“A foolish consistency is the hobgoblin of little minds,” wrote Ralph Waldo Emerson in his essay Self-Reliance. No one can ever accuse our country of consistency – foolish or wise. The only consistent element is our inconsistency. The resulting contradictions make it impossible to do things “right.”
Below are four out of a myriad of possible examples of our systemic legal contradictions, in healthcare.
#1. According to the Patriot Act, anyone using a FAX machine is required to read the documents to assure that he or she is not transmitting pornography or threats to national security. According to HIPAA, anyone using a FAX machine (unless it is the doctor) is prohibited from reading the FAX as it might contain protected medical information.
#2. Electronic transmission of medical information is considered insecure and therefore your doctor is prohibited from using email to transmit a consultation letter to a colleague. Conversely, NY City regulations mandate the electronic transmission of laboratory results in diabetics to a computer Registry, without the patient’s permission.
Note the irony. The patient’s personal physician is prohibited from receiving the transmission while some nameless administrative person in the Registry is allowed.
#3. The Obama administration is pushing the development of electronic medical records (EMR). Washington reasons [is that an oxymoron?] that efficient handling of medical information will save billions. In the exact same Congressional Act – ARRA 2009, the stimulus package, [interesting placement, is it not?] – billions are earmarked both to develop EMRs and to beef up HIPAA protections. Do they want communication of medical information easier – more efficient; money- and life-saving – OR harder – fire-walled; inefficient; and hugely expensive? Which is it? Answer: they want both! They are consistent in their inconsistency.
#4. The latest contradiction comes from Vermont, which passed a law requiring medical drug and device manufacturers to disclose publicly all monies given to health care providers. The Law seeks to ban all financial transactions as well as gifts. From a $5 million grant to do research to a $250,000 consulting fee to a pizza lunch: prohibited or certainly disclosed. Like so many laws, Risk Management will interpret it in the most stringent terms and just like HIPAA, will create a prohibition where the law strictly only has a guideline.
Transparency is appropriate for all fiduciary relationships, defined as having authority on behalf of – for the benefit of – others. Even the appearance much less the reality of conflict of interest is unacceptable. This is certainly true for health care providers. This should be just as true for politicians but is not. Those actions deemed unacceptable for fiduciary physicians are not prohibited for fiduciary politicians. There are no rules like Vermont’s for things like political junkets (or trips claimed to be part of their jobs); consultations and paid lectures; perks such as transportation and fancy dinners often to raise political capital (literally and figuratively); etc.
Those with fiduciary responsibility hold power “in trust” whether for an individual (as a physician) or for the public welfare (as in politicians). The rules governing surveillance of potential conflicts of interest should be the same, whether you are a doctor, an insurance adjuster, an investment counselor, a Federal regulator, or a Congressperson. They are clearly not.
Our laws and regulations require us to do one thing and prohibit us from doing the very same thing. Our laws and regulations apply to some but not to others.
Can you have “rule of law” when the laws themselves
are contradictory and inconsistent?