regulate the types of insurances they accept, or to create a concierge/cash-pay component to their practices.

A closer look at the wording of such an executive order will reveal, however, a much more insidious purpose. The President’s goal with healthcare reform, one shared by the majority of Americans and health providers, is to see that all citizens are armed with ready access to quality medical assessment and treatment. The difference between the proponents and opponents of Obamacare has always been, however, one of method—that is, just how to achieve such a goal of expanding services to the uninsured or underinsured. 

Opponents of Obamacare argue that free-market principles, or simply allocating a pot of money to pay for basic services to those without insurance, would have achieved comparable or even better results than the existing new law.

In the Affordable Care Act, various top-down mechanisms to regulate, mandate and ration care are intended to curb expensive and perceived unnecessary testing and procedures, so as to save resources and redistribute preventative and needed maintenance care to the millions of Americans without insurance (or the ability to afford such services on an out-of-pocket basis). Libertarians and conservatives railed against the law they labeled ‘Obamacare’ because they feared it would kill innovation, sap ingenuity, and actually decrease bio-pharmaceutical-medical research and development and the delivery of top-tiered medicine itself.

President Obama is clearly of the mind that government-mandated universal health insurance coverage is the only path toward better national health services, and by issuing an executive order of the type mentioned he would be hoping to place physicians on a path that would virtually require them to accept any level of Medicare/Medicaid payment schemes for fear of losing their medical licenses {until overruled by a Congressional two-thirds majority—unlikely—or reversed by a subsequent Presidential Executive Order—more likely if a Republican were to follow a second Obama term in 2016}.

Since violating an executive order by the White House would be a criminal offense, and such offenses (prosecuted or not) would threaten a doctor’s state-based medical licensure, physicians would be all but required to acquiesce to the federal government’s will if they wanted to remain in practice.

Since 1789, every U.S. President has issued at least one executive order; President Franklin Roosevelt issues over three thousand. Only two executive orders in the history of the American presidency, one by President Truman and one by President Clinton, have ever been overturned. The authority based in these orders is deemed vested in Constitutional powers that stem from ‘delegated authority’, or wiggle-room, written into the wording of various pieces of Congressional legislation.

In the President’s executive order of August 31, 2012, Improving Access to Mental Health Services for Veterans, Service Members, and Military Families, it is noted in section 7 that “this order shall be implemented consistent with applicable law and subject to the availability of appropriations.”  In other words, the intention of the order rests, ultimately, on the ability of various government agencies to provide the necessary funds and resources to further its implementation.

Note the difference in the physician-directed mandate that is codified in Section 1311 (h)(1) of the Obamacare law.  It states the following: “Beginning on January 1, 2015, a qualified health plan may contract with … (B) a health care provider only if such provider implements such mechanisms to improve health care quality as the Secretary may by regulation require.” Here, it seems, the President is not handicapped by the requirement for funding, but rather empowered to heel physicians to his cause by threatening their ability to practice their trade.

In SEC. 3021 of the Affordable Care Act (Health Information Technology ENROLLMENT STANDARDS AND PROTOCOLS), it states:  …”The Secretary shall facilitate enrollment in such programs through methods determined appropriate by the Secretary, which shall include providing individuals and third parties authorized by such individuals and their designees notification of eligibility and verification of eligibility required under such programs …”

In March of 2012, President Obama raised fears in both liberal and conservative camps of a gross overreach of presidential power when he signed into law an executive order authorizing him to “take control of national defense resources” in times of national emergency.

It authorizes the President’s cabinet to “determine military and civilian staffing … and access to resources,” including corporate sources, supplies, skilled labor and professional expertise in the areas of national defense, healthcare infrastructure, and utilities. Could national defense itself be used as a pretext to essentially force doctors to absorb whatever mandates Uncle Sam prescribes?

If the President is planning to capitalize on the ominously vague language of the still-contentious health reform legislation, and to build upon powers granted him in previously issued executive orders (to achieve what Obamacare could not), then Americans of all political persuasions should be on high alert. 


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Adam Frederic Dorin, M.D., MBA

Doctor Dorin is a Hopkins-trained, board-certified anesthesiologist, practicing in a large group in San Diego. He is a small business owner, a Commander in the US Navy Reserves, and the Founder/President of America's Medical Society, Inc., (AMS) a non-profit corporation created to serve and educate physicians and the general public in matters of national health-care reform and medical politics

Contact Adam Frederic Dorin, M.D., MBA

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