2012-04-27 - Rant Roulette

Highway robbery: An extra $2 per gallon for gas bought with a credit card

A recent Huffington Post story reports on some gas stations on Long Island in New York doing something unconscionable: charging an extra $2 or more per gallon of gasoline for paying with a credit card.

Gas stations are allowed to charge a higher price for a different method of payment, and so far there is no law stating that gas stations in New York can’t do this. New York law allows discounts for cash, but not credit card surcharges. A prior story about this same issue from newsday.com contains this interesting tidbit:

The attorney general’s office said Tuesday that none of the stations
were prosecuted because the law doesn’t specify how to calculate the difference between a discount for cash or a surcharge for credit.

Before you wipe your brow and say “glad I don’t live in New York”, many other states including Texas have (or at least had) similar laws on the books. This ambiguity in the law appears to be a “get away with it” card for the gas stations who want to cash in on the convenience of paying with plastic.

I think it’s bad enough that merchant fees now allow a minimum for credit card purchases of up to $10 depending on what the merchant wants to set. Back when I had something of a blog about personal finance (I never really got it where I wanted it in terms of readership), these minimums were flat out forbidden by Visa and Mastercard, and were technically allowed by American Express and Discover if they applied to all credit cards equally (in practice, unless the merchant only took AmEx or Discover, it was still forbidden). These limits were struck down shortly after I closed the blog to new entires.

Cash is good for some things: buying into a home poker game, refreshments at a ball game, bus fare, coffee shops, fast food, etc. (Though there are cases for some of these where I’d prefer to pay with debit card even then.) But I think expecting the motoring public to carry cash with them to buy gasoline–which these days in the US, often implies at least $50 for a fillup–is ludicrous. If there is a valid reason for fees being this high, it needs to be addressed. If it’s what I think it is (that being pure greed) then it needs to be legally reined in somehow.

I would like to see cash remain an option for buying small amounts of gasoline or other motor fuels. However, it should not be the only choice. Indeed, since I don’t think gas stations take checks anymore, bilking credit and debit card customers for $2 per gallon would make cash the only real choice. And the law needs to catch up to the fact that there is really little difference between a discount for cash payment and a surcharge for non-cash payment. Trying to forbid the latter and allow the former is crazy when most people consider them one and the same. Either call them surcharges for non-cash (credit/debit) or cash discounts, and limit the allowable amount to something reasonable which would adequately cover the difference in the merchant’s costs in accepting one over the other.

Due process? What due process? – The Dajaz1.com story

While the story is a bit stale, I wasn’t able to blog about it when it was first published, and the possibility of this happening again is still very timely.

Techdirt reported last November on the seizure of a popular music blog’s domain and its eventual return to its rightful owners. What’s alarming here is the length of time that the government was able to unilaterally deny a legitimate blog of its traffic, and the profits from that traffic.

The introduction paragraph to the story is so well written that I’m going to quote it in its entirety here. The parallels to the digital world should be relatively obvious:

Imagine if the US government, with no notice or warning, raided a small but popular magazine’s offices over a Thanksgiving weekend, seized the company’s printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine’s lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

The story involves Dajaz1.com, a hip hop blog well known enough to make Vibe’s list of top blogs in the category. So this is not just some small hip hop fan blog off in the corner of the Internet that nobody cares about, this is a relatively well known and popular blog.

Again, quoting the story:

Despite all of [the evidence that the site was not infringing copyright], the government simply seized the domain, put up a big scary warning graphic on the site, suggesting its operators were criminals, and then refused to comment at all about the case. Defenders of the seizures insisted that this was all perfectly legal and nothing to be worried about. They promised us that the government had every right to do this and plenty of additional evidence to back up its claims. They promised us that the government would allow for plenty of due process within a reasonable amount of time. They also insisted that, after hearing nothing happening in the case for many months, it meant that no attempt to object to the seizure had occurred. Turns out… none of that was true.

I’ll summarize the rest of this, because I don’t want to quote the entire story here. First the facts about the rather messed-up seizure and forfeiture laws we have in the US. The Federal government has 60 days to notify the owners of the reason for the seizure. As an example, today is 2012 April 22, so if one of my domains (or one of your domains, or someone else’s domain) was seized today, they would have until 2012 June 21 to actually notify me (or you or whoever) of the seizure.

Now, for a site maintained as a hobby, this would be at worst a significant annoyance. For a site that’s intended to generate profit? Basically, this is a license to kill a business based on mere suspicion, without due process, without a proper trial.

The property owner, once notified, has 35 days to file a claim requesting the return of the property. It’s of course not to the government’s advantage for everyone to contest the seizure, of course, so usually they threaten to file charges or make similar intimidation attempts against those they have stolen, er, seized property from. The seizures are supposed to be temporary, to preserve evidence and/or stop criminal activity. Once a claim is filed, the government then has 90 days to start the full forfeiture proceedings. So, that’s about 150 days total that the government can drag their feet, or to carry the previous example further using today’s date, until 2012 September 19. (The time the property owner delays in filing the claim is the property owner, not the government, dragging his/her/its feet, though the total time could add up anywhere between 150 to 185 days, which using the same example could be as late as early November.)

The lawyer representing Dajaz1, Andrew P. Bridges, aggressively contested the seizure and forfeiture on the site’s behalf. The deadline for forfeiture on Dajaz1.com came and went, and, quoting the story:

Bridges contacted the government to ask what was going on, and was told that the government had received an extension from the court. […]

He also asked for a copy of the the court’s order allowing the extension. The government told him no and that the extension was filed under seal […]

He asked for the motion papers asking for the extension. The government told him no and that the papers were filed under seal […]

He again asked whether he would be notified about further filings for extensions. The government told him no.

He then asked the US attorney to inform the court that, if the government made another request for an extension, the domain owner opposed the extension and would like the opportunity to be heard. The government would not agree.

So, in summary, Dajaz1 was told, through their attorney, “sorry, you can’t have any documentation, it’s all under seal, and we’re not going to tell you if we decide to drag our feet even longer, and we’re not even going to let you be heard in court.” This case was kept under a veil of secrecy that would make some people think someone who owned Dajaz1.com had ties to a major terrorist cell (which of course was not and is not the case).

Further extensions were made, and once the last one expired, finally, Counselor Bridges asked again for the return of Dajaz1.com to its rightful owners, which happened the date of the story, 2011 December 8. That’s just over a year’s worth of profits the site’s owners are out, an amount that can’t even be calculated with any degree of certainty.

Simply put, this is outrageous, and cannot be allowed to continue happening in a sane society. We, the taxpayers, are out that money should Dajaz1 choose to sue for it due to the gross incompetence with which the government agencies involved chose to handle this case. I certainly don’t want my tax dollars being spent to fix these mistakes which could easily have been avoided or at the very least mitigated months earlier.

If we are going to keep the seizure and forfeiture laws (and to be honest, that’s a big, huge if), this is a list of things I can see doing to make them much more fair to the property owners (who should always be assumed innocent until proven guilty and granted due process):

Seizure and forfeiture proceedings cannot normally be filed under seal without just cause. Any sealed filing will need to be reviewed by an independent judge or arbitrator assigned solely to the task who can decide if the cause is justified. If not justified, the filing is immediately unsealed, it cannot be withdrawn prior to unsealing.
There needs to be a real risk of sanctions against the government agencies who completely screw up and rob legitimate website owners of revenue, whether negligently or willfully. To some, the income from a website is how they stay fed and housed. My understanding is that those who work for the government, who robbed Dajaz1.com’s owners of a year’s worth of advertising revenue as well as causing huge damage to their reputation, have not been sanctioned at all. (I would love to be wrong about this, so please let me know if this is indeed not the case.)
The length
of time the government has to notify seized property owners, 60 days, is way too long and practically encourages the government to drag its feet. This should be no longer than 7 days unless the government cannot locate the owner during that time, then a maximum of 30 days with an exception if there is emergency.
The length of time the government can wait to start forfeiture, 90 days, is also way too long and again practically encourages the government to drag its feet. This should be shortened to 30 to 60 days, with no extensions unless there is an emergency (such as a natural disaster).
The tactic of intimidating or threatening owners who contest a seizure should be banned by a specific law against the practice. (“When governments fear the people, there is liberty. When the people fear the government, there is tyranny.” — Thomas Jefferson)
If no criminal case is filed, return of the property
should be automatic. An attorney should not have to ask for the property’s return. This is condescending and an insult to those who have already been wrongfully deprived of their property. (The Jefferson quote applies somewhat here too.)
Courts should be allowed to severely sanction a government agency involved in a seizure or forfeiture proceeding who causes a delay the proceedings without just cause. Ideally, the law would say in as many words that in such a proceeding “time is of the essence.”

As a rule, I don’t support seizure and forfeiture laws, but any law should be fair to everyone. Maybe it would make seizure and forfeiture proceedings so much trouble to use that they wouldn’t be used as often anymore. I don’t necessarily think that would be a bad thing.

Revisiting the Eric Cropp story and safety in medicine

One of my more popular posts to this blog was about Eric Cropp, the pharmacist in Ohio who wound up actually facing criminal charges after the death of a pediatric cancer patient under his care. I made that post back in 2009 August, back when this was my personal blog and not yet called Rant Roulette. So it’s high time I re-visit the story and what has happened since then, and some other healthcare-related matters. This is going to be a long one, because a lot has gone on since the original post.

First, if you haven’t seen it before, is Eric Cropp being interviewed by David Mattingly of CNN. You may want to skip this if you are easily disturbed; I found it quite difficult to watch myself. Conveniently, they pair this with an interview of only Emily’s mother, Kelly Jerry, not her father, Chris Jerry. The distinction is important, as noted below.

This post on Philly.com’s Check Up blog describes some of what has gone on since then. The post dates from 2011 November, during a period I was not very active posting to this blog. Quoting the post:

As I wrote in a previous blog that touched on this case, I completely understand the angst and the call for retribution by families left behind in the wake of a fatal medical error. I also recognize they need someone to blame and to hold accountable for the pain of their horrific loss. But I truly admire one family member who took a different path, Chris Jerry, Emily’s dad. Almost from the start, he opposed Mr. Cropp’s jailing, and now he’s even forgiven him. In fact, Chris Jerry and Eric Cropp have been working together, traveling around the country to speak at pharmacy meetings to help create awareness of the vital importance of safety practices. I’ve received several emails from colleagues around the country who’ve attended these programs—enthralling is how they describe it.

(Contrast Chris’s attitude with that of Emily’s mother, Kelly Jerry, who was and is all too willing to hang Eric Cropp out to dry.)

The story goes on to mention the Emily Jerry Foundation, which is dedicated to increasing patient safety by minimizing the human error in medical treatment, started shortly after Emily’s death in 2009.

I applaud Chris Jerry for first, realizing that throwing Eric in jail really doesn’t solve anything, and second, for forgiving him for what could be said wasn’t really his fault, even if it was legally his responsibility. I say it like this because of this comment made by The Redheaded Pharmacist on a post about the Eric Cropp case by The Blonde Pharmacist:

I worry about the working conditions for pharmacists after reading these stories: long hours and no breaks have to play a role in some of the mistakes that are being made in pharmacies around the country. The problem is that if an incident does happen, it is usually the pharmacist and not the employer that takes the blame and the fall for what happens. I’m not saying pharmacists are without fault and should avoid responsibility for their mistakes while on duty, but to place the full blame with them seems to be a bit short sighted. At some point, reducing hours, [increasing] workloads, and no breaks have to play a role in the incidence of errors but the employer will simply bring in another pharmacist and move on if the one on duty is disciplined.

The ISMP’s article has the rather derisive-looking headline “Ohio government plays Whack-a-Mole with pharmacist”. Indeed, without reforming the system, and just sending the pharmacists and other healthcare professionals off to jail or just revoking their licenses, it’s just a game of Whack-A-Mole, or treating the symptoms without curing the disease. Quoting the article:

No matter how hard we try, human endeavors carry inherent risks. We can try to do everything possible to make it safe for patients, but we often fail to plan for the unexpected—a computer system that is nonfunctional when you arrive at work, causing a serious backlog of work; an inadequate level of staff on duty because of unexpected absences; a distracted technician working in a hectic high-risk IV area—just a few of the unexpected conditions in Eric’s case on the day of the event. As Marx notes in his book, civil, criminal, and regulatory systems are increasingly obscuring the differences between intentional, risky choices and inadvertent human fallibility. Thus, the net cast to catch criminals is now catching those whose only crime is that they are human. The criminal courts are playing the most extreme version of Whack-a-Mole with the lives of all healthcare professionals, for who among us cannot say, “It could have been me” when thinking about the plight of Eric Cropp and Emily Jerry?

(The article is aimed at healthcare professionals, so that’s who the “us” is referring to.)

Until it’s standard procedure for the workflow of healthcare professionals–pharmacists in particular–to allow for normal work and meal breaks, until nurses don’t do just plain stupid things like call in chemotherapy orders hours early so the pharmacists feel rushed to check the solution so it can be dispensed (like Emily’s nurse did), until pharmacy computer systems are reliable so they don’t go down for hours at a time (like they did at Eric’s pharmacy), this is still destined to happen again to someone, somewhere.

And there are other situations similar to this. This entry in HealthBlog refers to this story about mis-mixed colchicine involving Gary D. Osborne and his company, Apothécure, in Dallas, Texas. (Steve at HealthBlog does not link to this latter story, it’s possible he intended to but the link in the article goes to an unrelated story.) Gary Osborne has just as much nominal responsibility for his employees/assistants as Eric Cropp did when his assistant mis-mixed the chemotherapy for Emily Jerry. The Food and Drug Administration’s Office of Criminal Investigations (FDA-OCI) findings pursant to their investigation were that Gary and his company committed two violations of the Federal Food, Drug, and Cosmetic Act (FDCA) due to some colchicine vials containing a lethal dose.

While there is some relief that at least the Justice Department and the FDA-OCI understand it’s merely human error and are only charging Gary and Apothécure with misdemeanors, it’s still troubling that a human error is being pursued under criminal law at all. It’s as if nothing was learned from the Eric Cropp case, or what was learned is being willfully ignored.

I strongly believe criminal prosecution should be reserved only for the most egregious of offenses, where there is a repeating pattern of conduct which endangers human life. Are there cases where criminal prosecution is the most fitting remedy? Yes. Does a shipment of two bad lots of colchicine qualify as such an egregious offense? Probably not. If it had been a repeat pattern over a longer period of time of substandard quality control, then criminal prosecution would make more sense to me. In this case, I don’t think Gary or Apothécure should be subject to more than a civil or administrative penalty.

Quoting Steve’s Healthblog post:

This was also dealing with a compounded drug… we all are aware of how the FDA is AGAINST Pharmacist compounding… could these criminal charges – 5 years after the fact be at the prodding by the FDA to the Justice dept?

If the FDA is pursuing this only to advance its own agenda against compounding pharmacies, it’s despicable and abhorrent. Especially when there are so many other areas of healthcare that need more aggressive and stringent regulatory oversight.

There’s another great post in HealthBlog which shows where the priorities really lay for at least one pharmacy. Hint: it’s not about patient safety, or customer service. Quoting the post:

[…] [T]he chain store where [another pharmacy blogger] works… puts anyone wanting a flu/vaccine shot AHEAD of all waiting Rxs.. […] WHY??? because … giving flu/vaccine are MORE PROFITABLE to the chain than filling the typical prescription(s).

In all honesty, this kind of thing should be illegal, and the pharmacy chains doing this should be hit with huge monetary penalties. This is the most despicable, horrendous, and egregious thing I have ever heard of in our healthcare system! It’s a shame that the blogger in question does not (and cannot, lest he risk his job) reveal which chain pharmacy this is with this insane policy.

When an otherwise good pharmacist like Eric Cropp loses his license and goes to jail after what is, in all honesty, one really bad day, and we have pharmacists willing to go along with ludicrous policies like this, it’s a wonder we don’t have more meltdowns in our healthcare system.

I fear the message we are sending to would-be pharmacists is this: Sure, become a pharmacist. Work 12 hour days with no rest breaks, let alone meal breaks, and take all the blame when one of your technicians screws up despite your best efforts to check his/her work. And if you’re really unlucky, you make a mistake (due to the work conditions setting you up for failure) and someone dies, you could actually go to prison and lose your license (like Eric Cropp did) while the technician that actually made the mistake walks free.

(There’s another way to look at this, too. How many other pharmacists around the US have made a mistake resulting in someone’s death in the past 20 years? I would be willing to bet most of them didn’t go to jail for their mistakes. So, if we assume for the moment that Eric Cropp’s imprisonment was just, that means that untold numbers of pharmacists out there got away with it.)

In light of this, who will want to become a pharmacist today? What happened to Eric Cropp is just the beginning of setting us up for a serious shortage of pharmacists within the next 10 years, if not sooner. We can’t wait 10 years to realize we have this kind of a problem. The time to start is now.