Power is not an institution and not a structure

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Mid-20th Century French philosopher Michel Foucault wrote extensively about how individuals and institutions enact power, noting that hierarchies often establish power through their ability to discipline and punish, while citizens of these governments find a way to feel powerful through rebellion. In many ways, the U.S. democratic system has encouraged this type of defiant feedback since its inception.

Over the holidays, the American College of Cardiology (ACC) demonstrated its freedom (to attempt) to reject a government proposal by filing a complaint against the Department of Health and Human Services Secretary Kathleen Sebelius in U.S. District Court for “unlawfully” adopting the payment rates for cardiology services in the 2010 Medicare Physician Fee Schedule (MPFS).

This aggressive move represents an extension of ACC’s efforts to bureaucratically oppose the implementation of these new rates, which could prove damaging for many cardiology practices through the reimbursement cuts.

The highly contentious healthcare reform bill passed in the Senate on Christmas Eve morning after Senate leaders won over the final hold out, Ben Nelson, D-Neb., leading to another demonstration of rebellion. Thirteen state attorneys general have asked Congress to delete from final legislation the provision of the Senate’s healthcare bill that would exempt Nebraska from having to pay for newly eligible Medicaid recipients.

In the letter to Senate leaders, the AGs noted that state officials have noted “contemplation” of a lawsuit if the provision is not deleted.

Regardless of how these latest debates will turn out, the Centers for Medicare & Medicaid Services has decided to use its power to instruct its contractors to hold claims including services paid under the MPFS for the first 10 business days of January (Jan. 1 through Jan. 15) for 2010 dates of service. The agency is anticipating a possible passage of healthcare reform, which would mean that the 2010 MPFS would also be altered.

Interestingly, Foucault, who generally disapproved of liberal democracies, found a correlation between the power to punish and the power to cure, highlighting its highly impactful purpose in society: In its function, the power to punish is not essentially different from that of curing or educating.

On these topics, or any others, please feel free to contact me.

Justine Cadet