Breast Cancer and Environmental Causes: Links not as clear as we’ve hoped.

The latest research is finding that real links between environmental causes, genetics and occurrence of Breast Cancer continue to be elusive. Perhaps, it’s for a reason. Are we thinking of cancer in the wrong way?

Published in Aquila Style (click to read original article)

Published in Aquila Style
(click to read original article)

October is National Breast Cancer Awareness Month.

The above graphic is from an interesting article titled, Suprises in Hunt for Environmental Links to Breast Cancer, published by , 6:30 pm Monday, 11th November 2013 on http://www.aquila-style.com. The article is about one of the latest studies trying to find a definitive link to breast cancers’ origins. Many studies have tried to find links to environmental and genetic causes. So far the research has not been definitive to say the least. We do know that genetic mutations are present in many cancers, but we also know that they are sometimes not there in some – where we expect them, and are there in many – where do not see the cancer develop.

“We have still got 80 percent that has got to be environmental,” said Reinlib, who is part of the Breast Cancer and the Environment Research Program (BCERP) program that has received some $70 million in funds from the US government since 2003.

The above quote from the article seems to indicate that there is clear evidence that the causes simply have to be environmental because we have ruled out that family history is the main indicator. Yet, this may be a false premise as well.  Just because a white jelly bean is not vanilla flavored, does not mean it must therefore be coconut flavored. It can be any flavor at all or have none! Most of the research into environmental, family history and genetic mutation indicators have shown relatively slight correlation to the actual development of breast cancers.  These indicators may statistically increase the chances a few percent but they do not provide definitive guidance that one will, or will not, get cancer.

Recently, some researchers are starting to discuss cancer, less as a disease — even though the outcome is devastating on the individuals and the family — but more of a naturally occurring process — perhaps necessary in the species. Perhaps this same process that sometimes evidences as cancer, is a natural part of the core engine that drives natural selection to improve the species. Changing how we think about and classify cancer may have more of an effect on how we learn to adapt to it than “cure it” as time goes on.

We have found many genetic markers in the past decade or so that we felt were the main drivers of disease, like the BRACA genes for breast cancer, only to find that they turned out to not be specific. BRACAs were considered a key indicator specifically for breast cancer but recently has been shown to exist for prostate — not much of a surprise as prostate and breast tissues are histologically very similar — lung and now many other cancers as well. BRACAs are more likely broad based cancer markers as time will likely tell.  Most genetic markers are likely relatively nonspecific. In fact, our genes may be good blueprints for building the body and its systems but may not be the control point for what happens with these things when they are built.

Further, genetic markers themselves have been know to not be definitive for the occurrence of a cancer. You can have the markers and not get the cancer, and you can sometimes have the cancer and not have the markers. Some other researchers now believe there is a different biochemical system at work. Undiscovered, this other system has been dubbed epi-genetic — meaning above the gene. Numerous studies over the past 15 years have indicated the presence of some other control point. Don’t forget that it took many decades for actual chemistry of DNA to be identified and proven; even though we understood the theory of its presence for many years.

It is likely in the years to come we will find more answers to these new questions and new theories will fundamentally change how we think of cancer and reset our expectations on its treatment and occurrence.

Please remember all those who have died due to this horrible disease!

Continue reading

Value Based Insurance: it sounds so – “valuable”

Value based insurance, sounds so - valuable!

Value based insurance, sounds so – valuable!

Value Base Insurance Coverage, it sounds so — valuable. But is it really valuable? Is Value Based Insurance Coverage (VBIC) what you really want — what you may need? Well, perhaps, that simply remains to be seen. As we move through the implementation of the Affordable Care Act, ObamaCare, VBIC will become the next big thing we need to pay close attention to. You can be sure that soon this item will be getting quite a bit of ink as the potential ramifications become apparent.

Like so many things in life, the reality of this “value” based system may be fraught with unintended consequences for the individual and massive values and benefits for Continue reading

The ACA Exchange Poster Child – Covered California: Works for some, not for others

CoveredCaCalifornia, has long had the reputation as being one of the most progressive, or liberal, states in the nation. Often in a neck and neck battle with New York over who gives more free-stuff to its people at any given time, California long ago adopted the philosophy that what is good for some should also be good for all. The concept of income redistribution though higher taxes is not a new one for California residents.  Yet this state, nicknamed “the Golden State,” and home to Hollywood, Biotech, Oil and Silicon Valley fortunes often confounds because there are also strong anti-tax forces that from time to time rise up and limits California’s spending power through measures like Proposition 13. Continue reading

Women & Addiction: History replayed!

Drug Addiction in Women Article

http://www.usatoday.com/story/news/nation/2013/07/02/drug-overdose-deaths-women/2483169/

Ever since Samuel Hopkins Adams first exposed the evils of the patent medicine industry, in 1905 in a series of articles published in Colliers Weekly, it has been ‘patently’ clear that women have often historically been the prime target for the sale of prescriptive and Continue reading

Tax Code Driving ObamaCare Implementation: California’s ACA Odyssey Preview

Click to access the Original Article by John Gonzales

John M. Gonzales reporting for the California Healthcare Foundation Center for Health Reporting wrote a must read article called, How the U.S. tax code will drive Obamacare implementation, starting April 15. I strongly suggest all read it.

The negative effects of Obamacare on costs and care were immediate, and the ongoing negative effects are just starting to be disclosed and to build. Yesterday, I participated at a Health Care Summit put on by Continue reading

Steve Brills Article, “Why Medical Bills are Killing Us:” is a lesson of right and wrong at the same time!

Steve Brill's Time Cover Story (Click to read)

Steve Brill’s Time Cover Story (Click to read)

Time Magazine contributor Steven Brill has created a bit of a sensation due to his recent, February 20, 2013, article and Time Magazine cover story entitled, Bitter Pill: Why Medical Bills Are Killing Us: http://healthland.time.com/2013/02/20/bitter-pill-why-medical-bills-are-killing-us/#ixzz2LkTuy5lv.  Mr. Brill caused controversy both due to the length of the article, 26,000 words, and his revelations about the high prices and seemingly arbitrary pricing methods in our so called healthcare system.  His article has prompted a number of other reporters to pick up the themes and provide both points Continue reading

Coca Cola Superbowl Ad stirs cries of racism

Coke ad stirs controversy, but this article takes the argument from the sublime to the rediculous

Coke ad stirs controversy, but this article takes it from sublime to ridiculous (click to read article)

Having heard of the controversy over the Super Bowl ad by Coca Cola the past few days, this morning I was captured by the above article.  I expected it to be along a similar vein of remarks showing how Coke was insensitive to Arabs and painting them in a bad light.  When I first heard this argument on the TV news, I was looking for the Association of Los Vegas Showgirls to show up any minute and complain, followed by the African American Cowboy Association, National Hispanic Cowboys,  etc…

What stopped me in my tracks was not the casual assertion of racism due to insensitive stereotyping in the pursuit of parody that I was Continue reading

More Challenges to the ACA (Obamacare)

No Taxation Without Representation!

No Taxation Without Representation!

From Boston Massachusetts

By now, we all know that the Supreme Court upheld the insurance mandate of the Affordable Care Act (ACA) also known as Obamacare.  To recap, 26 states brought action to have the mandate, declared as an unconstitutional expansion of federal power under the commerce clause, the necessary and proper clause, and as a minor point its taxing authority.  The Supreme Court agreed with the states and found the mandate unconstitutional under the commerce clause, and the necessary and proper clause. However, in what many felt was a stunning decision by Justice Roberts­—and judicial over reach, the court upheld the mandate as a Continue reading

Treatment-resistant bacteria threat rises: What are the options?

Treatment-resistant gonorrhea threat rises in North America

Treatment-resistant gonorrhea threat rises in North America
By Julie Steenhuysen – Reuters.Com Jan. 8, 2013

Treatment-resistant gonorrhea threat rises in North America | Reuters.

A Reuter’s article today again illustrates the disturbing trend in our biochemical battle with other species, like the bacteria mentioned in this article–we are losing this war!  In the last few weeks, we have seen a number of articles outlining the discovery, or at least public disclosure, of new superbugs. Here is just a recent listing of articles on some superbugs: Continue reading

Are we really healthier?

More than 84 percent of workers admit coming to work sick

Sick at Work: More than 84 percent of workers admit coming to work sick by: Ned Smith, Dec 21, 2012, Business News Daily

The premise of the above article titled, “Sick at Work,” published in Business News Daily by Ned Smith, is that  workplaces are becoming breeding grounds for bacteria and sickness.  I was struck by this article, not for the valid point that when people come to work they are bringing disease into the workplace, but more by the idea that this is some new trend.  Perhaps the author did not intend this deduction but in speaking to a few people after reading the article, many made comments from the perspective that this was somehow a new trend and also something that is morally not acceptable. Continue reading

The Supreme Court Decision: It hurts to be wrong-but it hurts more to be right and still wrong!

Now that we have all heard the decision by the Supreme Court on the Patient Protection and Affordable Care Act (Obamacare), perhaps it is time for some reflection.  I know as I read the decision Thursday morning, while I was waiting in the queue preparing for a radio interview on the issue, I felt both vindicated in my initial analysis, but also left wanting and inadequate for not seeing the sideways tax justification for its declared constitutionality.

First a recap

There were four questions heard by the Supreme Court in this case. Continue reading

Obamacare Supreme Court Ruling Likely Tomorrow: What will it mean to me?

If the discussion around water-coolers across the nation, or if the intensity of the discussion I have been having at meetings, discussions, or speeches I have given lately is any indication; then regardless of the decision from the Supreme Court tomorrow on the Affordable Care Act, or Obamacare if you prefer, the nation will once again find itself in a vitriolic and unnecessary national argument.

If you want to find out about the background of the core issue, you can read my Health Care Mandate and the Commerce Clause Articles or you can read, Supreme Court to hear arguments on Obamacare: An enigma, based on a canard, wrapped in a conundrum and read how the decisions could come down.

Regardless of the decision, it is clear that we will again have a major upheaval over any decision.  Passions are still running extremely high, and everyone seems to think this is the “be all and end all” of our future life, liberty and pursuit of happiness.  And all of us are wrong!

The decision, regardless of how it comes down, will neither further harm our healthcare system, nor will it improve our healthcare system because we just do not have a system in the first place.  What we have is clearly not a system.  In my recent book, The History and Evolution of Healthcare in America: The untold backstory of where we’ve been, where we are, and why healthcare needs more reform!, available at Barnes and Noble and  Amazon, and other fine bookstores, I discuss how we got to what we have today, how the practice of healthcare has evolved over the years – sometimes not for the benefit of patients – how we arrived at the point where what we believe and expect from healthcare is more mythical than reality, and some ideas on what we need to do to make available both choice and effective care for all.  It is a result of our collective mythical vision of healthcare and inaccurate focus on the symptoms, not the problems of our healthcare system, in the current bill, that we find ourselves with a collective national angst that will in the end just yield political discord not fix the fundamental problems.

As I write this, I am listening to the debate on the Eric Holder contempt of congress issue, also pending determination tomorrow.  Again we are in the middle of a huge national division and if one is cynical enough, we may come to the conclusion that this is all part of some diabolical plan. Since we have come to the place where instead of citizen politicians, we now have a professional political class whose job is to sell us free stuff and fulfill our wants, more than our needs, in exchange for our votes, and thereby significant power and riches; perhaps this is why we seem to have become a nation of thirds who argue everything, and find our leaders unable, or more likely unwilling, to fix the problems.

We are now composed of about 1/3 hard left progressive, 1/3 hard right conservative, and about 1/3 of the nation seem caught in the middle.  You should wonder, what would politicians have to get reelected on if they stop giving us free stuff; and how, on earth, would they get us to give them money so they can afford campaigns, if we are not mostly extremely irritated over something?  I am starting to think it is not our integrity and character that gets us engaged in critical issues anymore, but more likely it is just our passions.

There are some who declare that “Fast and Furious,” was a planned effort to create a national outrage in order to continue to clamp down on gun rights and perhaps severely restrict the second amendment.  Some label this actual fact, and some call this nothing more than wild conspiracy theory.  We all participate in this to some extent because we now habitually believe there can only be one extreme or another, not some logical blend in the middle.  The problem for those of us who are not trying to find conspiracy at every corner, is that we are at a nexus of a number of events created by the actions of the current and prior administrations that all seem to have at least some conspiracy elements in the actions.

In addition to “Fast and Furious,” you have the the actions and events over immigration reform, and the President’s recent unilateral action to implement some form of a dream act. You have the Supreme Court’s ruling on the Arizona Law and the administrations action to shut down the rulings effect by suspending the cooperation between ICE and Arizona’s police departments, and if you look back at the Affordable Care Act debate in congress. You have on the record, statements from people like Barney Frank and Charlie Rangle, and some others, who stated that the health care bill would be the path to a National Single Payer Healthcare system.  While you can look at each item discretely, and argue there is no Machiavellian agenda, when you look across the entire spectrum one needs to wonder if there is some agenda at work after all. And of course, the answer becomes; Yes –  there is an agenda.

Of course there is an agenda, and hopefully it is because those pursuing it truly believe what they are doing is right for America and Americans.  But being right for America and right for Americans may not always yield the same decision.  If may seem right for Americans to have congress conflate the promise given by the Constitution to all for Life, Liberty and the Pursuit of Happiness into an extrapolated promise of free heath care for everybody paid for by the government.  Conversely, at the same time it may not be right economically for the viability of America, to assume what historically was a personal responsibility if the assumption of these costs would bankrupt the nation.  Both decisions, in the narrow view, are good and reasonable decisions.

One path to a decision, has the benefit of giving something to political constituents that will help endear politicians to their electorate and gain reelection.  The other, could change the last fifty years of building the expectation that it is the government, not the individual, that needs to be responsibility for their own heath.  Regardless, this is just not a good situation for any of us, and it is partly why the bill that passed to become the law that is Obamacare is not really liked by either side or the middle.

While the 1964 extension of Social Security Act to include Medicare and Medicaid, was sold as a safety net, the reason for the passage was political gain, clearly on display if you listen to the Johnson tapes available today on-line.  And, subsequent to passage, regardless of whether or not there really was a Machiavellian plan, we have continued to want, and/or allow, Congress to convert the “safety net” into a national entitlement.  The end point is the same.

This is the reason that as we await the decision from the Supreme Court tomorrow, I do not think it will matter one iota in actually addressing the problems that we need to solve or developing a real system to make available both choice and effective healthcare for everyone.

History and Evolution of Healthcare in America now released

Status

The History and Evolution of Healthcare in America is now released. Click here or on the image to order your advance copy today!

You can order your very own personalized copy here.

NEWS!!! Now available at great prices from Amazon.com

and Barnes and Noble.com

Here is what others are saying!

From the beginning of mankind, health and health issues have played a major role in life, but the issues and care have evolved enormously from the time when the first settlers set foot in America to the present. In The History and Evolution of Healthcare in America, author Thomas W. Loker provides a historical perspective on the state of healthcare and offers fresh views on changes to Obamacare.

Insightful and thorough, The History and Evolution of Healthcare in America offers a look at

  • what healthcare was like at the birth of the nation;
  • how the practice of providing healthcare has changed for both caregivers and receivers;
  • why the process has become so corrupt and expensive;
  • what needs to happen to provide both choice and effective and efficient care for all;
  • where we need to most focus efforts to get the biggest change;
  • what is needed to get control over this out-of-control situation.

Loker narrates a journey through the history of American healthcare—where we’ve been, how we arrived where we are today, and determine where we might need to go tomorrow. The history illustrates how parts of the problem have been solved in the past and helps us understand what might be necessary to solve our remaining problems in the future.

Stupidity or Duplicity: WE pay anyway!

Click to link to original ABC News Article

Do you think they just don’t get it? In a supposed attempt to find some “middle-ground” in order to make the “middle-men” whole as to the cost of birth control, the administration is acting like we are in the “middle-ages”—all poor and uneducated. First, the administration’s talking heads took the position that the cost of free birth control would be a savings for employers, now forced to pay for it because, pregnancies and abortions are much more expensive. The employers now have to pay for a product, to prevent a cost that their health plan is paying. The premise is that paying the lower cost birth control will lower the plan’s coverage cost and the health plan will then, in turn, lower the premium cost to the employers—not hardly!

Also, there is a big assumption that the rate of single mother and unwanted pregnancies will decrease because of improved access to birth control. I am not sure I agree with this either. Free or subsidized birth control is widely available, it just is not conveniently available everywhere. I am not attacking a woman’s right to have access to birth control. We have a very strong habit, of late, of confusing the discussion of access with no-cost access. It is the no-cost access I have the most problem with. The cost is not free, we all end up paying for it anyway, and the system that is based on mandates, despite the method of the mandate naturally inject inefficiencies and vagaries of control, so that a significantly reduced percentage of dollars spent actually go to pay for the good or service. Look at the healthcare debate numbers from the president’s round table at Blair House with republicans in 2010. By numerous authorities, from both sides of the aisle, only about 35 – 45 cents on the dollar ever make it to real care. So why do we do it this way?

The government now classifies birth control as preventative care, because the ACA or Obamacare requires health plans to cover prevention at no cost. Exercise prevents heart disease, so this should be classified as prevention, as well. Health plans really should cover gym membership at no cost. And, you know having fresh fruit prevents scurvy, health plans need to cover free fruit. Listening to peaceful music lowers stress levels, and therefor prevents high blood pressure and the risk of stroke so good music systems are preventative and should also be covered for free. And of course a warm, comfortable home is clearly preventative to lots and lots of health related problems so I guess “health plans” should provide this as well. This is the same issue I have with the insurance purchase mandate and the rationalization of its constitutionality by the extension of federal power justified by pointing to prior extensions of federal power under the commerce clause.

It is not the idea of helping people; women in this case, get access to care that is the issue. It is the duplicitousness of the need for access by extension to now mean everybody else needs to pay for it, and the effort to obscure the nature of the extension logic that I am finding most troubling. The argument that is being used, now over and over again, goes like this . . . Someone, or some group, needs access to something—or for political gain, we can convince them that they are being discriminated against because they do not have this access and we want to give them access so they will see us as looking out for them, what we are providing is now considered preventative, we passed the law that says if its preventative it must be provided at no cost, ipso facto, you have to pay for this group to get it because it’s the law.

The straw that is breaking the back of many on this issue is now that this administration is saying well, since you are objecting to assuming this cost, we, the government, will find some way to make you whole here, you won’t have to shoulder the cost. Everything the government does cost the people of the United States money. No matter how they try to spin this, it costs us money. We are the government and we are the only source of money. So nothing they can do at the federal level is going to make anyone whole without laying it on the backs of all of us in the long run. Simply saying OK we will let you get a credit to reduce something you pay us over here, just reduces the income the federal government needs to pay what is already spent ten years ago. Do they really think we believe they will not increase fees somewhere else to get the money? If they lay it on the back of some other industry, they are going to increase prices that we all pay so once again it is out of our pockets. There is no escape from zero-sum economics. Even if they just print new money out of thin air, as they have been doing for forty years now, it reduces the buying power of our currency and prices go up, again we pay.

Finally, it is time we realize that we only have finite resources, and everything we do costs us in one way or another. Paying for birth control for everyone is just reducing the money we need to pay for everything else. People are now living much longer and as we crossed from average life expectancy at the mid-seventies to where we are not in the eighties, the average cost of care has rapidly increased. Now we demand that heal plans no longer just cover basic life-saving procedures, we expect they also cover quality of life items as well. The technologies we have developed to make this real gain in median life span is based on very expensive technologies adding to the costs, and the magic bio-chemical bullets we have developed to fight the war with the other species, like bacteria, and viruses, etc. are increasingly costing more and causing more side effects as these species have evolved to be resistant. All of this, with some other reasons as well, is causing the steadily increasing cost for our healthcare. Sometime soon we need to begin to discriminate at what point people are individually responsible for at least some of these costs.

So I wonder are the people coming up with these ideas really this stupid. If they are not stupid, then do they think we are this stupid? Or are they simply Machiavellian? My initial reaction is they are not smart enough to be this duplicitous, but perhaps I am mistaken!

The Global Leaders 2nd annual healthcare forum: January 10, 2012

Aside

Tom Loker will be facilitating the discussion at the Health Policy table at The Global Leaders 2nd Annual Healthcare Forum. January 10, 2011 at the historic Marines’ Memorial Club in San Francisco, California. To get more information about the conference go to http://tinyurl.com/6nppmu5 .  To Register Now go to http://tglhealthcaresymposium.eventbrite.com/.

The Global Leaders is proud to host its 2nd annual healthcare forum on Tuesday, January  10th in San Francisco at the historic Marines’ Memorial Club. The theme for the 2012 event is “Eliminating the Gap Between Innovation & Resources.” The conference will focus
on connecting CEOs and other senior executives with institutional investors and business development executives who can help bring the pieces together in a rapidly changing landscape.

  • Matching innovation with capital
  • How to mitigate risks; both financial and regulatory
  • The future of healthcare in a changing global market

WHO SHOULD ATTEND

• Biotech & Pharma
• Investors
• Business Development
• Research Analysts
• Key Opinion Leaders
• Journalists & Press
• Philanthropists
• Government Leaders

Be sure to check out Tom’s latest book, “Delusional Ravings of a Lunatic Mind.” available at Barnes & Nobel and Amazon.

Of you can find out more about Tom’s upcoming book, “The History and Evolution of Healthcare in America: The untold backstory of where we’ve been, where we are, and why healthcare needs more reform.

Time for something new: How about WE?

This article could also be titled…. “If the Occupy movement wants an argument that will resonate, and work — this is an idea!”

America has had a kind heart

America historically has had a kind heart.  In the past, when friends and neighbors were in need we have risen as one to help each other.  We are a nation that was founded on the belief that with tolerance for opposing ideas, and being united in a common cause, we could rise from the oppression of our rulers in a foreign land and take control of our own destiny.Thomas Paine was enlisted to help unite the people in this view and he coined the phrase, “an island cannot rule a nation!”. While at the time of the American Revolution there was not 100% unity in the desire for separation—or even universal agreement that separation from England was a good and economically viable idea. In the end, our founding fathers strung together enough of an argument that if we remained true to the ideals established in our Declaration of Independence and if we crafted the proper covenants of governance as later codified in our Constitution of the United States and if we practiced tolerance for each others separate and distinct; needs, wants, desires, and religious beliefs we could not only survive but perhaps thrive; and in so doing become a model for a new method of common governance—a constitutional republic—a very separate and distinct system from a historical democracy.

As a nation, in effect we made a promise to ourselves to believe in our own future, to be vigilant in the preparation of our government for the succeeding generations, and to develop within the constraints of our new found republic rules and regulations to promote various individual freedoms — earned based on our own personal and collective responsibilities. In the era of the citizen politician, this system has worked remarkably well. However, as we are by our nature, human, and as such subject to our own failings, we have made mistakes.  These mistakes, often in the form of ill-conceived and poorly framed decisions to solve the pressing problems of the various historic periods, have often changed our understandings, altered our perspective or removed the need to maintain our own personal responsibility for our life and our own decisions.

In the 1930’s we began a series of what at the time appeared innocuous decisions that fundamentally altered who we are and how we think of ourselves and Americans. It is my belief, that in each case the decisions were made for valid reasons. But in the nature of the deliberations at the time, we were faced with the age old dilemma: the conflict between practical pragmatism and ideological morality.  As we began once again to find some prosperity, we have more and more consistently chosen the moral side of the equation. And who can really argue with such choices?

The rise of the full time professional political class

In the days of the citizen politician, when congressional and executive service to the country was part time, and in the end those that served gained little and gave much, decisions tended to become more tempered with pragmatism because the laws passed more directly and immediately affected our legislators just as they did the rest of the citizenry.  As we moved through the 1930’s and 1940’s short term decisions to extend the period of congressional duty to more of a full time period set us on a path to the development of a full time legislative role and later to the establishment of the professional politician.  As this role changed, not only did we end up with full time politicians, we ended up with what now is a legislature full of professional politicians—a Full Time Professional Political Class.  A new level of American who’s class gives them exemption from many laws but more importantly that by gaining election into this elite class become, by and large, exempt from the pressures of life that affect the rest of the “normal” people. The prize of elected office is now exemption.

As I have discussed in earlier articles, the currency of this class is votes and the goods exchanged are now our own hard won assets, taken by the professional political class to equalize the injustices, both real and perceived of those not of the professional political class.  Whether the flow is from the wealthy few to the “huddled masses” or from the masses back to the wealth few to stimulate programs to fund the huddled masses, in this zero sum game we are continuing to lose economically.

For the last seventy or eighty years these decisions have appeared to work, with little or few consequences.  I have discussed a number of these points in prior articles and will not rehash these decisions here.  I expect my readers are capable of doing their own research and forming their own opinions.  What I will remind you of, is that as the underlying dynamic of our political system changed and this new class rose, often those short term legislative solution, affected to solve the immediate problems of any given period, became permanent sales pitches to sell these often short term programs as now permanent gains for the huddled masses in exchange for votes.

The Political Class is broken

Unfortunately though, today the professional political class, like the people they are supposed to serve, are stuck! Our political system is stalled! As a result, WE are stymied! That’s right, it seems we as a nation are at an impasse, spinning in circles and getting nowhere.  Yes, it seems we are trying to pry open a door that just won’t open.

The evidence of this, of course, shows in the inability of Congress to come to resolution in order to solve things like universal health care crisis, the financial crisis, the economic crisis, the immigration crisis, the jobs crisis, the energy crisis, the stock market crisis—the list can go on and on…. Any solution is long overdue.

Though it can often appear that the powers-that-be in Washington are making an attempt to provide such solutions, the historical record of real fixes and real reform is just not there. That’s right, if WE read and listen to the daily news, WE realize that what Washington has on the table ultimately will not, and cannot, work.

Washington has had many opportunities for the past 80 years to design and pass legislation that would fix our problem, they just can’t get the job done.  They can’t because we are asking them to fix something that is simply not in their purview to fix.  WE seem to keep asking them to fix the problems created by our own lack of personal responsibility and accountability.  We want the government to make it so that no matter what we do they must take care of us—make it all better.

I asked you a couple of paragraphs ago, “Who can really argue with such choices?”.  From a moralistic standpoint who really wants to argue against providing care for all who need it?  Or, who wants to argue in support of not helping people about to become homeless?  No one, in either the huddled masses (both the 99% and the 1%) class or the professional political class (all the rest) wants to make these arguments!  Despite the truth that no one is out to harm a fellow human being, isn’t it nice that we constantly beat this drum about how so-and-so wants to harm the other guy? In our hearts we know this is true but we allow these surrogates of others to beat this drum until some of us start to believe it. Who was it that said, “If you tell a lie big enough and keep repeating it, people will eventually come to believe it!”? Oh yea, it was attributed to Joseph Goebbels, although it is more likely a misquote of Adolf Hitler’s big lie passage in Mein Kampf.  One of the big issues today is that our Professional Political Class will not, in fact they can not, make such an argument.  The checks and balances that govern their existence prohibit them from making this argument. Their livelihoods are predicated on them NOT making such arguments. We have built a political system where they get compensated, quite handsomely, for promising to give us stuff for nothing-in effect lying to us.

Two minds but one heart

While I believe we all truly have one caring heart. I would submit, with no real evidence, that we as a species are of two sociological, perhaps genetic, minds on this issue.  About one half of the species sides on the moral and the other half sides on the pragmatic.  One side sees the argument as moral and cannot fathom any decision that would go along with sustaining the emotional pain of watching a neighbor fail.  The other side sees the problem as a survival issue, economic or otherwise.

Today, no one disputes there are millions in need in America, and more so in the world as a whole.  Seeing our governments inability to solve America’s problems is downright frustrating when you consider we are a nation that can mobilize in an instant to help people all over the world—like in Haiti or Sri Lanka—or how about the help we’ve given to various villages and communities in Bosnia, Bangladesh—or the impoverished countries in Africa. If we can do that then why can’t we take care of our own? Why can’t we help those who need, and most certainly deserve, to be treated with consideration and priority when it comes to physical and mental health and well being? While we should try to help the world, I for one would like to concentrate first on our own neighbors; as their suffering has a much more direct bearing on our own needs, wants and responsibilities.  I also subscribe to the belief that if I give someone in need $1.00 they get $1.00.  If I give it to the government the needy net about $0.35.  These are not my numbers but the governments in various forms.

We need an Answer

We need an answer. But to get one, we need momentum. And, to create momentum, I believe that if each one of us did a part—if we mobilize, all of us, pushed in our own individual way—we might very well force the door to solutions open, even if we do so only a little at a time.

I guess you could say that my philosophy toward solving the healthcare issue, and most of the other issues we face as a nation, can best be summed up in the words of that ever-popular Michael Jackson hit, Man in the Mirror, in which he and his co-writers Siedah Garrett and Glen Ballard, stated, “…I’m starting with the man in the mirror, I’m asking him to change his ways/no message could have been any clearer/ if you want to make the world a better place/take a look at yourself/and then make a change…”  In other words, it starts with each of us taking responsibility for both ourselves and our neighbors and a closer look at what every one of us can do to effect change.

While I was at Ramsell, I started a non-profit called the WE Movement.  In creating the WE Movement I believed that we could all do something, each of us to help Washington get the job done. While I was working on healthcare reform in Washington I learned a few things  about how our professional political class try to make sausage.  Having grown up in St. Mary’s County, Maryland, I know a thing or two about making sausage and Washington DC knows nothing about making sausage.  I would submit to you that we would be much better of in the long run if we went back to the days of part time citizen politicians, many of whom could be real sausage makers and we would find that our government would be much improved. If not improved, at least our daily diet of bad news would taste a bit better!

Let’s talk about health care for a minute.

We have learned that we in the United States are a generous people—all of us, whether we are Republican, Democrat, Independent—conservative or progressive. We also have learned that the majority of us wish that all people could and should have access to the health care they need.

Sadly, we have also learned that the scope of healthcare we want everyone to have is simply unattainable—the economic cost for it well beyond what we can provide—or more importantly—what we are willing to allocate to pay for it.  It is not an issue of taking money here to pay for it there.  It is an economic issues in that the more we pay for care to workers the less competitive we become in the world stage.

I have come to be of the mind that there are two very important universal truths that have emerged from this recent health care bill proposal:

  1. We can’t afford what we want (and need) and,
  2. the prevailing atmosphere of “Us” vs. “Them” has been a recurring theme and extremely corrosive to the ideals we have set.

For example, the goal of Universal Healthcare was to include:

  • Affordable coverage for 100% of all Americans
  • A mandated minimum standard of care
  • Access to all, regardless of illness, state of disease or pre-existing condition
  • Reduction of the overall cost of care to all Americans
  • The elimination of “care disparity”
  • And assurance of coverage for the underserved

All good ideas; lofty goals, yes, but A) we can’t afford this “vision” package because the implementation and subsidy costs alone total $1.55 trillion, and only 155 million people are getting paychecks out of the 338 million Americans who need them, and B) under the suggested guidelines, the cost of care for individuals will rise between $1000 a year to $3000 a year.

Next, it seems we’re faced with an “Us” versus “them” mentality: For example, coverage for 96% of Americans is requested (although 94% were already covered before the proposed legislation). The actual goal was to provide coverage for the uninsured or under-insured. And, the 2% additionally insured breaks out like this:

  • O.8 percent are between 18 and 29 years old
  • 0.4 percent are elderly—those that previously were not enrolled in Medicare
  • The dilemma is where this leaves the uninsured and under-insured

The problem is that the minimum mandates for care were watered down; changes were made geared to garner support from AMA, AARP, Unions, and others such as the Medicare Advantage program which was effectively curtailed to get AARP support. Also, the cost to the nation will rise significantly; the curve does not bend down under full utilization, however. And, also the ideal to eliminate disparity has resulted in restrictions of options for “them” that can afford it, not an increase in options for the “us” that cannot.  In other words, it’s as though this bill has pitted two groups against one another rather than providing a plan that works for the good of the whole. The end result: we’re getting nowhere. As I said, we are stuck, stalled, stymied…the situation has created a sense of inertia precluding us from moving forward in any direction.

Here are some other statistics that need to be understood and made known:

  • Medicare and Medicaid account for 1.3 trillion in health care spending this year
  • Total health care spending in 2010 exceeded $2.8 trillion. Interestingly, some studies have shown that as much as 39% is lost to waste, defined as “duplication of services” and “unnecessary services.”  Other studies tell us that as much as 20% is lost to fraud and abuse.
  • Ultimately, estimates suggest that over $800-billion per year is lost due to waste, fraud, errors and inefficiencies.

So, you may be asking: What can we do about it?

I believe that a simple form of coordination of care and benefits across all available sources will save at least 10% of the total cost of healthcare, and by eliminating duplication of services we can provide increased capacity within the existing networks.  Yes, it is possible, and what a way to begin to open that door!  And it is not simply in healthcare where these benefits can be attained.  It will work in virtually any area where those that have a re providing benefits to those that need.

It is staggering as we try to comprehend that $800-billion dollars in waste exists in the healthcare system across the United States today. What do you think is happening in other segments of government run programs?

Can you imagine what we could do with that amount of money if it were available for health care purposes—if we put this money to better use? And it’s not just the money that we can put to better use; it is the resources as well.  If we eliminate duplicate visits and other services we will free up resources to treat the others who wait in lines.

This is just one way to begin to solve the problem—better appropriation of resources and the spending of funds that are currently available. I believe there are a number of other ways to begin to solve the health care plan dilemma and we must because, just like you, most of us are out of patience with those who wish to make the health care issue, and all the others, a political playground. I think we can all agree that we are fed up as we stand by and wait for a resolution to a problem that is really quite solvable.

WE need to eliminate the “them” versus “us” mentality. We need a platform for those who wish to help each other—to be able to quickly and easily find those in need.  We need a method to filter the truly helpless from the clueless; or worse from the charlatans who simply want to get everything for nothing. Washington can play a key role, an appropriate role, in helping to develop such a system.  A virtual place for people to post what they are willing to provide so they can be matched with those in need. This becomes a “them” and “us” –that culminates in a “WE” solution.

I believe there are many others just like us who are willing to participate, and help each other in the collective crises we face if we can be assured that the needy are appropriately vetted.  Lets face it our government has a horrible track record in this regard.  Their own data shows that Medicaid and Medicare provide only about 35 cents on every dollar to care and we know that there is between a 15 and 20% rate of fraud in the system. Regardless of the percentage due to inefficiency this is at least a 50% improvement just in duplication and reduction of systemic fraud which we know from history the government just can’t do. We need a public private partnership to provide the core system.  Fortunately there are many choices.  Social networking is not far from being able to provide an effective infrastructure. Companies like LinkedIn and Facebook, already have flexible platforms.  MySpace not only has the platform but could rebuild their suffering brand by providing such a valuable option.  Of course there is also Google +, offerings from Microsoft, and many others.  It need not be just one provider.  Why not something in each and every infrastructure?

Webster defines “them” as “a group of people other than the speaker or people addressed.”

Webster also defines “us” in a similar fashion: “another person or other people.”

Presently, the mood in Washington is one of pitting “us” against “them.”
But the word, and collective consciousness we must all adopt in order to find resolution to the health care crisis, is “WE.”

Webster defines “we” as “you and I and others;”

It is all inclusive and that’s exactly how we must all be thinking in order to solve this health care  problem—with a “WE” mind-set. And, we need to tell Washington that this is where we stand as a nation.

For lack of a better analogy: If the Occupy Movement wants to find a message perhaps they need to become more about the WE and less about the 99% vs. the 1%. The truth is that this is not where the problem lies. It was basic grass-roots campaigns that grew rapidly in the 60’s when thousands took to the streets to put pressure on those in Washington who could not agree on how and when to end the Vietnam “war.” But this outcry spanned the classes and with a small exception did not pit one economic segment against the other as a way to curry favor in the majority. Clearly it has been shown that voices who cry out in unison with a unified, consistent, effective message  combined with an obtainable goal shared in every city, township and state can be very effective.  The speakers need also to be in every industry, economic strata, and profession—every company and corporation—and they need to gather and be heard. They cannot be disruptive nor divisive.

Our constitutional republic was set up so that our leaders would make the proper and just decisions for the good of the country as a whole.  The framers know that if we were only a “democracy” that in the end the system would fail.  That the mass of people would in the end vote more for laws that provide to their own benefit regardless of the overall bad effect to the nation.  The point of the constitutional republic was to set up our representatives so that they would be able to make the best decisions with little consequence and the bad decision would provide no gain.  In the past 80 years we have gone a long way to destroying that subtlety.  Historically, the concepts of fairness and equality for all did not equate to unequal burden nor benefit for anyone.  Today the entire concept of fairness and equality is conditionalized first on who has what.

WE need to take these messages to Washington.  We need to make it clear to our elected leaders what we think the effective role truly is for government.  To do that, we need to agree ourselves.  Abraham Lincoln said, “a house divided against itself cannot stand”.   Does anyone today doubt that we are a divided nation?  Even within our political parties we are divided.  I submit that it is no longer our politics that divide us; it is a much more simple philosophic divide.  We seem to be a nation of thirds.  One third morally driven (termed liberal), one third pragmatically driven (termed conservative), and one third combining the best (or worst—depending on your point of view) of both. Lincoln would likely be horrified.

When addressing the most fundamental rights—those of life, liberty and the pursuit of happiness, the authors of The Declaration of Independence started that document with the words “WE the people….” They went on to write: “…to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed—That whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it…” I am not advocating its abolition.  I am advocating we recoup our original national character.

I think we need to invite all of us— the collective WE—those young and old; well and ill; others within the healthcare and other business communities—to speak out—and to help the government find a way to solve these problems.

No one should be asking for money to do this. Existing infrastructures should be encouraged to build the support tools in their existing systems. Others should be determining what they can provide to tie into these support tools.  The government should be encouraging us all to do this, to adopt this philosophy and to establish some standards and guidelines to facilitate the private sector to participate right along with our part time citizen politicians in constructing a viable solution that works. To date, we have people saying, “We are fed up.” We are in need of a healthcare, financial help, economic recovery, jobs etc. initiative that works for the good of the ‘governed’. And, “We are tired of the bickering in Washington.”

Occupy, or any other organizations, should all hope to collect a groundswell of support—one that makes a powerful collective statement and an impact on Washington, one that will cause those in charge to listen to alternatives as to how to approach and conquer these dilemmas and also as a means to utilize such virtual matching and help systems free of charge to serve others who are less fortunate.

In the words of Stevie Wonder, those who decided to unite as WE should be determined to “… keep on tryin’/till WE reach the highest ground.”

What do you think?” Do you know anyone who has something to offer? Do you know someone in need of something?  Wouldn’t it be great if we could have a place to go match one with the other? Some place were the helpless can be identified, and the clueless and the fraudulent can be identified and filtered out.   I am not proposing the Government take the role of the determinant of who and who is not eligible.  I am proposing the government take the role of encouraging, promoting and defining the standards, that then allow private industry to combine their systems to help and put such determinations in the hands of the people offering the help.  I don’t mean we should get rid of our safety nets; but we should change the cost structures to a more efficient system and get the government at least partially out of picking winners and losers.  The  collective WE can identify the helpless, and work in virtual teams-virtual villages, to help each and everyone in need.  Virtually coordinating our efforts around the one person in need–placing them in the center of the world that is teaming up to help them.  This is the solution.  This virtual teaming approach will reduce, and perhaps in many cases, eliminate the waste due to duplication of efforts and could go a long way to identifying and reducing fraud and abuse.

In the end my message is–this is all up to WE.  We can continue to delude ourselves that the government can provide this effectively and efficiently but 80 years of history says otherwise.  So is it us–as in the US government as our collective surrogate,  or WE–as in all of us as individuals, that is best suited to do this?

That decision is yours regardless, the only difference is whether or not we all accept the individual responsibility– the duty–to do it or we push it off to the collective others.

Review of Article on Cloud Computing and Health Care from Healthcare Innovation Journal

In an article posted in Healthcare Innovation Journal titled, “Cloud Computing and Health Care” the Author, Vivek Raut makes some very good points about the potential of cloud computing in health care practice.  While I agree with many of his points; in a number of areas the ability to utilize the cloud in the manner he is suggesting are quite problematic.

Click to access original article

The use of the Cloud has tremendous potential to bring benefits in the areas that he cites like; reducing the complex and expensive infrastructure for providers, benefits of vertical integration and improvements of supply chain within a large provider, more appropriate infrastructure to improve collaboration, and more rapid and better access to vital care information among providers – it is the fundamentals of incorporating changes into the existing base system that doom such an approach to failure.  Without changes in the fundamental systems, other factors, naively considered in this article, prohibit or significantly impede the gains envisioned.

The problems of incorporating cloud based solutions under the current health care model come in three areas;

  1. The current legal requirements under the various privacy laws and HIPPA will not allow the kind of sharing and integration necessary to get the real benefits of such a system.
  2. The potential scalability and related benefits of economies of scale are lost due to the technical and legal requirements of the current transaction model.
  3. Simple movement to a Cloud based solution, either public or community, will not provide the improvements sought; as for each potential gain there is a corresponding offset in unintended consequences, infrastructure limitations, or cost of implementation.

This said, I do support the effort and agree there are significant savings to be had by the movement of health care systems to a Cloud based model.  With the proper redesign of the system itself into a comprehensive supply chain methodology, real gains from the cloud based approach can be realized.  Further, the most needed gain is the overall reduction in the cost of the provision of care through the elimination of duplication of services, fraud and abuse.  This can only be gained from the Cloud when the underlying methodologies for application of care and benefits is fully coordinated across all available sources.

Health care dollars in the U.S. are only woefully inadequate due to the percentage of loss due to fraud and abuse in our underlying system.  When only about thirty cents of the health care dollar spent makes it to the provision of care of a patient, it is clear that efficiencies need to be gained.  But the typical gains from solutions like the Cloud are focused in the areas of operational and administrative efficiencies.  In the health care continuum only ten to twelve percent of the dollars are lost due to administrative or operational inefficiencies.  The main loss of approximately fifty percents of the monies spent is in the area of duplicated/unnecessary services and fraud or abuse of benefits.

Clearly, the concepts inherent in the argument for Cloud computing apply here as well but only with a redesign of the current system and the underlying transactional model.  For instance; a community sharing of health data across a cloud to providers will still require written agreements under HIPPA between the providers and agreements with the cloud provider, all including the requisite business associate language.  The provider of cloud services would likely under the law be required to assure that each entity receiving any information had the proper legal documentation on file. The provider would also likely carry full liability for any breach by any agency under such a sharing arrangement.

Under the current health care transaction model, each agency stores and maintains full and multiple, sets of data on each patient in their system.  As patients see multiple providers their information is typically copied from provider to provider or supplied by the patient.  In a cloud based system there would be significant gains since the data could be shared a copied electronically and could also be regularly synched to provide accuracy and consistency.  The upside of this approach has major benefits to both the economy of the provision of care and to improved patient outcomes.  The down side is such a system, without a major change in the underlying transaction model, will overwhelm the current and foreseeable future of connected communication and likely yield significant cost increases for data storage and security.

Policy based controls over security in such a system under the current transactional model will yield little effect as the amount of data held in each location multiplies exponentially and the requirements of access to assure accurate and timely synchronization opens many additional corridors of access for hackers and data thieves.  The problem is not the Cloud itself.  In fact, the Cloud offers the opportunity to significantly improve security but to achieve these improvements a different transactional model needs to be adopted.  Even a singular public or community cloud warehouse point does little to provide the improvements in security due to the nature of putting all the information in one place.  No matter how secure we try to make it; one breach yields so much on so many it becomes a major problem.

To reiterate, I agree the Cloud will offer tremendous benefits.  In fact, I think the movement to the Cloud is already fait-accompli. It is not just the movement to the Cloud that is required.

There is an answer!  There are some very gifted people working right now on how to realize the gains that the author elucidates in his paper.  These changes are occurring and they will continue to occur despite our reservations and despite the inevitable short term unintended consequences that will show up along the way.  How can I be so sure of this?  Because this is not a revolutionary change that is occurring – it is evolutionary and the selection pressures forging these changes are both irresistible and irreversible.

I have always like this quote from Jim Morrison,

“The Future is uncertain and the end is always near!”

These words are a truism to the extent that they exist as a singularity.  Individually, we should all hold this advice very dear as we can be gone in an instant. But as a species, or in the abstract as a system, while we would have individually ceased to exist more than a millennium ago, it was adaptation cause by partially catastrophic events (selection pressures) that have led us to survival. Our evolution and decisions we have made along the way have both benefited us and caused unintended consequences.    Our discovery of the antibiotic properties of penicillin, for a brief period in our history significantly reduced death and disability from infections but along the way the organisms we were fighting have adapted and gotten more resistant.  We are now in the same position in our technologically based systems.  Health care is perhaps the one most evidently in need of change.  These changes are both inevitable and fundamental.  Without them the survival of the system itself is seriously in question.

If you would like to learn more about the efforts of those divining the answers on this subject, please contact me.

America Awakens: 1905 the beginning of the end for patent medicines.

America’s Great Awakening!

Any man’s death diminishes me, because I am involved in Mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.
– John Donne

Adams vs. Cheney: The end of the patent medicine era

I find Donne’s quote very interesting – applicable to the work – the ultimate effect of which, Samuel Hopkins Adams had on the issue of quack medicine and the ill effects of patent medicine manufacturers and their nostrums. Prior to Adams revealing series, the Proprietary Association – the cartel of patent medicine manufacturers – was one of the most powerful cartels in America.  While today we think of the Sherman Act of 1890 as an anti-trust act targeting companies like Standard Oil, one of the primary objectives of this legislation was the Proprietary Association.  As a testament to their power, the first use of the Sherman Act did not occur for ten years after its passing and then it was in the Miles vs. Park case.  In this case, Miles, was Dr. Miles founder of what we now know as Miles Laboratories.  Even with this, and other legislation the power of the Proprietary Association was so great nothing changed.  Even the passing of the Pure Food and Drug Act of 1906, did little to diminish the sale of their noxious and often deadly elixirs.

The Proprietary Association controlled most of the newspapers of the day.  It was the rise of the periodical magazine that began to provide a voice free of the censorship of the Association to people like Adams that provided the vehicle of change.  And it took the courage of Adams, and others like him to report the truth that began to wake up the country, particularly the women of America, to the dangers of their medications.

What clearly spurred Adams on were his feelings of diminishment for the death of the people these nostrums had killed.  His investigations led to the discovery of various business practices, by and large unregulated at the time of inception, and the link between these various practices and their monopolistic power.  Adams exposed how the Proprietary Association was controlling its members, the resellers of the products, the distributors, state legislators, congressional legislation and ultimately the newspapers that the public was supposed to be relying on to keep commerce honest.  In the end, his series of seven articles was prophetic as they brought the public out of its stupor, both figuratively and literally.  In the words of Donne, Adams told the patent medicine men, “the bell tolls for thee!” and it surely did.

In October 7, 1905, Collier’s Weekly began printing a series of articles by Adams.  The series contained “A full explanation and exposure of patent medicine methods and the harm done to the public by this industry, founded mainly on fraud and poison. Results of the publicity given to these methods can be already seen in the steps recently taken by the National Government, some State Governments, and a few of the more reputable newspapers. The object of the series is to make the situation so familiar and thoroughly understood that there will be a speedy end to the worst aspects of the evil.” (Note: Read the reprinted version entitled The Great American Fraud available through Google Books.)

 The Red Clause

Cheney's Main Product

There were a significant number of revelations by Adams. He exposed the nature of what most of the formulations were made of.  He showed how they were based on the simple premise of addiction.  He illustrated the danger of these drugs and the hypocrisy of many who defended them.  He established clear connections between the various members of the cartel and showed how they conspired to maintain their control over the buying public.  Perhaps most importantly he disclosed the “legal” business practices that the cartel used to control the supposed “watchdogs” for the public good – the newspapers via the Red Clause.

Adams printed statements by Frank J. Cheney, the manufacturer of one of the most popular patent medicines of the day – Hall’s Catarrh Cure. Cheney was also one of the most powerful and successful of the nostrum purveyors.  Mr. Cheney, then president of the Proprietary Association, in addressing his fellow members as president at their annual meeting in 1899, made the following comment:

“We have had a good deal of difficulty in the last few years with the different legislatures of the different States…..I believe I have a plan whereby we will have no difficulty whatever with these people. I’ve used it in my business for two years and know it is a practical thing….I, inside of the last two years, have made contracts with between fifteen and sixteen thousand newspapers, and never had but one man refuse to sign the contract, and by saying to him that I could not sign a contract without this clause in it, he readily signed it….this is what I have had in every contract I make: ‘It is hereby agreed that should your State, or the United States Government, pass any law that would interfere with or restrict the sale of proprietary medicines, this contract shall become void….’ in the State of Illinois a few years ago they wanted to assess me $300.00. I thought I had a better plan than this, so I wrote to about forty papers and merely said: ‘Please look at your contract with me and take note that if this law passes you and I must stop doing business, and my contracts cease.’ The next week every one of them had an article….”

At the same meeting Dr. Frederick K. Humphries the maker of Pond’s Healing Cream (relabeled as Pond’s Cold Cream the product is still around today – but no longer healing) told the association that of “The twenty thousand newspapers of the United States make more money from advertising the proprietary medicines than do the proprietors of the medicines themselves….of their receipts (the manufacturers), one-third to one-half goes for advertising.”  Mr. Cheney further opined that the annual figure paid to newspapers in the U.S. exceeded twenty million dollars equating to more than one thousand dollars to each newspaper – a hefty sum in those days.  Cheney stated that he had contracts with over 14,000 newspapers at the time.  Finally, adding an almost sinister air, the record shows the Dr. Humphreys states,

“Will it not be now just as well to act on this, each and every one for himself instead of putting this on record?….I think the idea is a good one but really don’t think it had better go in our proceedings.”

Clearly intending they wanted to keep this secret.

Some revealing quotes and sections from Adams’ articles provide a very good idea how profound this series was.

The Following are some excerpted quotes from “The Great American Fraud”

Testimonial of a reader

The proprietor of a drug store in San Jose, Cal., writes to Collier’s as follows:

“I have a good customer, a married woman with five children, all under 10 years of age. When her last baby was born, about a year ago, the first thing she did was to order a bottle of Winslow’s Soothing Syrup, and every week another bottle was bought at first, until now a bottle is bought every third day. Why? Because the baby has become habituated to the drug. I am not well enough acquainted with the family to be able to say that the weaned children show any present abnormality of health due to the opium contained in the drug, but the after-effects of opium have been thus described.

Another instance, quite as startling, was that of a mother who gave large quantities of soothing syrup to two of her children in infancy; then, becoming convinced of its danger, abandoned its use. These children in middle life became neurotics, spirit and drug-takers. Three children born later and not given any drugs in early life grew up strong and healthy.

“I fear the children of the woman in question will all suffer for their mother’s ignorance, or worse, in later life, and have tried to do my duty by sending word to the mother of the harmful nature of the stuff, but without effect.

“P. S. How many neurotics, fiends and criminals may not ‘Mrs. Winslow’ be sponsor for?”

Adams comment on the
effect on the populace

Restrict the drug by the same safeguards when sold under a lying pretense as when it flies its true colors. Then, and then only, will our laws prevent the shameful trade that stupefies helpless babies and makes criminals of our voting men and harlots of our young women.

Adams quote on the responsibility
of the newspaper owners

Every intelligent newspaper publisher knows that the testimonials which he publishes are as deceptive as the advertising claims are false. Yet he salves his conscience with the fallacy that the moral responsibility is on the advertiser and the testimonial-giver. So it is, but the newspaper shares it. When an aroused public sentiment shall make our public men ashamed to lend themselves to this charlatanry, and shall enforce on the profession of journalism those standards of decency in the field of medical advertising which apply to other advertisers, the Proprietary Association of America will face a crisis more perilous than any threatened legislation. For printers’ ink is the very life-blood of the noxious trade.  Take from the nostrum vendors the means by which they influence the millions, and there will pass to the limbo of pricked bubbles a fraud whose flagrancy and impudence are of minor import compared to the cold-hearted greed with which it grinds out its profits from the sufferings of duped and eternally hopeful ignorance.

While Collier’s and Adams’ articles were not the first ones to raise the issue they were the ones that triggered the final effect.  The AMA had been distancing themselves from the Proprietary Association and patent medicines in the few previous years, yet their exposes and articles in the Journal of the American Medical Association (JAMA) did not have much effect since they were not widely read by the public. For a long time, JAMA was running ads for the very same patent medicines which made many physicians skeptical.

While the AMA had set up a committee to test the efficacy of the nostrums on the market, many physicians observed the medications that JAMA found as being ineffective were those from manufacturers that were not purchasing advertising space in JAMA.  Adams’ articles reached the broad public, and more importantly the women who were gaining power as a result of the Progressive Movement – Susan B. Anthony, and suffrage in particular – and it was this factor in conjunction with the legislative efforts that finally made the difference.  The bell had finally tolled – and loud enough so that the public had finally heard it.

Final Point

While Colliers and Adams had clearly rung the bell – the Proprietary Association also clearly still controlled the newspapers.  An article, written by Joel Blanc, appeared in 1905 written for the “Practical Druggist” periodical with the offensive title “The Niggers in the Wood Pile.” Like many others of the day, Mr. Blanc made a mighty attempt to play down the whole problem of the rising tide of concern about addiction and the problems with patent medicines.  They deemed it a big misunderstanding.  He further asserts the audacious stance of blaming the public’s concern against danger, injury and death as the responsibility of the true “fiends who are abusing these harmless medications.”  The title of the article was not simply an interesting pejorative of the day.  It was a part of an orchestrated campaign by the Proprietary Association to lay the problem caused by the “fiends” directly at the feet of freed slaves who he asserted were the true addicts.  While Mr. Blanc did not refer directly to the race excuse, other than in the title, he used this type of attack to attribute the problem to the lower class and disenfranchised.  The Proprietary Association and the targeting of minorities of any related issues had a long history in the patent medicine trade.  During this period, the blame not directed to simply the poor classes, it was now seen repeatedly in newspaper articles, often in the south, where it began to attribute the concern to rising violence and rape of “white” women by addicted “Negros” or in the West as an expected outcome due to the unscrupulous nature of “China-men.”  While society rejects this type of invective today, race based execration was all too common in this country’s sad history during this period which directly contributed to the distrust and disaffection between the races for many years.

Again I ask, if you enjoy this article, please comment!  A word or two makes it all worth while! – Tom

Pharmaceuticals in America: The Life and Death of a Patent Medicine King (1833 – 1960)

The Life and Death of a Patent Medicine King – Dr. Morse’s Indian Root Pills

There are those that believe the heyday of the Patent Medicine Men was over by 1930.  Still others believe that many of the leopards simply changed their spots. It is true that some of the original “cure-alls” live on today in various consumer products like Dr. Meyer’s

Original Brand of Pond's Cold Cream

Compound Extract of Tomato (now Catchup), Ponds Extracts (now Ponds Cold Cream,) Horehound Drops, Coca-Cola, Hires Root Beer, Dr. Pepper, 7-Up (originally called Lithiated Bib-Soda,) Listerine (at various times marketed as a floor cleaner, surgical antiseptic, cure for gonorrhea, and then successfully as cure for Halitosis(bad breath), and the Common Cold,) Halls Catarrh Cure (later Hall’s cough drops,) and many many others.  Further many of the companies, abandoned their “patent medicines” in favor of the new class of “ethical” pharmaceuticals that arose after the pure food and drug act of 1906. Even more damaging than the laws enacted by congress, were a series of articles in Colliers Weekly by Samuel Hopkins Adams that awoke America to the problems of these often deadly, always worthless concoctions that America was imbibing.

Many of the original members of the Proprietary Association, the rulers of the patent medicine kingdom, have disappeared from the pages of history.  That is not to say they do not still exist.  In fact, many of the major “Big Pharma” companies got their start in the heyday of Patent Medicines. If they did not produce patent medicines themselves – and few failed to capitalize on this lucrative trade from the mid 1800s through the 1930s – they provided raw materials to the purveyors of these noxious nostrums who made up a large portion of their incomes back in the day. It is no wonder that most of the major pharmaceutical manufacturers have purged their history of any mention of this era or these products.  The information is still there if you want to find it but it takes some serious digging.  Some great source for those so inclined, are the old periodicals available for free on Google Books.

Today, we fail to understand the lasting impact that this period and these manufacturers have had on our national psyche and our health care system today.  We have both many laws and numerous business practices that got their start either to help foster the sales of patent medicines or to curtail the influence of the Proprietary Association.  My book, “The History and Evolution of Health Care in America” among other things, explores in some detail the rise of this industry and its deleterious legacy on our current health care system.  Along the way I came upon an interesting story of the W.H. Comstock company, manufacturer of Dr. Morse’s Indian Root Pills.  In many ways this was the quintessential patent medicine manufacturer of the period.  The rest of this article will tell you a bit of the fascinating story of the W.H. Comstock company.

In northern New York there is the small, sleepy riverside town of Morristown.  Organized in 1871, few visitors even today to this picturesque location on the banks of the St. Lawrence River would suspect that it was home for over a century to one of the most famous and infamous purveyors of patent medicines of the late 19th and 20th centuries:  the W.H. Comstock factory, better known as the manufacturer of Dr. Morse’s Indian Root Pills.

Morristown was a quiet backwater before the Comstock brothers relocated their operations the 280 miles from New York City in 1867.  They moved, in part, to jettison some of their notoriety for a series of lawsuits between the family members in the business and many others in New York City.  Conversely, the village was a sleepy rural town whose main focus was dairy farming.  Lacking a powerful water flow at this part of the St. Lawrence it did not become a big haven for mills.  It did, however, at one point or another, develop a grist, carding and saw mill.  It was the arrival of the Comstock operation that spurred a significant period of growth in the town.

William. H Comstock (circa 1910)

What attracted the Comstock brothers was its isolation, its proximity to Canada, and similarly access to land immediately across the river.  It was also the perfect location for shipping. At the time of the relocation of the W.H. Comstock factory, the railroad was just beginning operations in the area, making travel back and forth to New York simple and convenient.  Comstock not only developed a factory in Morristown but developed a similar operation directly across the river in the Canadian town of Brockville.  It was this dual production and distribution system that helped the Comstock’s become one of the dominant players in the patent medicine game.

Like many in others in the same game, the Comstock’s were hard men in a hard business.  Founded by Edwin Comstock in 1833, along with numerous other brothers and sons their business evolved as a result of a number of questionable and contentious events in its early history.

The Comstock family came from a medical background and many of them were, or had worn the moniker of, physicians in their history.  More interestingly and likely very telling, is that the Comstock family home was in Connecticut only a few miles of the first American patent medicine, Lee’s “Bilious Pills.”  “Bilious Pills” both from Lee and many other imitators found such public and rapid success it certainly also had a profound impact on Edwin’s decision to venture forth in the same line of business.

Clearly, Edwin was not a novice when he established his business in 1833 in New York City.   As then early years progressed he would bring his brother Luscious into the business and also other brothers; Albert Lee, John Carlton, and George Wells.  He later introduced his son William Henry who ultimately succeeded him and who was the Comstock who brought the factory to Morristown.  Like many of the patent medicines of the day none of the Comstock’s products were patented but instead relied on the new trademark laws for protection.  Also like many others, they had numerous unscrupulous counterfeiters – the fakers were often members of their own family.

A great book for those who would like to learn more about the tortured history of the Comstock family along with the development of the patent medicine business might be obtained in the History of the Comstock Patent Medicine Business and Dr. Morse’s Indian Root Pills by Robert B. Shaw. (The book was published in 1916, and still available from Google Books.)

Comstock sold many more products other than the signature Root Pills. In 1854, Comstock & Company – then controlled by Lucius Comstock, listed nearly forty of its own preparations for sale, namely:

  1. Oldridge’s Balm of Columbia
  2. George’s Honduras Sarsaparilla
  3. East India Hair Dye, colors the hair and not the skin
  4. Acoustic Oil, for deafness
  5. Vermifuge
  6. Bartholomew’s Expectorant Syrup
  7. Carlton’s Specific Cure for Ringbone, Spavin and Wind-galls
  8. Dr. Sphon’s Head Ache Remedy
  9. Dr. Connol’s Gonorrhea Mixture
  10. Mother’s Relief
  11. Nipple Salve
  12. Roach and Bed Bug Bane
  13. Spread Plasters
  14. Judson’s Cherry and Lungwort
  15. Azor’s Turkish Balm, for the Toilet and Hair
  16. Carlton’s Condition Powder, for Horses and Cattle
  17. Connel’s Pain Extractor
  18. Western Indian Panaceas
  19. Hunter’s Pulmonary Balsam
  20. Linn’s Pills and Bitters
  21. Oil of Tannin, for Leather
  22. Nerve & Bone Liniment (Hewe’s)
  23. Nerve & Bone Liniment (Comstock’s)
  24. Indian Vegetable Elixir
  25. Hay’s Liniment for Piles
  26. Tooth Ache Drops
  27. Kline Tooth Drops
  28. Carlton’s Nerve and Bone Liniment, for Horses
  29. Condition Powders, for Horses
  30. Pain Killer
  31. Lin’s Spread Plasters
  32. Carlton’s Liniment for the Piles, warranted to cure
  33. Dr. Mc Nair’s Acoustic Oil, for Deafness
  34. Dr. Larzetti’s Acoustic Oil, for Deafness
  35. Salt Rheum Cure
  36. Azor’s Turkish Wine
  37. Dr. Larzetti’s Juno Cordial, or Procreative Elixir
  38. British Heave Powders

Because of its diverse inventory, Comstock became one of the major patent medicine companies during this period.  The manufacturer was also one of the pioneers of the Almanac as a sales tool. As Comstock began to develop its product line, the patent-medicine era was entering its golden years.  Robert Shaw states in his book, “Improved transportation, wider circulation of newspapers and periodicals, and cheaper and better bottles all enabled the manufacturers of the proprietary remedies to expand distribution—the enactment and enforcement of federal drug laws was still more than a generation in the future. So patent medicines flourished; in hundreds of cities and villages over the land enterprising self-proclaimed druggists devised a livelihood for themselves by mixing some powders into pills or bottling some secret elixir–normally containing a high alcoholic content or some other habit-forming element–created some kind of a legend about this concoction, and sold the nostrum as the infallible cure for a wide variety of human (and animal) ailments. And many conservative old ladies, each one of them a pillar of the church and an uncompromising foe of liquor, cherished their favorite remedies to provide comfort during the long winter evenings. But of these myriads of patent-medicine manufacturers, only a scant few achieved the size, the recognition, and wide distribution of Dr. Morse’s Indian Root Pills and the other leading Comstock remedies.”

Comstock took the lead as one of the main pioneers of the almanac -a sales brochure phenomenon of the day.  Almanacs were so popular and so mass produced that it was not uncommon for a person to walk into any drugstore and pick up three or four of them.  Some of these publications grew rapidly from just a few pages to over 64 pages by the mid 1800’s.

Stories published in the almanacs of the discovery of these nostrums, and also on the wrappers of the elixirs themselves, provided great reading and were the story-board commercial of their day.    Mr. Shaw relates in his book some examples of such inventive pitches,

Before 1900 the detailed story of the discovery of Dr. Morse’s pills was abridged to a brief summary, and during the 1920s this tale was abandoned altogether, until the end the principal ingredients were identified as natural herbs and roots used as a remedy by the Indians. In more recent years, the character and purpose of Dr. Morse’s pills also changed substantially. As recently as 1918, years after the passage of the Federal Food and Drug Act of 1906, they were still being recommended as a cure for:

  • Biliousness
  • Dyspepsia
  • Constipation
  • Sick Headache
  • Scrofula
  • Kidney Disease
  • Liver Complaint
  • Jaundice
  • Piles
  • Dysentery
  • Colds
  • Boils
  • Malarial Fever
  • Flatulency
  • Foul Breath
  • Eczema
  • Gravel
  • Worms
  • Female Complaints
  • Rheumatism
  • Neuralgia
  • La Grippe
  • Palpitation
  • Nervousness

Further, two entire pages in the almanac were devoted to explaining how, on the authority of “the celebrated Prof. La Roche of Paris,” appendicitis could be cured by the pills without a patient having to resort to the surgeon’s knife.

In another segment from the book, Mr. Shaw relays information mainly directed to the female health problems of the day.

THE GREAT FEMALE MEDICINE the almanac read:

The functional irregularities peculiar to the weaker sex, are invariably corrected without pain or inconvenience by the use of Judson’s Mountain Herb Pills. They are the safest and surest medicine for all the diseases incidental to females of all ages, and more especially so in this climate.

Ladies who wish to enjoy health should always have these Pills. No one who ever uses them once will ever allow herself to be without them. They remove all obstructions, purify the blood and give to the skin that beautiful, clear and healthful look so greatly admired in a beautiful and healthy woman. At certain periods these Pills are an indispensable companion. From one to four should be taken each day, until relief is obtained. A few doses occasionally, will keep the system healthy, and the blood so pure, that diseases cannot enter the body.

Watch any television show, listen to any radio broadcast or read any periodical or newspaper and one of the most prevalent areas of medicinal support will point to the area of sexual dysfunction.  Viagra and Cialis are boldly marketed for the treatment of men’s lack of “libido” or rigor in performance.   Only slightly more discreetly advertised are products for women related to dryness, libido enhancements or other more prurient pursuits.  While we think these issues are a modern connivance they are not. Again Mr. Shaw’s excellent history provides valuable insight to back up this assertion.  It reads:

Over on the Canadian side of the river, where another plant approximately the same size as the Morristown facilities was in operation, the Comstock Company had assimilated the Dr. Howard Medicine Co. Dr. Howard’s leading remedies were his Seven Spices for all Digestive Disorders and the Blood Builder for Brain and Body. The latter, in the form of pills, was prescribed as a positive cure for a wide array of ailments, but like many other patent medicines of the era, it was hinted that it had a particularly beneficial effect upon sexual vitality.

Over on the Canadian side of the river, where another plant approximately the same size as the Morristown facilities was in operation, the Comstock Company had assimilated the Dr. Howard Medicine Co. Dr. Howard’s leading remedies were his Seven Spices for all Digestive Disorders and the Blood Builder for Brain and Body. The latter, in the form of pills, was prescribed as a positive cure for a wide array of ailments, but like many other patent medicines of the era, it was hinted that it had a particularly beneficial effect upon sexual vitality.

They have an especial action (through the blood) upon the SEXUAL ORGANS of both Men and Women. It is a well-recognized fact that upon the healthy activity of the sexual apparatus depend the mental and physical well-being of every person come to adult years. It is that which gives the rosy blush to the cheek, and the soft light to the eye of the maiden. The elastic step, the ringing laugh, and the strong right arm of the youth, own the same mainspring. How soon do irregularities rob the face of color, the eye of brightness!

Everyone knows this. The blood becomes impoverished, the victim PALE. This pallor of the skin is often the outward mark of the trouble within. But to the sufferer there arise a host of symptoms, chiefest among which are loss of physical and nervous energy. Then Dr. Howard’s BLOOD BUILDER steps into the breach and holds the fort. The impoverished Blood is enriched. The shattered nervous forces are restored. Vigor returns. Youth is recalled. Decay routed. The bloom of health again mantles the faded cheek. Improvement follows a few days’ use of the pills; while permanent benefit and cure can only reasonably be expected when sufficient have been taken to enrich the Blood.

Before the Blood Builder pills were taken, all their users were advised to have their bowels thoroughly cleansed by a laxative medicine and, happily, the company also made an excellent preparation for this purpose–Dr. Howard’s Golden Grains. While the good doctor was modern enough–the circular quoted from was printed in the 1890s–to recognize the importance of the healthy activity of the sexual apparatus, such a suggestion should not be carried too far–so we find that the pills were also unrivaled for building up systems shattered by debauchery, excesses, self-abuse or disease. Along with the pills themselves was recommended a somewhat hardy regimen, including fresh air, adequate sleep, avoidance of lascivious thoughts, and bathing the private parts and buttocks twice daily in ice-cold water.

Certainly during the early days of the “Victorian” era these findings did not soften the ardor of the general populace who took to these remedies nor did the nature of these times force subtlety in the description of the cures available.  Today, the main findings we see pushed down our throats, very often literally, are cures for sexual dysfunction, “female problems,” constipation, the common cold or flu, mental stimulation, and my favorite compensating for loss of energy.  If one looks at the advertising for Comstock’s products one will see a historical mirror illustrating the sale of exactly the maladies and remedies for them, sometimes by the use of blunt and bold copy.  Most of the messages were communicated via the almanacs, product wrappers and newspapers. It would not be unlikely for all concerned about the evolution of health care to not wonder how much longer the patent medicine men would have held sway if radio and television had also been mediums to reach the gullible public. But then again, who is to say these purveyors of the quack and addictive have disappeared?

In a final section from the book, Mr. Shaw cites two other main points of interest during this period in which Comstock stands out as a solid illustrative member of the illustrious patent medicine industry; the use of testimonials in advertising its products and the lack of hard money in communities (important later relative to understanding the issues physicians faced in their practice in rural communities).  The use of testimonials was critical in the sale of these nostrums.  The experience of the everyday user was what rung most true to consumers, again just like today.  A great deal of newspaper ink was devoted to the publication of the merits of this nostrum or that elixir.  On rare occasions they showed up as advertisements.  More often than not, they also appeared as articles and letters to an editor.  Mr. Shaw summarizes these issues as follows.

Testimonials submitted voluntarily by happy users of the pills were always widely featured in the almanacs, newspaper adver-tisements, and handbills. Although the easy concoction of the stories about Dr. Morse and Dr. Cunard might suggest that there would have been no hesitation in fabricating these testimonials, it is probable that they were genuine; at least, many have survived in the letters scattered over the floor of the Indian Root Pill factory. In some cases one might feel that the testimonials were lacking in entire good faith, for many of them were submitted by dealers desiring lenient credit or other favors. Witness, for example, the enclosed letter from B. Mollohan of Mt. Pleasant, Webster County, West Va., on April 16, 1879.

Mollohan’s complaint about the shortage of money and the long delay in collecting many accounts reflected a condition that prevailed throughout the nineteenth century. Money was scarce, and the economy of many rural communities was still based largely on the barter system, so that it was very difficult for farmers to generate cash for store goods. Consequently, country storekeepers had to be generous in extending credit, and, in turn, manufacturers and jobbers had to be lenient in enforcing collection.

Contrary to popular perception, and in spite of many government regulations and actions taken by numerous associations to curtail the business of patent medicines, the W.H Comstock enterprise continued to thrive long after World War II.  The company reached its heyday shortly after World War I, but continued to sell many of its nostrums to retailers and distributors until March 31, 1960, when the last shipment of one-dozen boxes of pills was made to Gilman Brothers of Boston and two-dozen boxes to McKesson & Robbins of Mobile, Alabama on April 11 of that year. And with this final consignment – the factory closed its doors, concluding 93 years of continuous operation in the riverside village of Morristown.

In many ways W.H. Comstock is a true representative of the rise and decline of patent medicine manufacturers of the early 20th century.  I use the term decline as opposed to death.  It will be left up to the reader to determine if the patent medicine era has died or if the leopard has simply changed its spots. Later in this section, and in the others that follow, the reader will note that most of the companies are still with us, they have just changed their tactics or abandoned the “medicine” market for what is now referred to as “ethical pharmaceuticals” and/or the consumer product category.  Perhaps as a reader, you may come to the conclusion that “ethical” is a very flexible word when it comes to the acceptance and approval of pharmaceuticals.

After all, it took the FDA almost 100 years (1964) to finally get Warner – Lambert, the maker of Listerine – first formulated in 1879 – to finally stop improperly claiming in its advertizing that it was a cure for the common cold.

Please make a comment below if you like this brief history.  If so, I will be happy to include a few more in the next weeks as we prepare for the release of my new book!

President Obama’s Speech: Critical Question Continued

In his speech last night president Obama asked a key question.

President Obama asked, “Where would America be if we had not passed Medicare and Medicaid?”

As I said in my post last night, “President Obama’s Critical Question,”  the president’s question should not have been be a feel-good throw-away line, as it is the underpinning of the base argument, that Medicare and Medicaid have been good for us as a people and for the country. Clearly, the president believes that the answer to these questions is in the affirmative. But, what if the answer is not?  These are areas that I think many need to analyze.

Those who have been reading my articles know that I have a strong concern that the underlying issues in our health care system and our economy are systemic and the areas we are focusing on are, in effect, addressing the symptoms of the problems – not the root causes.  In my upcoming book, “The History and Evolution of Health Care in America: The untold back-story of where we’ve been, where we are, and why health care needs more reform!” I look at the relationship between the rising costs of health care and trace in part one cause to the large expansion of government programs like Medicaid and Medicare.  I also found correlations between the rapid increase in the amount of currency we created, after we jettisoned the gold standard in 1972, and the disproportionate allocations of these new monies to health care and other government subsidized programs like housing.

The relationship of the Total Money Supply (M3) to our current economic issues I will cover in a later article, but for now look at the direct, almost point for point, correlation of the rise in the total health care spend in the U.S. and the increase in the money supply.  I think there is no doubt that the significant increase in the amount of currency in circulation and the rapid rise of health care costs run hand in hand.  It is very clear, as Sancho said to his master, Don Quixote de la Mancha,

“Whether the stone hit the pitcher or the pitcher hit the stone – it was going to be bad for the pitcher!”

In this case, we can argue later whether the increase in currency drove the increase in costs or the increase in costs drove the need to increase the currency, it was the expansion of Government programs like Medicaid and Medicare that drove the increase in costs.

Housing also rose in a point for point correlation as well.  Unlike with health care, you can see it was an advance indicator.  This make sense, according to economic theory and the basic premise of fractional reserve banking because our the engine of economic expansion (the creation of new money) is debt.  Most preferably mortgage debt.  If housing prices did not rise and new homes and the resultant mortgages did not happen then the banks would have become rapidly out of covenant if the new money existed before the new mortgages were there to leverage against.

Lastly in this article, I include a chart of a few other cost histories, lest we think that all parts of the economy had the same correlation to the increase in the money supply.  Clearly, wheat corn and eggs did not experience the same effect from the increase in the money supply – nor does it appear they led the need to increase the supply.  I believe that most peoples practical experience is that not all things have risen in value twenty times in the past forty years.  Herein is the potential rub!

I will continue the discussion related to the presidents key question in my next article.  In that I will focus on how the creation of Medicaid and Medicare changed our personal character related to our view of our personal responsibility for our health care and how this change has affected our fiscal habits and our purchasing patterns and trends.

Please feel free to comment on this article or send it to others.  As I have said many times this is not a republican nor democrat issue.  I think this is an American issue.  I am not an economist just someone trying to understand why these things are happening now.  We need pragmatic solutions not demagoguery so lets find out what is the truth and then how we can fix it!

ACA, Politics, Mandates and the Commerce Clause

Focusing on the insurance mandate in the Affordable Care Act, (Obamacare) a few months ago I wrote a series of four articles for a publication, reproduced here as, “Health Care Mandate and the Commerce Clause Articles.”  In these four articles, I explored why I found the base argument that the government could regulate activities like these in a state difficult to fathom by reading the commerce clause in the constitution.

[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

In my original look at this issue, I examined  the precedent cases cited by many as the basis for the idea of why the Federal government had, in this case, a superior right to the sovereign rights of the states, something that all agree was expressly limited by the framers of the constitution.   Reading these historical rulings made this concept that this is a Federal right even more difficult to swallow because I found that these earlier rulings often were even less convincing and often more startling in the extent that the arguments became even more extracted and remote in their nature.

In reading  the arguments and the rulings of the 11th Circuit U.S. Court of Appeals, I found an additional reason why I find the base idea that the Federal government has the right in instances like this to regulate the action of individuals in a state even more specious.  This is actually the simplest argument against such a right, and likely it would even hold the same effect at a state level.  It is part of the many arguments that have been made in the numerous constitutional challenges over these past few months.  But like much of these debates, the nature of the arguments has become complicated by excess verbiage and legal flanking obscuring for most of us the basic concept.

This additional argument comes in to points.  First, let us look at the definition of the word commerce.  In reviewing the many variations of the definitions available there are some basic common elements throughout.  They combine into the following.

com·merce
(komerse)
NOUN:

  1. The buying and selling of goods, especially on a large-scale, as between cities or nations.
  2. Intellectual exchange or social interaction.

Second, we simply need to ask a very obvious question, and one that while it has been raised by the legal scholars in the various debates in one form or another, it has been lost in the myriad levels of complexity provided more, it seem, to delight the ears than to illustrate the point. 

If commerce is either the act of buying or selling something, and depending on whether or not the activity was international, with the indian tribes or among the several states it could either be regulated by either the Federal government or the states.  How is NOT buying anything then an act of commerce in the first place?  And, if it is in fact NOT commerce then the argument on who regulates the action under the commerce clause is moot.

Of course legal scholars will use tangents of the “Wickard vs. Filburn” case to argue that not buying is an action that reduces the commerce among the states and therefore in reducing the revenue is itself something that impacts commerce and therefore can be regulated.  I guess this is the kind of argument our parents made for us to eat lima beans.

As a child my parents, who were good and nurturing parents, used to make me eat lima beans.  Every time I took a mouthful of lima beans, I had to rush to the bathroom to vomit.  And of course when I came back to the dinner table, I had to have yet another mouthful of lima beans, promulgating the same response.  Their justification was they were good for you.  Of course, the loss of the rest of the contents in my stomach and the various fluids and electrolytes that went along for the ride, did not enter into the equation – lima beans are good for you, we have lima beans, ergo  you need to eat the lima beans because they are good for you!

My father, a lawyer and son of a prominent judge, I suppose was simply adapting some of the arguments from the prior court rulings justifying the extension of the federal powers under the commerce clause, when he said, “There are people in other lands who are starving and it would be a sin for you not to eat those lima beans while they starve.”  He must have chosen this argument because it is so similar in the base points made in the historic extensions of federal power under the commerce clause.

In “Wickard vs Filburn,” the court ruled that poor old Roscoe Filburn’s wheat had to be destroyed because he grew more than the law, at the time allowed, even though he was using it on his own farm to feed his animals.  In the case against Roscoe, it was deemed against the law because his flagrant activities of wanting to feed his animals this ill grown wheat, reduced the grain he would have had to purchase from other states if he had not committed the heinous act of growing it himself.  Of course the fact that he likely would have bartered with the farmer down the road in his same state and that Roscoe, during the depression, likely did not have any cash to pay for the wheat in the first place was not relevant.  Roscoe, was not buying wheat from other states and as a result he was affecting interstate commerce and therefore the Federal government had the right under the commerce clause to regulate him so his wheat had to go.  Now Roscoe, eat those lima beans because they are good for you!

We have a strong habit in this country to stretch quite far to make the points we want to make.  We will obscure, misdirect, abstract and extend, often by many more than the “Six Degrees of Kevin Bacon,” in order to get the result that we want.  In doing this, either in the desire to accomplish an end we know people otherwise would not support or to appear brilliant by the use of flowery language and abstract argument, we often forget the simple and common sense argument.  The one we can all understand.  The one that actually stands up to quick and continued scrutiny.

Throughout these articles I have not wanted to argue whether or not we as a nation should require all to purchase insurance.  There are very good arguments both for and against this practice.  I simply am saying making these further and further abstract arguments, whether by legislative action, or judicial injection is not the way to achieve it.  In the end we spend billions of dollars arguing points that any person working in the fields or factories would screw up their faces and say, “What?”    If you related the “Wickard vs Filburn” issues to anyone working for a living they would have a simple answer.

In the end it is not hard to subvert intentions.  In the case of our current political motivations regarding the Affordable Care Act , so called Obamacare, we see exactly the extent that politicians and governments will go to get the outcome they want.  It takes years of very expensive education and hundreds of millions, if not billions of dollars, to arrive at the decisions that have been rendered based on the various political governmental and abstract interpretations of the commerce clause!  Only we can ultimately stop this and force those we elect to find the simple and most pragmatic answers.

Afforable Care Act and Disease State Programs: What is the future?

As the Patient Protection and Affordable Care Act (ACA) continues the trek down the long tortuous hallway to become implemented law, a misquoted line, from Hunter S. Thompson, comes to mind. (I am using one of the misquotes)

“Hollywood, a long tortured hallway where thieves and pimps run free and good men die like dogs, for no good reason. There is also a bad side” – mis-quote of Hunter Thompson

We have all become complacent as to the unintended consequence of government deeds.  In researching my book, “The History and Evolution of Health Care in America: The Untold Backstory of Where We’ve Been, Where We Are, And Why Health Care Needs More Reform,” In a small way, I have become some kind of dubious expert on the historical record of the unintended consequences of the actions taken by our government, and many others, related to healthcare in America.  For some time now, I have been concerned that there may be very significant unintended consequences of the Affordable Care Act, particularly relating to special disease state programs offered by both states, and the federal government like; HIV/AIDS, hepatitis, heart disease, COPD, diabetes, etc.

ADAP as an Example

(While mandated rebates sounds like a great thing for consumers – it is not.  Federally mandated rebates are one of the drivers increasing the cost of medications to all of us and a major cause of the lack of transparency in drug pricing. I discuss this extensively in my upcoming book.)

An example of the kind of program I am referring to in California, would be the AIDS Drug Assistance Program (ADAP).  The California AIDS Drugs Assistance Program is a prescription drug coverage program funded, in part, by Title II of the Ryan White CARE Act created in 1990 by the US Congress and reauthorized in 1996, 2000, 2006 and 2009.

The ADAP program, provides medication purchase assistance to people suffering with AIDS, based on specific eligibility criteria.  The program sets limits on income, viral load, CD4 count, etc.  Depending on the criteria, eligible participants receive assistance ranging from; payment of insurance co-pay – up to and including full coverage of the medications proscribed, as long as the drugs are covered under the state’s extensive ADAP medication formulary (the approved list of medications).

You may be eligible for California ADAP services if:

  • You are a resident of the State of California
  • You are at least 18 years of age
  • You have a HIV/AIDS diagnosis (Requires Physician’s Letter and recent CD4 Count and Viral Load)
  • ADAP will only process prescriptions written by a licensed California physician/prescriber
  • You have limited or no prescription drug benefit from another source
  • You have a Federal Adjusted Gross Income of not more than $50,000.

ADAP is not all that California provides under the Ryan White Care Act to Californians suffering from AIDS, but it makes up the largest of the Office of AIDS’ (OA) expenditures – roughly $434 million of $1.3 trillion in total budget.  Of the $434 million number about 30%, approximately $126 million, comes from the California State General Fund, approximately 23%, $100 million, comes from the Ryan White Care Act funds, and 48%, $210 million, comes from mandated rebates from drug manufacturers

The Ryan White Care Act ¹

The Ryan White Care Act is the United States largest federally funded program for people living with HIV/AIDS. The act sought funding to improve availability of care for low-income, uninsured and under-insured victims of AIDS and their families.

Unlike Medicare or Medicaid, Ryan White programs are “payer of last resort”, which fund treatment when no other resources are available. As AIDS has spread, the funding of the program has increased. In 1991, the first year funds were appropriated, around US$220 million were spent; by the early 2000s, this number had almost increased 10-fold. The Ryan White Care Act was reauthorized in 1996, 2000 and 2006. The program provides some level of care for around 500,000 people a year and, in 2004, provided funds to 2,567 organizations. The Ryan White programs also fund local and State primary medical care providers, support services, healthcare provider training programs, and provide technical assistance to such organizations.

In fiscal year 2005, federal funding for the Ryan White Care Act was $2.1 billion. As of 2005, roughly one-third of this money went to the AIDS Drug Assistance Programs (ADAP) which provides drugs for 30 percent of HIV-infected patients. The primary activity of ADAP is providing FDA approved prescription medication.

 So,  why should we be concerned?

One of the major reasons for the enactment of The Ryan White Care Act, and the subsequent creation of ADAP programs in the first place, was the inability of those with this tragic disease to get adequate coverage from their insurers.  A diagnosis of HIV/AIDS became a red flag to insurers that either precluded coverage, if it was a pre-existing condition, or HIV/AIDS patients found their policies dropped for a myriad of other reasons mostly due to lifetime limits and trumped-up problems.  As a result, people with a diagnosis of HIV/AIDS could not get insurance.  The Ryan White Care Act and the various ADAP programs offered under this federal program through the 58 states and territories have done a wonderful job of helping treat, help to arrest the spread, and improve the quality of life of those with this horrible disease.  I think, this is undisputed.  The Ryan White Care Act and ADAP have been unqualified successes.  One of those rare occurrences within governmental programs.

President Obama’s 2012 HIV/AIDS budget requests $21.4 billion in funding for  Domestic HIV/AIDS activities. – Kaiser Family Foundation Report on HIV/AIDS Policy 

Having spent a good deal of time, for the past few years, in Washington, DC traveling the same long tortured hallway Hunter was claimed to have spoken about, I have developed a pretty good understanding of what is making things work there now-a-days.  The main issue on everyone’s lips, not just Republicans, is reducing spending.  The last re-authorization of Ryan White, in 2009, was a heated, and anger riddled, argument.  There were those then (including many leading democrats like Senator Kennedy) that did not want to reauthorize the existing legislation.  They were advocating creating new legislation that better dealt with the realities of the disease as it stood today.  But like most entitlements, the constituents, and their very vocal advocates, did not trust the government to bring them the program that they wanted.  While, they all agreed that the Ryan White Care Act was not great, they felt it was better than what they might get.  In the end, the political pressure drove the legislation to be reauthorized and extended four more years.  Determined to not see this, in their view, unwieldy and ineffective Act reauthorized one more time, Kennedy’s staff made sure that the 2009 re-authorization legislative language included a sunset provision that prohibited another re-authorization down the road.

 Well Things Have Changed – Haven’t They?

The biggest problem with AIDS today is that people no longer feel guilty nor afraid of the disease!
– Britt Weinstock, Senior Health Policy Advisor – Congressional Black Caucus

Well they have and have not.  Illustrated in the statement made by Britt Weinstock (one of the brightest and dedicated individuals I have met in Washington DC) in a meeting with me in 2007, the overall nature of the nations focus and funding for HIV/AIDS had changed.  It was then getting increasingly difficult to get attention in congress and squeeze out the necessary funding.  When the Ryan White Care Act was originally conceived the nature and treatment of HIV/AIDS was that of a terminal illness on the rise to a national epidemic.  Today it can be a treatable, if chronic, condition.  Then people diagnosed with AIDS had an expected lifetime of a few months to 8 years.  Today, with treatment, they can live mostly full and productive lives.  Like most other chronic diseases we face today, as the prognosis for HIV/AIDS has improved the lifetime cost of treatment has increased many fold.

As far as the Affordable Care Act goes, if this legislation continues to be enacted, it will prohibit insurers from barring HIV/AIDS patients from getting insurance to cover their needs – a seemingly good thing.  In fact, many states have already set up special funds for patients with pre-existing conditions and temporary high-risk insurance pools as an interim solution till the ACA takes full effect.  In the May revision of California Governor Brown’s 2011-12 Budget, the Office of AIDS are projecting saving some money by changing ADAP eligibility so that some of the covered patients shift into the states Pre-Existing Condition Insurance Plan (PCIP).  This program is a federally funded program and does not, at this point, receive any funding from the California State General Fund.  With cuts to Medicare, Medicaid, and Social Security now in open discussion, will such programs be deemed as necessary?  With Ms. Weinstock’s statement in mind will American citizens agree with the priority of additional funding?

As a result of the historical empathy and generosity of Californians, HIV/AIDS patients in California currently receive some of the best program benefits in the US today, and as a result, the public health crisis from HIV/AIDS has been contained and almost all patients in California have access to quality care and the required medications.  The question is – for how long?

As was seen in the 2009 re-authorization of Ryan White, many politicians did not want to be on the wrong side of the HIV/AIDS or GLBT activist communities and as such even the lion of the senate yielded and agreed to their demands for re-authorization.  But the game has definitely changed!  Before the choice for politicians was either, I agree to fund these programs or, since there was no insurance or other option for HIV/AIDS patients – they would die.

Today, the question politicians have to answer from the general public is; “Why do we need these types of programs? We just passed ObamaCare and everyone now gets insurance, or subsidies to buy insurance!”  The question for HIV/AIDS and other special disease state patients is, will politicians, having many fiscal-crisis related issues now the focus before them – without the ability to just print money to pay for them as we have in the past – have the strength to stand up to the rest of the fiscally troubled middle-class and say…

“Well you see…  Ahhh…  Well…  the Affordable Care Act…  aaaa, really didn’t cover everyone they way we thought…  And you see…”

Or will they just not re-authorize Ryan White and other special disease state programs like it and push it all off to MediCare, Medicaid and the ACA or the states.

How long can politicians in Washington, DC and Sacramento, continue to fund these needed programs?  How long will the politicians have the courage to stand up and continue in light of the looming fiscal crisis and its impact on seniors, disabled, children and under-served middle class and lower class Americans?  The question to the politicians really will be,

“Why do we need these programs if we just passed ObamaCare and spent trillions on it?”

“Politicians could use the answer, “Well….  Ahhh…  You see – aaaaa…..  Well it’s like this, you see, the Affordable Care Act really didn’t protect everyone!”  Some politicians may see it as a safer action – a more re-electable action – to not reauthorize these programs because; unlike before, when the choice was either we authorize these programs or people die because they can’t get insurance; now, to the vast majority of Americans, it seems no longer necessary because we just spent trillions to ensure that everyone has health care –  didn’t we?  Can a politician stand there and tell Mr. and Mrs. Middle Class America that the health needs for this increasing but still minority population of Americans is greater than their own fiscal needs?  And more importantly will these middle class Americans have the willingness to accept it.  Do we truly think, that we can fund everything we want by just taxing the richest 1%, 5%, or 10% of Americans?  If you look at the numbers, despite the rhetoric, we probably can’t.

This is a tough one!  Regardless of how anyone feels about the ACA – and almost no one actually likes it on either side – just like most other government programs, it is designed for somewhat near the lower-middle of the bell curve.  The people on the extreme edges of the bell curve get either poor or no benefit from these programs.  This is a fiscal reality.  The cost of the benefits for the people in the covered range of the bell curve where the programs are offered, has to be born by all the rest of the population.  The fringes never really get completely covered, even though the center of the bell is not in the middle-point of these curves.  So, we will always likely need specialty programs if we are going to commit to have the government take care of the most fragile among us!

It remains to be seen if this will be the case.  As I said, I am very concerned at this point that the Givernment of the People, By the People, and For the People is still able to do this, unless we rethink what this commitment means and more importantly, how to accomplish it.  We need to fundamentally restructure healthcare and rework, from scratch, the supply chain.  Perhaps we need to look not just at the government, but beyond government as well, to our individual relationships with, and responsibilities to, each other if we hope to find some answers.

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¹ Wikipedia contributors. “Ryan White Care Act.” Wikipedia, The Free Encyclopedia. Wikipedia, The Free Encyclopedia, 19 May. 2011. Web. 8 Jul. 2011.

Health Care Mandate and the Commerce Clause (Part 4)

The patient protection and affordable care act purchase mandate –
A four-part series on the relation and effects of the Commerce
Clause to Health Care

By: Thomas W. Loker

The following is the last segment of a four-part series where author, Tom Loker, explores the impact of the Commerce Clause on Obama-Care.

Image by Author

PART FOUR: A Time for a Fresh Look

In the last article, Sliding Down the Slope, we discussed how continuing court decisions and additional legislations have continued to push us further and further down the slope of federal oversight and control of increasingly larger parts of our daily lives. We also looked at how our historical interpretation of the commerce clause has muddied the water as to where the responsibility of the states to regulate our actions ends and responsibility federal government begins. Now, let’s look at this, from an everyday person’s perspective, as to what this may mean related to the current debate over the constitutionality of the PPACA mandate for all to purchase insurance.

 Who’s Right?

However, going back to the issues the framers were attempting to protect against, is it consistent with the framers view that the expansion of liability, as it is promulgated under this act, should so far abrogate personal responsibility as to the outcome of bad choice and bad behavior? Merely arguing that there is some benefit to a consumer does not make the clause relevant. The original expansion argument under Filbern that any commerce can be derived to be interstate commerce no longer seems to be a reasonable inference. Intrastate commerce itself is not innately subject to federal jurisdiction. The principle motivation to protect the consumer is not, in-and-of-itself, sufficient justification to regulate intrastate commerce, nor does it immediately give rise to the notion that all commerce is interstate.

The issue of the application of the Commerce Clause related to PPACA is even more muddled in that one of the principled arguments against this legislation is that it does not open the state-centered administration of health insurance nor does it provide an open and competitive interstate market. Most, if not all states, specifically regulate insurance provided within their borders. The inability of consumers to purchase insurance plans across state lines itself should stave off the argument that this is in some way per se interstate commerce and subject to the clause. The historical Filbern argument is even more difficult to rationalize in the absence of a transportable open state policy mandate.

Intrastate Regulation and Fairness

A reach to enforce the mandate for purchase of insurance under the auspices of the Commerce Clause is a hard one, indeed, in that the benefits to consumers that could be argued in the justification to impinge individual freedoms and economic liberties for the greater good are lost when the purchase itself is confined within intrastate regulation. Effective argument can only be made based on interstate availability of insurance whereby the policies available across the state line are comparable in standard of fees and services provided and transportable from state to state after purchase. An item, good, or service that is purchased in, and only is consumable, within one state and is subject only to the regulations of the state where the service was purchased and consumed in no way logically rises to become interstate. Further, any argument that attempts to provide nexus for an interstate affect, as in the case of Filburn, should be deemed to interpretation in the same manner as was done in Lopez.

A Voice Speaks Out

Specifically in relation to the Commerce Clause; let us agree with Justice Kennedy and walk a slow and careful path. In every case possible, let us demur to the authority of the state and the preservation of individual rights and liberties.

Finally, most recently in hearings of the Judiciary Committee relating to the debate for the need of tort reform legislation pursuant to the PPACA debate, one congressman, who shall remain nameless, while arguing why Tort reform was not necessary for the federal government to consider, made the following argument: He stated that in his long history as a strong states’ rights advocate, he had never seen an instance where health care was provided in a clinical setting and where the clinic existed simultaneously in two states, or between the borders of two states. As such, the provision of care was always done within the border of one state and therefore could not be interstate. The congressman further stated that if the person received care in one state, while a resident of another state, and that the care was provided under the licensure, regulations and authority of the state where the service was provided, that this was still no more interstate commerce than any other commercial action as prosecuted within a state on a daily basis.

Clearly, the evolution of the argument of the Commerce Clause, as providing a basis for regulations governing protection to consumers, can from time to time provide a broad and expedient method to justify such federal powers; these powers are innately the proverbial slippery slope. The framers carefully crafted the Constitution to preserve individual liberties and freedoms above all others. To allow expansion of federal powers under the aegis of the Commerce Clause, which has happened over the past few hundred years, is one of the more dangerous areas of law we have today. As such, full and unfettered caution must ensue.

The Judge Steps Up

Justice Kennedy wrote,

“[T]he Court as an institution, and the legal system as a whole, have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. Stare decisis operates with great force in counseling us not to call into question the essential principles now in place respecting the congressional power to regulate transactions of a commercial nature. That fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th century economy, dependent then upon production and trading practices that had changed but little over the preceding centuries; it also mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system.”

Let us agree with Justice Kennedy and walk a slow and careful path. In every case possible, let us demur to the authority of the state and the preservation of individual rights and liberties. I also suggest we only allow federal regulation when such regulation is meant to provide a mechanism by which it can normalize controls on behalf of consumers among states; where interstate commerce requires only federal control for solution or provision of benefit; or where it is necessary to regulate the actions among the states, not among or between the citizens of the states. Let us be mindful that the actions of the states themselves will not harm the public good or unfairly impost taxes, duties or levies between the states or with other nations or Indian tribes.

This treatise, outlied in these four articles, is just one lay person’s read of this issue. If we cannot explain it to every man and woman. Perhaps the reach is simply too far!

Please remember to post a comment below.  If you like the article please let others know about it!

Health Care Mandate and the Commerce Clause (Part 3)

The patient protection and affordable care act purchase mandate –
A four-part series on the relation and effects of the Commerce
Clause to Health Care

By: Thomas W. Loker

The following is the third segment of a four-part series where author, Tom Loker, explores the impact of the Commerce Clause on Obama-Care.

Part Three: Sliding Down the Slope

The Dreaded Slipery Slope

At the end of the last article, Simple Issues – Complicated Problems, we were discussing some of the earlier expansions of the federal reach under the commerce clause and one landmark case, Wickard vs. Filburn, which strains many ordinary people’s cognitive grasp.   There are some other significant legislations and court decisions that take this strain to a new level – perhaps venturing into lands, heretofore, exclusively explored by the venerable Rod Sterling of Twilight Zone fame.

Two Sides of the Same Coin

The Pure Food and Drug Act of 1906, made law that the liability for addiction and potential harm of a nostrum was in the hands of the person who purchased it not the manufacturer

In the late 1880’s, the rise in power of monopolies and cartels was having a deleterious effect on the population.  State laws provided effective controls intrastate, but the lack of solid legislative protections for the patent medicine manufacturers interstate was leaving them open to both economic and physical damage. The so called patent medicines were not protected by patent at all. Patents mandated disclosure of materials and methods so instead these manufacturers relied on trade secrets and brand protection.  Brand protection on an interstate level was the root of the problem for the patent medicine men.  In this mix grew one of the most dangerous cartels, the Proprietary Manufacturers Association, the makers of patent medicines.  While most states had forms of trademark protection, it was effective interstate protections that the Proprietary Association effectively lobbied for, and congress passed, with the Trademark Act of 1870.  Enacted under the authority of article 1, section 8, clause 8 alongside the Commerce Clause (clause 3), the Trademark Act allowed the members of the Proprietary Association to receive additional protections fostering their rapid growth and providing an instrument that allowed them to secure their brands interstate without having to disclose their formula or ingredients.  The effect on the population was devastating, not so much as to the economic impact, but to the addictive and deadly nature of the hidden ingredients in these nostrums. The effect on congress was even more troubling as the association’s power grew exponentially and soon they controlled 80% of all newspapers in the U.S., and with that and other contract-related devices, they had substantially gained effective legislative control.

Trademark Law Found Unconstitutional

As part of the political battle taking hold to reign in this emerging problem, the initial Trademark Act was challenged and found unconstitutional because it failed to make any reference to commerce with foreign nations, among several states, or with Indian tribes.  Moreover, the court found that the act made no mention of “the character of the trade to which it was to be applied or the residency of the owner.”   The battle continued with the Trademark Act of 1881, and then later the Trademark Act of 1905.

In addition to the Trademark laws that were effectively lobbied on behalf of the patent medicine men, the Sherman Antitrust Act of 1890 was another step in  the government’s battle to protect the citizenry.  Created to control the anticompetitive and harmful actions of cartels like the Proprietary Manufacturers Association, the Sherman Act provided a framework to protect consumers from anticompetitive behaviors of cartels, monopolies and trusts.  Reflecting the political climate of the day, and the power of the Proprietary Manufacturers Association, the Sherman Act politicians were virtually unwilling to use the law until Theodore Roosevelt’s presidency fifteen years later.  Specifically justified under the Commerce Clause, the Sherman Act and the extensions that followed like the Clayton Act, Robinson-Patman Act and other pieces of law began to leverage the Commerce Clause as a means to argue for and extend the reach of federal regulation in areas of interstate commerce, particularly when it was for the good of the consumer.

The Control of the Patent Medicine Industry

Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373 (1911) established that Retail Price Maintenance (RPM) was per se illegal and helped to interrupt the significant control the patent medicine industry was exerting over retailers of the period.  The tenant of the per se illegality of Retail Price Maintenance remained black letter until recent years.  Recent rulings like GTE Sylvania (1977) and Leegin Creative Products, Inc. v. PSKS, Inc., 128 S. Ct 2705 (2007) have begun to reverse these long standing decisions as reconsideration by the courts are again questioning the underlying basis of authority under the Commerce Clause.

Like Wickard v. Filburn, the creation and enforcement of the Sherman Act was motivated by the desire to protect the public.  Unlike Filburn, the Sherman Act stays well within the logical confines of interstate commerce to provide its authority for the protection of the consumer. It also serves to establish a limited framework for its use.  This act provided an indirect method by which to limit harm to consumers being wrought from the Proprietary Manufacturers Association.  This indirect method also became necessary and appropriate because the courts at that time did not recognize an ability to assess the manufacturer of an items liability mainly because the consumer made a reasonable choice.

As seen codified in the enactment of the Pure Food and Drug Act of 1906, much of the liability for the addiction and the potential harm of a nostrum was not in the hands of the manufacturer, but in the hands of the person responsible for its purchase. So, as long as the manufacturer made the consumer aware of any of a list of specific potentially “harmful” ingredients it was thought to be held harmless.

Civil Rights Act—Interstate Normalization

The Commerce Clause has repeatedly been used to help legislate behaviors at the federal level.  After the passage of the Civil Rights Act of 1964, the Supreme Court issued several rulings supporting the use of the Commerce Clause in regulating enforcement of discriminatory behavior in businesses.  In the case of Heart of Atlanta  v. United States, 379 U.S. 241, the court ruled that Congress could regulate a business that served mostly interstate travelers.  More interestingly, in Daniel v. Paul, 395 U.S. 298 (1969), the court ruled that the regulation of recreational facilities was permitted because three out of four items sold at its snack bar were purchased outside of the state thereby subjecting the facility to the jurisdiction of the federal regulation under the Commerce Clause.

Again, it is clear that the intention of the act itself was to protect consumers against discrimination based on race, religion, or national origin.  The intention of this particular legislation is clear and understandable.  For the everyday person, the argument endorsed in Daniel v. Paul becomes problematic in that it smacks of interpretation driven by outcome.  For most readers, it is very hard to swallow that the Commerce Clause comes into play because some or even most of the items sold in a related activity may have been subject to interstate purchase.  This stretch makes it hard to find any tacit alignment that bolsters the rest of the arguments many of which appear weak and overly broad.

Gun Free School Zones

Gun-Free School Zones v. Lopez, the Supreme Court was faced with a challenging decision.  A 12th grade student had been convicted of carrying a concealed handgun into a school in violation of the Gun–Free School Zones Act of 1990.  The lower court found that in Wickard v. Filburn the Court had ruled that Congress was exercising its Commerce Clause power to police local economic activity because the individual states were powerless to regulate it themselves. More specifically, this was determined to be the case because in the opinion of the court only the federal government was able to manage the national wheat supply and control prices.  The lower court reasoned that if you extrapolated the same arguments to acts of gun violence because crime negatively affected education, congress could conclude that crime in schools clearly affected commerce; therefore it ought to be federally regulated.

Nationalizing Police Power

One can rapidly come to the conclusion that if this in fact were true, the entirety of all police power in all states could be nationalized because all crime therefore has some impact on interstate commerce. In this case, the Supreme Court overturned the lower courts verdict.  Justice Thomas, in his concurring opinion, argued that allowing Congress to regulate intrastate, noncommercial activity under the Commerce Clause would confer on Congress a general “police power” over the entire nation.

Clearly, once again, the intention was to find some way to allow the federal government to help protect the citizenry from harmful acts.  While the intention was and is noble, the argument that this is an applicable extension of federal power under the Commerce Clause simply does not hold.  In allowing these stretches to carry our normal imagination to such levels that old Rod would be proud.  Mr. Sterling started each show with the quote, “You’re traveling through another dimension — a dimension not only of sight and sound but of mind. A journey into a wondrous – land whose boundaries are that of imagination. That’s a signpost up ahead: your next stop: the Twilight Zone!”  The difference between Mr. Sterling’s excursions and the commerce clause debate, are that the ramifications of this mind trip have very significant  consequences on each of us, and ultimately the health care we will be able to
access.  In the last and final article we will discuss the Patient Protection and Affordable Care Act. (PPACA)

Social Forum: The Pharmaceutical Industry – Round Two

Bruce Hurwitz Presents is a live 30-minute call-in program. Shows fall under four different segments: Ph.D. Forum introduces listeners to doctoral and post-doctoral students and their cutting-edge research in the arts, … sciences, or humanities; Business Forum features guests from the for-profit and non-profit sectors discussing their careers and professions; guests on Social Forum discuss current events and trends, especially pertaining to employment issues; and Oral Essays features presentations by Bruce Hurwitz on topics pertaining to employment, careers and business. Bruce is the president and CEO of Hurwitz Strategic Staffing, Ltd., a New York City-based boutique executive recruiting firm. A recognized expert on employment and career issues, he has been cited in well over 160 articles nationally and internationally. He holds a Ph.D. in International Relations from the Hebrew University of Jerusalem, Israel, and has over 80 academic and journalistic publications on topics ranging from international law to career advancement.

Social Forum: The Pharmaceutical Industry – Round Two is todays program.  Tom had the privalege to be Bruce’s guest today.  Check it out!
www.blogtalkradio.com/bhp/2011/06/27/social-forum-the-pharmaceutical-industry–round-two

Health Care in America: Where We’ve Been, Where We Are, and Why Health Care Needs More Reform!

Tom Loker has written a book that takes the reader on an intriguing journey as he/she walks along with Loker from the inception of this country to learn about the behind-the-scenes goings on with health conditions, health maladies, health remedies, and evolving health care reform. Beginning with the state of health when the Pilgrims first hit that “rock” to the current day when Congress locked horns, Loker stuns the reader with knowledge never Continue reading