NEW YORK TIMES STORY SHOWS HOW HEALTH BILL'S EFFORTS TO CUT DOWN WHAT HEALTH CARE PROVIDERS ARE ALLOWED TO DO CAN RESULT IN LIVES LOST

December 22. The health care bill which the Senate is about to adopt authorizes the Secretary of Health and Human Services to impose "efficiency" measures on doctors and hospitals throughout the country, [1] and it changes the way health care providers treating senior citizens under Medicare will be paid – instead of getting a set amount for each test or procedure, their reimbursement will be changed depending on what "value" the government believes will come from it.

However, an article in this morning’s New York Times challenges the idea that this approach will save money without denying needed and effective lifesaving care.

The Obama Administration’s director of the Office of Management and Budget, Peter Orzag, has attacked the fact that the Ronald Reagan University of California at Los Angelos [UCLA] Medical Center spends more than Rochester, Minnesota's Mayo Clinic. "One of them costs twice as much as the other, and I can tell you that we have no idea what we’re getting in exchange for the extra $25,000 a year at U.C.L.A. Medical. We can no longer afford an overall health care system in which the thought is more is always better, because it’s not."

But the Times article cites recent research showing that "[T]he hospital that spent the most on heart failure patients had one-third fewer deaths after six months of an initial hospital stay."

The Times reports:

Take the case of Salah Putrus, who at age 71 had a long history of heart failure After repeated visits to his local hospital near Burbank, Calif., Mr. Putrus was referred to U.C.L.A. this year to be evaluated for a heart transplant.

Some other medical centers might have considered Mr. Putrus too old for the surgery. But U.C.L.A.’s attitude was "let’s see what we can do for
him," said his physician there, Dr. Tamara Horwich.

Indeed, Mr. Putrus recalled, Dr. Horwich and her colleagues "did every test." They changed his medicines to reduce the amount of water he was retaining. They even removed some teeth that could be a potential source of infection.

His condition improved so much that more than six months later, Mr. Putrus has remained out of the hospital and is no longer considered in active need of a transplant.

The Obama Administration and Congressional architects of the health care bill have relied heavily on a series of studies by researchers at Dartmouth which seem to show that the greater amounts of money spent on health care in some regions of the country don’t produce better outcomes and hence are wasted. This conclusion is the basis for much of the health care bill’s efforts to use the power of the federal government to force doctors and hospitals to spend less per patient.

But, as the Times story points out, "Because Dartmouth’s analysis focuses solely on patients who have died, a case like Mr. Putrus’s would not show up in its data. That is why critics say Dartmouth’s approach takes an overly pessimistic view of medicine: if you consider only the patients who die, there is really no way to know whether it makes sense to spend more on one case than another."
　

Dr.[J. Thomas] Rosenthal [, chief medical officer of the U.C.L.A. Health System,] and his U.C.L.A. colleagues . . . say that unless the distinction can be clearly drawn between excellence and excess in medical care, efforts to cut wasteful spending could be little more than blunt rationing.

"There’s a real risk of doing harm here — real harm," he said.

NRLC WRITES SENATORS LISTING ABORTION, RATIONING ELEMENTS OF SENATE HEALTH BILL

The National Right to Life Committee has sent a letter to Senators setting forth the abortion and summarizing the rationing elements in the Senate health care restructuring bill, avaliable here.

KEY RATIONING ELEMENTS IN SENATE BILL

Below is a summary of some of the most important rationing elements that threaten Americans's lives in the Senate's health care restructuring bill headed toward final passage on Christmas Eve:

– The "Independent Payment Advisory Board, " as a result of the Manager’s Amendment, not only dictates cuts in Medicare but also is directed to make recommendations to "slow the growth" in PRIVATE (non-federal) "health expenditures . . . that the Secretary [of Health and Human Services] or other Federal agencies can implement administratively." Section 10320(a)(5), adding Section 1899A (o)(1)(A) of the Social Security Act, p. 188. To the extent these are effective, they will limit the ability of private citizens to spend their own money to protect their own lives, by obtaining health care or health insurance that is not rationed.

– Section 1003 empowers the Commissioners of the state Health Insurance Exchanges to exclude from the exchange plans offered by health insurance issuers whom the they consider to have "excessive or unjustified premium increases." This essentially grants to state bureaucrats the discretion to impose price controls on insurance premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain "private fee-for-service" Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid "managed care" limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 3209 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Provisions in the bill could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or "quality of life." Section 3014, as altered by the Manager’s Amendment, empowers the Secretary of Health and Human Services to impose "efficiency measures," in addition to the "quality measures" already provided for under the Reid Substitute, on health care providers. Much of the professional literature advocates the use of "quality of life" standards that devalue the lives of older people and people with disabilities in such measures. While there are limits on the use of comparative effectiveness research to justify denial of treatment based on quality of life criteria under Section 6301( c) of the bill, the quality and efficiency measures are not made subject to these critically important anti-discrimination protections.

-- Under the "Shared Decisionmaking" provisions in Section 3506 funding is authorized to develop "patient decision aids" that are supposed to help "patients, caregivers or authorized representatives . . . to decide with their health care provider what treatments are best for them based on their treatment options, scientific evidence, circumstances, beliefs, and preferences." Under the bill, the Department of Health and Human Services would contract with an "entity" that is to "develop and identify consensus-based standards to evaluate patient decision aids for preference sensitive care . . . and develop a certification process" for these "patient decision aids." Additional grants and contracts would be awarded to develop such "patient decision aids" which are to include "relative cost of treatment or, where appropriate, palliative care options" and to "educate providers on the use of such materials, including through academic curricula." Money would be awarded to establish "Shared Decisionmaking Resource Centers . . . to provide technical assistance to providers and to develop and disseminate best practices . . ." While there is language stating the materials are to be "balanced" to help patients and their representatives "understand and communicate their beliefs and preferences related to their treatment options," the concern, is the same as that with the promotion of advance care planning: Given the strong views many in the medical community have about poor quality of life and the considerable emphasis on saving costs, these measures will in fact subtly or otherwise "nudge" in the direction of rejecting costly life-saving treatment.

In early 2010, a final bill composed of negotiated compromises between the Senate and House bills will be submitted for a final vote in both chambers. Rationing provisions in the House bill are similar to, and in some cases worse than, those in the Senate bill.

MANAGER’S AMENDMENT INTENSIFIES RATIONING

The Manager’s Amendment to the Senate health care restructuring bill offered by Majority Leader Harry Reid (D-NV) on December 19 contains two provisions that intensify the rationing already present in the Reid Substitute.

– Taking a significant step closer to the powerful Federal-Reserve-Board-like Federal Health Board envisioned by former Senator Tom Daschle, Obama’s original nominee for health czar, the Manager’s Amendment renames and expands the authority of what the Reid Substitute called the "Independent Medicare Advisory Board." Its new title is the "Independent Payment Advisory Board" [Section 10320(b), p. 189] and it is directed to make recommendations to "slow the growth" in PRIVATE (non-federal) "health expenditures . . . that the Secretary [of Health and Human Services] or other Federal agencies can implement administratively." Section 10320(a)(5), adding Section 1899A (o)(1)(A) of the Social Security Act, p. 188. To the extent these are effective, they will limit the ability of private citizens to spend their own money to protect their own lives, by obtaining health care or health insurance that is not rationed.

– Section 10304 (p. 152) empowers the Secretary of Health and Human Services to impose "efficiency measures," in addition to the "quality measures" already provided for under the Reid Substitute, on health care providers. Much of the professional literature advocates the use of "quality of life" standards that devalue the lives of older people and people with disabilities in such measures. While there are limits on the use of comparative effectiveness research to justify denial of treatment based on quality of life criteria under Section 6301( c) of the Reid Substitute, the quality and efficiency measures are not made subject to these critically important anti-discrimination protections.

A more detailed analysis of these rationing-promoting elements of the Manager’s Amendment follows:

INDEPENDENT PAYMENT ADVISORY BOARD AUTHORITY TO RECOMMEND, AND HHS SECRETARY TO LIMIT, RIGHT TO USE ONE’S OWN MONEY TO SAVE ONE’S OWN LIFE

Under the Reid Substitute’s Section 3403 (pp. 1000- 1053) as modified by the Manager’s Amendment Section 10320 (pp. 180-90), the "Independent Payment Advisory Board" will have sweeping powers.

As originally set forth in the Reid Substitute, the Board was called the "Medicare" Advisory Board, and its mission was focused on cutting Medicare reimbursement rates (see below) – a duty it retains. However, the Manager’s Amendment dramatically expands its authority, so as to work to limit nonfederal health care spending, as well. Starting in 2014, "and at least once every two years thereafter," the Board is to make recommendations "to slow the growth in national health expenditures" other than Federal health care programs – recommendations "that the Secretary or other Federal agencies can implement administratively," as well as recommendations for legislative action. To the extent these are effective, they will limit the ability of private citizens to spend their own money to protect their own lives, by obtaining health care, or health insurance, that is not rationed.

For 2015, unless Medicare spending is projected NOT to keep up with the rate of medical inflation (specifically, unless it is projected to come in at or below a "target" set at the midway point between medical inflation and the average inflation rate for all goods and services , the "Consumer Price Index-Urban"), the Board is to specify how to cut Medicare payments by either the difference from the target or half a percent, whichever is less.

For 2016, the Board is to specify how to cut Medicare by the lesser of the difference from the target for that year or 1 percent, and for 2017 by the lesser of the difference from the target for that year or 1.25 percent.

For 2018 and subsequent years, the target shifts to the growth in Gross Domestic Product (GDP) per capita, and the Board must specify how to cut Medicare payments by the lesser of the difference from that target and 1.5 percent.

Each year, the Secretary of Health and Human Services must implement the Board’s directives unless Congress, within a given deadline, legislates an alternative set of restrictions to accomplish the same result. However, Congress could not reduce the net of the targeted cuts unless three-fifths of both chambers voted to do so. The bill goes so far as to forbid a future Congress from repealing these provisions, except for a one-time opportunity in 2017! Section 3403, adding Social Security Act Section 1899A(d)(3)( C), p. 1020.

How is the Board to bring about these Medicare reductions? On its face the bill instructs the Board not "to ration health care, raise revenues or Medicare beneficiary premiums . . . , increase Medicare beneficiary cost-sharing . . . , or otherwise restrict benefits or modify eligibility criteria." Section 3403, creating Social Security Act Section 1899A(c)(2)(A)(ii) , p. 1004. Predominately, the reductions will have to come in reimbursement rates for health care providers.

This is likely to have either – or, more likely, both– of two rationing effects. First, an increasing number of Medicare providers, being paid further and further below their costs of providing care, would stop accepting new Medicare patients. Second, the Board could change the way reimbursement rates are structured, away from a fee-for-service model toward a "capitated" model, for example, under which practitioners are paid a set annual amount per patient, or toward an "episode" model somewhat similar to the DRG payment system for hospitals, under which a set amount is paid per illness or injury. In either of these cases, the physician or other health care provider would have a strong financial incentive to limit treatment, especially if it is costly. So, in compliance with the statute, the Board itself would not be "rationing" treatment – instead, it would be compelling health care providers to do so.

"EFFICIENCY" MEASURES THAT MAY LEAD TO DISCRIMINATORY DENIAL OF TREATMENT BASED ON DISABILITY, AGE, AND OTHER QUALITY OF LIFE CRITERIA

Section 10304 (p. 152) empowers the Secretary of Health and Human Services to impose "efficiency measures," in addition to the "quality measures" provided for under the Reid Substitute, on health care providers. These measures are to be incorporated "in workforce programs, training curricula, and any other means of dissemination determined appropriate by the Secretary." Section 3014(b) adding Social Security Act Section 1890A(b)(1)(A) (p. 709). They are to be used in the calculation of value-based purchasing from hospitals, and renal dialysis services must abide by them or be penalized. Health care providers, including hospices, ambulatory surgical centers, rehabilitation facilities, home health agencies, physicians and hospitals must provide reports, generally made publicly available, based on these measures. Consequently, they exercise considerable influence on how health care providers practice medicine, and consequently on what treatment patients do – and do not – receive.
In the medical and bioethical literature, quality and efficiency measures are often based on "quality of life" standards that discriminate on the basis of age and disability.

Accordingly, during the period when the group of six Senators were negotiating in an attempt to achieve a bipartisan health care bill, agreement was reached to make anti-discrimination language applicable to the results of comparative effectiveness research. See note 1. This language remains in the Reid Substitute, Section 6301( c), adding Social Security Act Section 1182 ( c), (d) and (e) , pp. 1685-87. However, the quality and efficiency measures are NOT made subject to the same limits on employment of quality of life criteria that are applied to the use of comparative effectiveness research under Section 6301( c) of the Reid Substitute. Consequently, the Secretary is free to formulate such measures in a way that has the effect of rationing treatment on the basis of disability, age, or other "quality of life" criteria, as advocated by many mainstream bioethicists.

NELSON GIVES REID 60TH VOTE; SENATE BILL WILL PASS; MANAGER'S AMENDMENT INTRODUCED

9am Saturday, December 19, 2009: Senator Ben Nelson (D-NE) has agreed to vote for cloture, which will enable passage of the Senate bill and Senate Majority Leader Harry Reid (D-NV) has introduced the Manager's Amendment in containing all the compromises and provisions he has agreed to in order to secure the 60 votes needed to close debate (cloture) and thus enable passage of the bill. Senator Nelson sought to make a floor statement announcing the reasons for his decision, but Senate Republicans objected, and also insisted on Senate clerks reading the Manager's Amendment.

NRLC's Powell Center for Medical Ethics will analyze and report on the rationing aspects of the 383-page Manager's Amendment, which will take some hours.

THE CONTROVERSIAL HOUSE 1233 ADVANCE PLANNING REAPPEARS IN SENATE

Sen. Rockefeller (D -Wv.) has filed an amendment that would incorporate the House's controversial 1233 Advance Planning Provisions. Although time is running out for this amendment to be considered on the floor, there is the very real possibility that this dangerous language appears in the "manager's amendment"(this will serve as one large amendment meant to address all outstanding Democratic concerns).

During the summer there was considerable criticism of provisions in the House health care bill that would reimburse Medicare physicians to discuss "advance care planning" with their senior citizen patients, in the express expectation that many would complete advance directives rejecting life-preserving medical treatment and thus save substantial sums of money, as well as other sections promoting such advance directives. More on how these dangerous provisions would work is available here.

In reaction, neither the bill reported in July from the Senate Health, Education, Labor and Pensions Committee nor that reported in October from the Senate Finance Committee contained similar provisions. The Reid bill did incorporate advance planning language (explained here), but did not mirror the dangerous House language.

During the Senate Finance Committee deliberations, Senator Rockefeller spoke out strongly in favor of including House-style advance planning provisions. More recently, a speech from a long-time advocate reveals that his strategy is to do so "at the llth hour."[1]

Presumably, that 11th hour has arrived, and there is a very great possibility that Sen. Rockefeller may be successful in having these Advance Planning provisions inserted into the "manager's amendment."

Author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

The shading in of human particulars is what makes [House Bill section 1233] so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling. [2]

[1] "Senator [Jay] Rockefeller [(D-WV)] . . . has had legislation in place to promote advance care planning . . . [;] his staff has said that he plans to, at the 11th hour, to step in and try to use his influence to put it back into the legislation as an amendment."

Myra Christopher, President, Center for Practical Bioethics, in October 1, 2009 Kansas City Rotary Club speech

[2] www.thedailybeast.com/blogs-and-stories/2009-08-11/obamas-euthanasia-mistake/

RATIONING IN SENATE BILL LIKELY TO INTENSIFY

An amendment likely to be added to the Senate health care restructuring bill by Majority Leader Harry Reid would empower federal bureaucrats to impose requirements on private insurance plans with the explicit intent of limiting Americans’ right to spend their own money, if they choose, to save their own lives.

On Wednesday, Senators Jay Rockefeller (D-WV), Joseph Lieberman (I-Ct.), and Sheldon Whitehouse (D-RI) introduced an amendment (# 3240) to the Senate health care restructuring bill, which it is widely reported Senate Majority Leader Reid (D-NV) will include in the mammoth “Manager’s Amendment” he will introduce just in advance of the key “cloture” votes designed to end debate preparatory to adopting the bill. Amendment 3240, which the sponsors went to the Senate floor Thursday to advocate, expands the powers of the Independent Medicare Advisory Board (the Board) so that it will cover not only Medicare, but also all the private insurance plans in the “exchanges” the bill establishes for people annually to choose their health insurance.

The Board would be directed to make recommendations that the Secretary of Health and Human Services could then impose that, in the sweeping and vague language of the amendment, would in their opinion promote “integrated care, care coordination, prevention and wellness, and quality and efficiency[,] ... decrease health care spending, and [bring about] other appropriate improvements.” In addition to the elements characteristic of managed care plans that would be required, note the explicit directive to “decrease health care spending.” All of the requirements presumably are aimed at forcing the privately insured to spend less on healthcare, and the list of requirements is open-ended. Plans deemed to spend too much money on health care would be evicted from the exchange.

Instead of allowing Americans themselves to balance cost, benefits, and quality when choosing among competing health plans in the exchanges, their choice would be subject to potentially drastic restrictions. Americans’ choice to spend their own money for health insurance they judge will be less likely to deny treatments and otherwise ration care would be limited.

SENATE VOTE BEFORE CHRISTMAS -- WILL THEY OR WON'T THEY?

It is presently unclear whether a vote to adopt the Senate heath care restructuring bill will occur before Christmas or not.

According to InsideHealthPolicy.com, at a meeting with "key stakeholders" late last week, senior staff from the majority leadership sketched out a scenario for a vote on Tuesday, December 22 or Wednesday, December 23. The end game would be triggered by the filing of cloture motions -- to cut off debate and proceed to a vote-- on 3 items. One would be the so-called "manager's amendment" which is expected to contain all the compromises necessary to get 60 votes. A second would be on the Reid Substitute, as amended by adoption of the manager's amendment. The third would be on the adoption of the bill itself, a House-passed revenue measure,as replaced by the amended Reid Substitute. Once cloture is voted on each of these, there would still be 30 hours of debate permitted under the Senate rules before it could come to a vote. During that period any "germane", that is to say, related, amendments could be offered, but each could be subject to an undebatable motion to "lay on the table," which has the effect of killing it. (This, for example, is the mechanism that was used to defeat the Nelson-Hatch amendment against abortion funding in the bill.)

This scenario would require that the cloture motions be filed no later than Tuesday or Wednesday of this week. In order for that to occur, Majority Leader Reid would presumably have to be sure of his 60 votes by then, meaning that the Congressional Budget Office score on the "public option" compromise would have be delivered soon, and that it would have to satisfy the relevant Senators or else lead to quick "tweaks" that do.

It has been observed that while this schedule is technically possible, any complication, such as an inability to reach quick agreement yielding 60 votes, would scuttle it. In that case, the vote would have to be deferred until after Christmas. There have been different predictions concerning what the schedule would be in that case. One possibility is that the Senate could take only what has been called a "long lunch break," recessing, for example, only for Christmas Eve through the following weekend, and returning for the week between Christmas and New Year's Day. Others have speculated that there would be so much resistance to such a schedule that if the Senate cannot get to a final vote by Christmas, it might recess until after New Year's Day.

If there is a final Senate vote on the pending health care legislation, the differences between the Senate and House versions would still have to be resolved before a bill could be sent to President Obama for signature. One option that has been discussed would be to send the Senate-passed version directly to the House for a vote, but according to InsideHealthPolicy.com, at the stakeholders' meeting last week the senior Congressional staff suggested that would be impossible -- that there would need to be negotiations among the leaders of the two houses, even if a formal conference committee were not convened.

The White House and its allies have long sought to avoid the health care debate going over into next year, both because they want to get the public's attention focused on planned efforts to address the high unemployment rate and other effects of a poor economy and because it is widely believed that votes to adopt the measure will become more and more difficult to achieve the farther they are pushed into a Congressional election year. December polls have consistently shown majority opposition to the health care bill: by 51 to 41 percent in a December 4/5 Rasmussen poll, by 52 to 38 percent in a December 1/6 Quinnipiac poll, by 61 to 36 percent in a December 2/3 CNN/Opinion Research poll, and by 57 to 34 percent in a December 8/9 Fox News poll.

Nevertheless, the White House and key Democratic leaders remain convinced that failure to pass a health care bill in some form will be more disadvantageous politically than passing even an unpopular one -- in addition to their strong conviction that such legislation is a critically important public policy objective.

“PUBLIC OPTION” COMPROMISE – WILL IT REALLY BREAK THE DEADLOCK?

Multiple sources this morning are reporting that Senate Democrats, behind closed doors, have reached agreement on several key matters associated with the “public option” debate – getting them closer to the necessary 60 votes. It will be sent for a Congressional Budget Office score today, which is expected to take two days, and the details will not be released until after the score is completed, so the compromise can be “tweaked” if deemed desirable at that time.

One reported agreement has come on a proposal to expand eligibility for Medicare to those 55 or older (currently one must normally be 65).

The American Medical Association (AMA), American Hospital Association, and Federation of American Hospitals (FAH) quickly charged that the proposal would harm the availability of treatment because Medicare reimbursement rates to health care providers are significantly below the cost to them of treating Medicare beneficiaries, something that is possible only because providers “cost shift” by charging privately insured individuals more than it costs to treat them and using the resulting surplus to make up for what they lose when treating Medicare patients.

AMA President Dr. J. James Rohack, noting that “the AMA has longstanding policy opposing the expansion of Medicare given the financial projections for the future. Currently, . . . 28% of Medicare patients looking for a new primary care physician are having trouble finding one.”

The American Hospital Association noted, “Medicare pays hospitals just 91 cents for each dollar of care provided, yet the proposal being considered would allow people 55-65 to enroll in Medicare instead of the insurance exchange . . . “

According to InsideHealthPolicy.com, FAH says that “[t]he buy-in policy would „crowd-out‟ private insurance, would be controlled by CMS [the federal government‟s Centers for Medicare and Medicaid Services] and would only pay Medicare rates. The FAH also suggested that members point to MedPAC, which has “„documented negative and declining Medicare hospital margins for seven years.’”

The agreement also reportedly incorporates a provision from Sen. Jay Rockefeller (D-W.V.) which would require insurers to spend at least 90 percent of premium money on medical care, rather than on administrative costs or profits. This is known as a medical loss ratio.

Although no language from Sen. Rockefeller‟s proposal has emerged, generally speaking, a medical loss ratio is the ratio between what the company actually pays out in claims or medical services and what it has left over to cover sales, marketing, underwriting, taxes, and other administrative expenses and profits.

This would occur at the same time as other provisions in the health care bill impose significant additional administrative expenses on insurers involving reporting on quality and efficiency as well as “managing” care to achieve greater “value” for the funds expended. With a narrower margin for administrative expenses, this restriction could lead to is the inability of insurers to operate in the black and have the effect of driving many of them out of the market.

Despite press reports describing a “breakthrough,” these consequences and the opposition they stir may mean that the end of the Senate‟s battle over health care restructuring may not be as imminent as Majority Leader Senator Harry Reid (D-Nev.) would hope.

“COST CONTAINMENT” AMENDMENT WOULD AUTHORIZE HHS SECRETARY TO REQUIRE HEALTH CARE PROVIDERS TO ABIDE BY “EFFICIENCY” STANDARDS

A cost-containment amendment drafted by freshman Democratic Senators Mark Udall, Tom Udall, Jeanne Shaheen, Mark Warner, Kay Hagan , Jeff Merkley, Mark Begich, Roland Burris, Ted Kaufman, Michael Bennet, Al Franken, and Paul Kirk (see prior blog posting) would expand the authority the health care restructuring bill would give to require doctors, hospitals, and other health care providers to abide by "quality measures" so that the Secretary could also impose "efficiency" measures.

This seemingly small provision, in section 10007 on page 13 of the amendment, would have dramatic consequences. It would give authority to the federal government to regulate the "efficiency" of health care providers throughout the country. It takes little imagination to recognize that denial of treatment whose cost is deemed – by federal bureaucrats – to exceed its benefit could thus be imposed by administrative ruling on all patients– in short, government-imposed rationing.

NEW DETAILS ON MEDICARE COMMISSION AMENDMENT

Our Wednesday (December 2) blog post titled “Senate Amendment With More Extreme Rationing Coming?” warned about a potential “cost containment” amendment that might apply the Medicare Commission reimbursement limitations beyond Medicare into the private sector.

More details of this amendment have become available. An internal memo circulated yesterday, although not including amendment language, provides a more specific outline.

It appears that the proposed amendment is intended to authorize the Medicare Commission to make “cost containment” recommendations for private insurance, but (unlike the panel’s recommendations for Medicare, which become law unless Congress acts to override them) these recommendations would require further legislation or administrative regulation to be implemented.

The proposal (being worked on by Senators Mark Udall (CO), Tom Udall (NM), Jeanne Shaheen (NH), Mark Warner (VA), Kay Hagan (NC), Jeff Merkley (OR), Mark Begich (AK), Roland Burris (IL), Ted Kaufman (DE), Michael Bennet (CO), Al Franken (MN), and Paul Kirk (MA)) is described as follows:

“We broaden the scope of the new Independent Medicare Advisory Board to look at total health system spending and make system wide recommendations to assure that we are lowering costs not shifting them. Recommendations for the non Medicare sector would be advisory and non binding.” [emphasis added]

Another aspect of the proposal would increase the authority of the Secretary of Health and Human Services:

“Under this bill, Medicare will reward high quality care, rather than high volume care – with the belief that private payors will follow suit. Medicare will also be able to experiment with promising new models to further lower costs, improve quality and improve patient health. Our amendments would take Medicare further by replacing studies with action, recognizing success stories already underway, modernizing Medicare’s tools to evaluate and implement delivery system reforms that work, and broadening the scope of the Secretary’s authority to put effective cost containment in place.” [emphasis added]

Authorizing the Secretary to determine what is “quality care," without proper protections [1] to prevent discrimination (based on characteristics like age, disability, or terminal illness) against these could be dangerous.

While possible additional threats loom in potential amendments and must be monitored, the Reid Substitute now being debated and amended on the Senate floor already contains significant provisions that, unless corrected, will lead to rationing of lifesaving medical care.

[1] The Reid substitute contains such protection applicable to how Comparative Effectiveness Research may be used, but these protections do not in the current version apply to the already significant authority under the bill of the HHS Secretary to regulate the “quality” of American medical care. See Section 6301(c) [adding Section 1182 (c), (d) and (e)] to the Social Security Act), pp. 1685-87 of the Reid substitute.

Urge Senate Not to Limit Senior Citizens’ Choice to Spend Own Money to Ensure Access to Life-Saving Health Care

Senior citizens’ ability to use their own money, if they choose, to avoid involuntary denial of medical treatment under Medicare could be severely limited by a provision in the Reid health care bill.

Section 3209 of Senate Majority Leader Harry Reid’s (D-NV) proposed health care bill, which the Senate is now debating and amending, would change current law, which now prevents the federal government from limiting the right of senior citizens voluntarily to add their own money of top of the government Medicare contribution so as to be able to obtain health insurance plans under the "Medicare Advantage" program that are less likely to deny treatment.

Instead, the Reid bill provision would authorize the Secretary of Health and Human Services, in her unlimited discretion, to refuse to allow such plans to be offered to senior citizens.

The provision duplicates the little-noticed section 1175 of the bill passed by the House of Representatives. Neither provision was in bills reported by the committees of either chamber; at the last minute, both were slipped into the versions sent to the floor for action.

The fundamental question is whether seniors will be prevented from using their own money, if they wish, to gain access to insurance that will not ration medical treatment. The significant cuts that the Senate and House health care bills make in Medicare increase the importance of protecting the right of older Americans, if they choose, to use their own money to save their own lives. It is critical to change Section 3209 of the Reid bill to keep this alternative available.

PLEASE CONTACT YOUR SENATORS TODAY !!

To phone your Senators (the approach most likely to be effective) or write them, you can get contact information.

Send an email to your Senators.

Additional information on this issue, and on other provisions in the Senate bill that threaten to ration lifesaving medical treatment.

SENATE AMENDMENT WITH MORE EXTREME RATIONING COMING?

The Reid Substitute now being debated and amended on the Senate floor contains significant provisions that, unless corrected, will lead to rationing of lifesaving medical care. However, it may be that a still greater danger of rationing looms.

According to both the Washington Post and InsideHealthPolicy.com (a subscription-only service) this morning (December 2, 2009), a group of "centrist" Democratic Senators are fashioning new provisions "to strengthen the bill’s existing cost-containment measures," and are doing so in private consultation with committee and Senate leaders.

Among the most dangerous possibilities reportedly under discussion is a proposal to extend the authority of the Medicare Commission, which in the Reid Substitute has the duty to cut Medicare growth below the rate of medical inflation, to cover nongovernmental health insurance as well. If a government commission is given authority to limit what private insurance plans are able to charge and the treatment they are allowed to provide, this would track proposals to create a "Federal Health Board" first put forth by former Senate Majority Leader Tom Daschle, whose original nomination to be Obama’s Secretary of Health and Human Services was withdrawn because of concerns over back taxes and financial conflicts of interest. It has been reported that despite his lack of a formal position, Daschle has been heavily involved in strategizing with White House and Senate leadership about how to guide the Senate bill to the finish line. An analogue to such a board exists as the National Institute for Clinical Excellence (N.I.C.E.) in Great Britain.

Opponents of rationing are put into a bind by the reports. On the one hand, until an actual "cost-containment" proposal is made public, it is impossible to determine whether it will compel rationing and, if so, mobilize to oppose it. On the other hand, by the time it is made public, it may already have the support of the majority caucus negotiated behind the scenes, making it very difficult to stop.

Check back often . . . .

SENATE DEBATE BEGINS DEBATE ON REID RESTRUCTURING BILL

Yesterday afternoon, the Senate began debating Major Leader Harry Reid’s Health Care restructuring bill known formally as the “Patient Protection and Affordable Care Act." Two amendments were raised for debate, but not voted on.

The first, offered by Sen. Barbara Mikulski (D-Md), seeks to reinsert a "Women's Preventive Care" provision that was dropped when Senate leadership merged the health and Finance committees' health bills. The other amendment, offered by Sen. John McCain (R-Az.), was a motion to recommit the bill to the Senate Finance Committee in order to remove the massive Medicare cuts that are made in the bill in order to fund the restructuring effort.

Sen. McCain, in defense of his amendment made the following statement:

“Slashing Medicare by nearly $500 billion, one-half a trillion dollars, to create a new Federal health care entitlement is not health care reform. These reductions include $120 billion to the Medicare Advantage program, $150 billion to providers including hospitals, hospice, and nursing homes, and $23 billion in unspecified decreases to be determined by an ‘Independent Medicare Advisory board.’ Simply put, these Medicare cuts will impact seniors' access to quality care. This is a price that Americans should not be asked to pay.

Votes on amendments are expected this afternoon as debate continues.

DEBATE ON REID BILL TO BEGIN AFTER THANKSGIVING

The Reid Senate health restructuring bill cleared its first hurdle Saturday with a 60-39 cloture vote to begin debate. The party-line vote (Sen. Voinovich, R-Ohio did not vote) allows the full Senate to begin debating the bill. The bill, with its numerous rationing concerns, will be debated after this week's Thanksgiving recess. Please see earlier posts - one by one, for analysis of the numerous rationing concerns.

Price Controls (Medicare)
Price Controls
Shared Decision Making (Advance Care Planning)
The Medicare Commission
Assisted Suicide Funding?

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Price Controls (Medicare)

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

Price Controls (Medicare)

The Reid bill includes the House provision that would effectively allow the Centers for Medicaid and Medicare Services (CMS) to bar senior citizens from adding their own money, if they choose, to the government contribution to get private-fee-for-service Medicare Advantage (MA) plans less likely to ration life-saving treatment.

Medicare—the government program that provides health insurance to older people in the United States—faces grave fiscal problems as the baby boom generation ages. Medicare is financed by payroll taxes, which means that those now working are paying for the health care of those now retired. As the baby boom generation moves from middle into old age, the proportion of the retired population will increase, while the proportion of the working population will decrease. The consequence is that the amount of money available for each Medicare beneficiary, when adjusted for health care inflation, will shrink.

Three alternatives exist.

In theory, taxes could be increased dramatically to make up the shortfall – an unlikely and politically difficult proposition. The second alternative—to put it bluntly but accurately—is rationing. Less money available per senior citizen would mean less treatment, including less of the treatments necessary to prevent death. For want of treatment, many people whose lives could have been saved by medical treatment will perish against their will. The third alternative is that, as the government contribution decreases, the shortfall could be made up by payments from older people themselves, so that their Medicare health insurance premium could voluntarily be financed partly by the government and partly from their own income and savings.
What most people do not realize is that, as a result of legislative changes in 1997 and 2003, supported by the National Right to Life Committee, this third alternative is now law. Under the title of “private fee-for-service plans,” there is an option in Medicare under which senior citizens can choose health insurance whose value is not limited by what the government may pay toward it. These plans can set premiums and reimbursement rates for providers without upward limits set by government regulation.

This means that such plans will not be forced to ration treatment, as long as senior citizens choose to pay more for them. This option means that Medicare can operate in such a way that whatever the government provides serves as the floor, not the ceiling, for what health care senior citizens can get. As government contributions sink, private fee-for-service plans can provide a way to escape rationing. For more on the background of this program see here.

Medicare covers everyone of retirement age, regardless of income or assets. Yet, because of budget constraints, the Medicare reimbursement rates for health care providers tend to be below the cost of giving the care—a deficit that can only accelerate as cost pressures on Medicare increase with the retirement of the baby boomers. This means that providers engage in “cost shifting” by using funds they receive in payment for treating insured working people to help make up for what the providers lose when treating retirees under Medicare. Thus, comparatively low-income workers often effectively subsidize higher-income retirees.

However, when middle-income retirees are free voluntarily to add their own money on top of the government contribution, through a private fee-for-service plan, they stop being the beneficiaries of cost-shifting and become contributors to it.

This program faces elimination in the Reid bill. Section 3209 indirectly amends the section in existing law allowing private fee-for-service plans to set their premiums without approval by CMS to say, “Nothing in this section shall be construed as requiring the Secretary to accept any or every bid submitted by an MA organization under this subsection.” [1] This allows CMS to refuse to allow private-fee-for-service plans that charge what CMS regards as premiums that are too high – or, literally, allows CMS to refuse to allow private-fee-for-service plans (or any other MA plans) altogether, for any reason or no reason.

With this dangerous provision in the Reid bill will eliminate the only way that seniors have to escape rationing - taking away their right to spend their own money to save their own lives.

[1] At page 920

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Price Controls

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

Price Controls

In the Reid bill, a new provision –Section 1003 -- will allow the government to impose price controls.[1] With minor modifications, Section 1003, adopts the House bill provision allowing an exchange to exclude “particular health insurance issuers ... based on a pattern or practice of excessive or unjustified premium increases.” The provision, like in the House bill, will allow an exchange to exclude “particular health insurance issuers ... based on a pattern or practice of excessive or unjustified premium increases”[2]

The ability of Americans to choose to use their own money to obtain insurance policies less likely to ration in the exchanges would be destroyed. Originally, state-based "exchanges" were designed to allow comparison shopping among all insurance plans that provided the basic benefits. Now, however, the exchanges will limit the value of the insurance policies that Americans using the exchanges may purchase.

Not only will the exchanges be allowed to exclude policies when government authorities do not agree with the premiums, but they will be able to look at any increases plans charge, outside the exchange – and remove those insurers from the exchange. This would effectively allow the imposition of price controls, even outside of the exchange, limiting consumers’ access to adequate and unrationed health care. People would be limited in their ability to use their own money to save their own lives.

When the government limits by law what can be charged for health insurance, it limits what people are allowed to pay for medical treatment. While everyone would prefer to pay less – or nothing – for health care (as for anything else), government price controls in fact prevent access to lifesaving medical treatment that costs more to supply than the price set by the government.

Under a scheme of premium price controls, health insurance companies will ration lifesaving medical treatment as they are squeezed more and more tightly each year by the declining “real” (that is, adjusted for health care inflation ) value of the premiums they take in. These day-to-day rationing decisions will have the most direct and visible impact on the lives – and deaths – of people with a poor “quality of life.”

[1] Section 1003 creates a new Section 2794 of the Public Health Service Act (pp. 37-40)
[2] Ironically, Section 1311(e)(B)(ii) (p.143) retains the provision, added in the HELP committee, barring an exchange from excluding health plans “through the imposition of premium price controls.” Presumably the two provisions would be construed together to prevent the imposition of specific, explicit premium price control while allowing exclusion of insurers whose premiums the exchange deems to have a “pattern or practice” of being too high.

In addition, Section 1001, creating Section 2718(b) of the Public Health Service Act (pp. 31-32), mandates that group plans spend no more than 20%, and individual plans no more than 25% of their premium revenue on non-claims costs, limiting what can be used for administration, marketing, and profit. (The individual plan percentage may be increased in a state if the HHS Secretary determines that it would “destabilize” the individual market there.)

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Shared Decisionmaking

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

“Shared Decisionmaking” – Advance Care Planning By Another Name?

The Reid bill does not include provisions paralleling those in the House bill designed to create incentives for “advance care planning.”[1] But, Section 936 [2] provides funding to develop “patient decision aids” that are supposed to help “patients, caregivers or authorized representatives . . . to decide with their health care provider what treatments are best for them based on their treatment options, scientific evidence, circumstances, beliefs, and preferences.”

Under the Reid bill, the Department of Health and Human Services would contract with an “entity” that is to “develop and identify consensus-based standards to evaluate patient decision aids for preference sensitive care . . . and develop a certification process” for these “patient decision aids.” [3] Additional grants and contracts would be awarded to develop such “patient decision aids” which are to include “relative cost of treatment or, where appropriate, palliative care options” and to “educate providers on the use of such materials, including through academic curricula.”[4] Money would be awarded to establish “Shared Decisionmaking Resource Centers . . . to provide technical assistance to providers and to develop and disseminate best practices . . .”[5]

Furthermore, there is also language in this section about ensuring the materials are “balanced” to help patients and their representatives “understand and communicate their beliefs and preferences related to their treatment options.”[6]

The concern, however, is the same as that with the promotion of advance care planning. Given the stong views many in the medical community have about poor quality of life and the considerable emphasis on saving costs, these measures will in fact subtly or otherwise “nudge” in the direction of rejecting costly life-saving treatment.

[1] Note: The Reid bill provides for encouraging minors in foster care to prepare advance directives- in the same manner as the house bill.
[2] Sec. 936(b)(1), p. 1106
[3] At p. 1108
[4] At p. 1110
[5] At p. 1110
[6] At p. 1109

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Medicare Commission

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

The Medicare Commission

The Reid bill provides for an “Independent Medicare Advisory Board,” given the task of ensuring senior's Medicare meets budget goals (that will tighten each year).

For fiscal years 2015 through 2019, the bill sets a target rate of growth for Medicare midway between medical inflation and average inflation; for subsequent years the target is the growth in Gross Domestic Product per capita plus 1%.[1]

To the extent the Center for Medicare and Medicaid Services project that Medicare growth rates would exceed these targets, the Board would have to act to reduce the gap by specified percentages varying by year. This gap-reducing would likely come at the expense of reduction of Medicare Advantage benefits, and reductions in payments to doctors and so forth.

The Congressional Budget Office notes, “The provision would place a number of limitations on the actions available to the board, including a prohibition against modifying eligibility or benefits, so its recommendations probably would focus on [r]eductions in subsidies for non-Medicare benefits offered by Medicare Advantage plans; and [c]hanges to payment rates or methodologies for services furnished in the fee-for-service sector by providers other than hospitals [but hospitals would be included beginning in 2020], physicians, hospices [but hospices would be included beginning in 2020], and suppliers of durable medical equipment that is offered through competitive bidding.[2]

The recommendations of the Board would automatically go into effect unless Congress, through an expedited procedure, adopted another means resulting in the same reductions; to waive this would require a 3/5 vote. It would also require a 3/5 vote to repeal or amend the provisions of the Reid bill establishing the Board and its duties and authority; in 2017 there would be an expedited procedure essentially guaranteeing a vote on a proposal to repeal the Board, but this vote would require 3/5 of each House to pass.

[1] Section 3403, beginning on page 1000.
[2] Letter from Douglas Elmendorf, Director, Congressional Budget Office to Senate Majority Leader Harry Reid (November 18, 2009), p. 11.

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Assisted Suicide?

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

Assisted Suicide?


On assisted suicide, the language agreed to unanimously by the Senate Finance Committee that specifically said that federal dollars “shall not pay for or reimburse” any health entity for assisted suicide does NOT appear in the Reid bill. The Reid bill only retains the provision preventing discrimination against those who refuse to participate in assisting suicide.[1]


Why was the prohibition on funding assisted suicide stripped? The argument may be it is “unnecessary” because the Assisted Suicide Funding Restriction Act of 1997 (ASFRA) bars such funding by any “funds appropriated by Congress for the purpose of paying (directly or indirectly) for the provision of health care services ,”[42 U.S.C. Sec. 14402(a)] and it states, “The provisions of this Act supersede other Federal laws (including laws enacted after the date of the enactment of this Act [enacted April 30, 1997]) except to the extent such laws specifically supersede the provisions of this Act.” [2]


However, the provision was adopted unanimously in the Finance committee, emphatically affirming federal policy of no funding for assisted suicide, and removes any danger that some administrator or court might say the broad benefit mandates in the health care bill repealed the ASFRA limits by implication. What possible purpose was served by stripping it out?



[1]Section 1553, p. 364.

[2] 42 U.S.C. Sec. 14408.

FIRST VOTE SATURDAY, NO RECONCILIATION

From this afternoon's Politico article:

Senate Majority Leader Harry Reid said the first key test vote on his health care bill will be taken Saturday, but he declined to say whether he has 60 senators lined up. "We will find out when the votes are taken," he told reporters at a midday event. Reid also said he would not use a procedural maneuver known as reconciliation to pass the bill - a shift from previous statements when he would say all options are on the table. "I 'm not using reconciliation," he said flatly.

Please check back this afternoon for analyses of the rationing concerns present in the Reid bill.

FIRST VOTE ON SENATE BILL EXPECTED SATURDAY

According to the Congressional Budget Office's preliminary analysis, the overall cost of the bill is $849 billion. Senate Democrats are currently in a caucus meeting, being briefed on the bill by leadership aides. The bill will be released to the caucus tonight, and made available publicly tomorrow at noon. Majority Leader Harry Reid will likely file for cloture tomorrow on a motion to proceed, which would almost certainly mean a vote on Saturday.

SENATE BILL EXPECTED SHORTLY

Late word is that the Congressional Budget Office score for the Reid Substitute Senate health care restructuring bill is not yet available, contrary to expectations earlier today that the Senate Majority Leader would reveal its numbers at a luncheon for Democratic members of the Senate today. It may become available Wednesday. The Talking Points Memo D.C. blog reports that "Once the numbers are in and the bill has distributed to Democrats, Reid will likely hold one or two more meetings with the [Democratic] caucus, to answer any questions, and allay any concerns, before holding the first procedural vote--on the motion to proceed to debate--later this week, or possibly this weekend."

A 4pm post by the inside-the-Beltway publication The Hill noted, "A handful of centrist Democrats, including Sens. Ben Nelson (Neb.), Blanche Lincoln (Ark.) and Mary Landrieu (La.), have not committed to support the first test vote on the bill, which would enable the Senate to begin debating and amending the bill."

The Hill quoted Senate Finance Committee Chairman Max Baucus (D-MT) as saying, "I’m talking to [centrists], I’m talking to the liberals. In the past, they’ve not been talking to each other much at all. They’re going to have to start talking to each other to get an agreement. But I’m talking to both. I have today and I will continue doing so."

[Post from earlier today follows:]
It is being widely reported that a CBO score of the highly anticipated Senate bill will be released today. The actual bill, written by Sen. Reid (D-Nev.) and leadership behind closed doors, will likely be made available publically tomorrow. A procedural vote that would start the Senate's consideration could come as soon as Friday, if a motion were filed tomorrow. Reid has said that once he gets the score, he will then unveil the bill to give Senators time to review the bill prior to the first test vote. This vote, which cannot occur until Friday if a bill is filed tomorrow, will require 60 votes. If that happens, debate would then start when members return after Thanksgiving week. Please check back frequently, as analyses of the bill will be posted here as quickly as possible once the bill is made available.

A CLOSER LOOK - MEDICARE COMMISSION AND RATIONING

In the newly passed House Health Bill (and certainly in the yet-to-be released Senate bill), the bulk of financing Health Reform comes at the expense of the Medicare program for America’s seniors. Specifically, the House intends to glean $571 billion from the Medicare program.

The Health Care legislation intends to accomplish this gleaning of Medicare in an assortment of ways: through cuts to benefits in the Medicare Advantage program, by reducing payments to providers, and notably, by having a Commission make payment decisions. Over the weekend, the Centers for Medicare and Medicaid Services issued a report casting a long shadow of skepticism over the claim that such savings are truly possible.

The report writes, “It is important to note that the estimated savings shown in this memorandum for…Medicare proposals may be unrealistic….While such payment update reductions would provide strong incentive for institutional providers to maximize efficiency, it is doubtful that many could improve their own productivity…Thus, providers for whom Medicare constitutes a substantive portion of their business…might end their participation in the program (possibly jeopardizing access to care for beneficiaries)."

A piece titled “The Rationing Commission” from this weekend’s Wall Street Journal speaking to the commission charged with making these cuts writes,

“As usual, the most dangerous parts of ObamaCare aren't receiving the scrutiny they deserve—and one of the least examined is a new commission to tell Congress how to control health spending….quietly attempting to impose a "global budget" on Medicare, with radical implications for U.S. medicine.

Like most of Europe, the various health bills stipulate that Congress will arbitrarily decide how much to spend on health care for seniors every year—and then invest an unelected board with extraordinary powers to dictate what is covered and how it will be paid for. White House budget director Peter Orszag calls this Medicare commission "critical to our fiscal future" and "one of the most potent reforms."

On that last score, he's right. Prominent health economist Alain Enthoven has likened a global budget to "bombing from 35,000 feet, where you don't see the faces of the people you kill."

The Senate version will (if the Senate Finance bill serves as the basis) have a 15 member commission appointed by the President. The commission would have to meet certain budget targets each year while limiting spending dramatically until 2019, when it would only be permitted to grow at the same rate as Gross Domestic Product, plus one percentage point.

Not too encouragingly, the just-released CMS report also writes, “Except in the case of physician services, we are not aware of any empirical evidence demonstrating the medical community's ability to achieve productivity improvements equal to those of the overall economy.”

Under the Senate Finance version, in order for Congress to overturn the Commission’s dictates would require a 2/3 vote. Consequently, the Commission, without a vote by the people’s representatives in Congress, could, for example, significantly curtail the Private-Fee-for-Service alternative in Medicare Advantage. Under current law, the private fee-for-service alternative is the only one that permits senior citizens, without being subject to limits that could be imposed by the Center for Medicare and Medicaid Services, to add their own money on top of the government contribution in order to get health insurance that is less likely to limit access to medical treatment through managed care techniques or other means. With the significant cuts in Medicare funding that this legislation imposes in order to finance extending subsidies to cover the uninsured, it is particularly important to preserve this option for older Americans to allow them to protect their own life and health with their own money.

We have seen this kind of cost rationing over again, not only from the National Institute for Health and Clinical Excellence, which rations care in England, but also in the U.S. in Washington State’s six year old cost-controlling board.

Again, from Sunday’s Wall Street Journal article “The Rationing Commission”:

“The Washington commission, called the Health Technology Assessment, is manned by 11 bureaucrats, including a chiropractor and a "naturopath" who focuses on alternative, er, remedies like herbs and massage therapy. They consider the clinical effectiveness but above all the cost of medical procedures and technologies. If they decide something isn't worth the money, then Olympia won't cover it for some 750,000 Medicaid patients, public employees and prisoners.

So far, the commission has banned knee arthroscopy for osteoarthritis, discography for chronic back pain, and implantable infusion pumps for pain not related to cancer. This year, it is targeting such frivolous luxuries as knee replacements, spinal cord stimulation, a specialized autism therapy and MRIs of the abdomen, pelvis or breasts for cancer. It will also rule on routine ultrasounds for pregnancy, which have a "high" efficacy but also a "high" cost.

Currently, the commission is pushing through the most restrictive payment policy in the nation for drug-eluting cardiac stents—simply because bare metal stents are cheaper, even as they result in worse outcomes. If a patient is wheeled into the operating room with chest pains in an emergency, doctors will first have to determine if he's covered by a state plan, then the diameter of his blood vessels and his diabetic condition to decide on the appropriate stent. If they don't, Washington will not reimburse them for "inappropriate care."”

With the threat of rationing contained in the structure of the Medicare Commission, coupled with the unrealistic savings that CMS says the House Health Reform bill is attempting to squeeze, those on Medicare will be at real risk under this sort of dangerous short-sighted financing scheme.

REVEALING NEW REPORT EXPOSES DANGERS OF MEDICARE RATIONING

An article from today’s Washington Post, titled “Report: Bill would reduce senior care” details a new report which warns that Medicare cuts approved by House Health Restructuring bill are not only insufficient to provide needed funding for reform, but also may affect access to health care providers. The full Washington Post article is available here. The CMS report is available here.

The article (in part) explains, “A plan to slash more than $500 billion from future Medicare spending -- one of the biggest sources of funding for President Obama's proposed overhaul of the nation's health-care system -- would sharply reduce benefits for some senior citizens and could jeopardize access to care for millions of others, according to a government evaluation released Saturday.

The report, requested by House Republicans, found that Medicare cuts contained in the health package approved by the House on Nov. 7 are likely to prove so costly to hospitals and nursing homes that they could stop taking Medicare altogether. Congress could intervene to avoid such an outcome, but "so doing would likely result in significantly smaller actual savings" than is currently projected, according to the analysis by the chief actuary for the agency that administers Medicare and Medicaid. That would wipe out a big chunk of the financing for the health-care reform package, which is projected to cost $1.05 trillion over the next decade....

The report offers the clearest and most authoritative assessment to date of the effect that Democratic health reform proposals would have on Medicare and Medicaid, the nation's largest public health programs. It analyzes the House bill, but the Senate is also expected to rely on hundreds of billions of dollars in Medicare cuts to finance the package that Majority Leader Harry M. Reid (D-Nev.) hopes to take to the floor this week.”

------
This report makes clear what many predict - that the insufficient funding of the proposals under consideration will lead to rationing. A substantial part of health care subsidies, under any current proposal, would be paid for by “robbing Peter to pay Paul” – reducing Medicare funding for older people in order to cover the uninsured. Over-promising while under-funding health insurance for the uninsured will almost surely lead to rationing.

RIGHT OF SENIORS TO ADD OWN MONEY TO SAVE OWN LIVES IN DANGER

NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. One of these concerns relates to the ability of seniors to spend their own moeny to save their own lives.


– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurancepremiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

ALL EYES ON THE SENATE

With few legislative work weeks remaining this year, Senate Democrats are up against the clock if they hope to finish health care restructuring this year. Majority Leader Harry Reid (D-Nev.) has indicated that debate will likely begin next week. If this happens, this means that debate would be interrupted by the Thanksgiving week-long recess (it is widely expected that debate will last at least two weeks). Reid hopes to get a Congressional Budget Office (CBO) score on the submitted bill by the end of this week - after responding to a series of questions from CBO raised late Monday.

HOUSE BILL SQUEAKS BY, MAJOR RATIONING CONCERNS REMAIN

The following is excerpted from a letter (full letter available here) sent Saturday night to members of the House prior to passage of the House Health Restructuring Bill by 220 to 215 -- in a chamber where Democrats hold 258 seats:

....However, as we have advised in previous communications, NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. We reserve the right to score the roll call vote on the conference report, or on any Senate-passed bill, if these concerns are not adequately resolved....

Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities from euthanasia, including the involuntary denial of treatment, food, and fluids necessary to prevent death, as it has been dedicated to protecting unborn children from abortion. H.R. 3962 contains provisions that threaten these lives. (Documentation of and further details concerning the points made below are available at http://www.nrlc.org/HealthCareRationing/HouseLegislation.html.)

For both those eligible to participate in the insurance exchange and older Americans covered by Medicare, H.R. 3962 limits their right to spend their own money to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurance

premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– In addition, Section 1165 effectively ends the ability of unions and employers to offer such plans nationwide – or on anything other than a local basis. Since a given company’s or industry’s retirees are likely to be spread around the country, this greatly undermines, if it does not effectively eliminate, the ability of unions and business to offer to their retirees plans that allow them to add their own money to the government Medicare contribution in order to reduce the prospect of being denied needed treatment.

Provisions in H.R. 3962 could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or “quality of life.”

– Section 2401 creates a “Center for Quality Improvement” which is to promote “best practices” in health care by doing four things: 1) identify existing best practices, 2) develop new ones, 3) evaluate both, and 4) implement them. It contains a provision that states that the Center “shall not develop quality-adjusted life year measures or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.” (Emphasis added.) As far as this goes, it provides a critically important protection against the widespread emphasis in the comparative effectiveness scholarly literature on the use of discriminatory criteria in standards of medical practice, an approach unapologetically employed in Great Britain by that nation’s National Institute for Health and Clinical Excellence (NICE). Unfortunately, this protection applies only to one of the Center’s four missions – the development of “best practices.” It leaves a gaping loophole with regard to the Center’s identification, evaluation, and implementation of existing “best practices.”

– Anything like this anti-discriminatory protective language is missing entirely from Section 1401, which creates a Center for Comparative Effectiveness Research, and from Section 1159's provisions commissioning the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care” which will be implemented automatically unless vetoed by Congress.

Advance care planning provisions could be used to “nudge” patients toward accepting denial of treatment as a means of cost control, and despite apparent prohibitions, could include assisted suicide.

– Section 240 requires health insurers participating in the exchange to provide beneficiaries with the option to establish advance directives and disseminate information about “end-of-life” planning, while Section 1233 reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee recognizes the legal right to execute advance directives and promotes its own version, the “Will to Live,” the author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

For those of us who believe that the absence of universal health care is America’s burning shame, the spectacle of opposition to Obama’s health-care plan is Alice-in-Wonderland bewildering and also enraging but on one point the plan’s critics are absolutely correct. One of the key ideas under end-of-life care is morally revolting.

[Section 1233] . . . offers to pay once every five years for a voluntary, not mandatory, consultation with a doctor, who will not blatantly tell the patient how to end his or her life sooner, but will explain to the patient the set of options available at the end of life, including living wills, palliative care and hospice, life sustaining treatment, and all aspects of advance care planning, including, presumably, the decision to end one’s life.

The shading in of human particulars is what makes this so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling.

What gives weight to Siegel’s concerns is the focus by advocates on the money such “nudging” is expected to save. For example, Holly Prigerson of Boston’s Dana Farber Cancer Institute has been quoted as saying, “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…..”

Moreover, these provisions could lead to federal facilitation of direct killing. While both sections state that they do not authorize “promotion” of “suicide” or “assisted suicide,” providing information about its availability in states where it is legal could well be described as not “promoting” it, only making patients aware of legal options. Section 240 states that it does not require health insurers participating in the exchange to inform beneficiaries about advance directives that include assisted suicide in states where it is legal. However, Section 1233 contains no express limitation on including advance directives that direct assisted suicide as part of the federally funded “advance care planning consultations” with Medicare patients.

What is more, a section in the statutes of both Oregon and Washington State pertaining to what most people recognize as the legalization of assisted suicide explicitly provides that what these state laws authorize “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” In light of this, it is troubling that the final drafters of Sections 240 and 1233 rejected the inclusion of a federal definition of “suicide” and “assisted suicide” based the existing federal Assisted Suicide Funding Restriction Act, opening the possibility that provision of information about the option of obtaining lethal prescriptions in these states would be construed not to constitute the excluded provision of information about “suicide” or “assisted suicide.”

Thank you for your consideration of NRLC’s objections to these provisions of H.R. 3962.However, as we have advised in previous communications, NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. We reserve the right to score the roll call vote on the conference report, or on any Senate-passed bill, if these concerns are not adequately resolved. Moreover, NRLC would certainly score the roll call on any conference report that did not contain the Stupak-Pitts language.

Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities from euthanasia, including the involuntary denial of treatment, food, and fluids necessary to prevent death, as it has been dedicated to protecting unborn children from abortion. H.R. 3962 contains provisions that threaten these lives. (Documentation of and further details concerning the points made below are available at http://www.nrlc.org/HealthCareRationing/HouseLegislation.html.)

For both those eligible to participate in the insurance exchange and older Americans covered by Medicare, H.R. 3962 limits their right to spend their own money to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurance

premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– In addition, Section 1165 effectively ends the ability of unions and employers to offer such plans nationwide – or on anything other than a local basis. Since a given company’s or industry’s retirees are likely to be spread around the country, this greatly undermines, if it does not effectively eliminate, the ability of unions and business to offer to their retirees plans that allow them to add their own money to the government Medicare contribution in order to reduce the prospect of being denied needed treatment.

Provisions in H.R. 3962 could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or “quality of life.”

– Section 2401 creates a “Center for Quality Improvement” which is to promote “best practices” in health care by doing four things: 1) identify existing best practices, 2) develop new ones, 3) evaluate both, and 4) implement them. It contains a provision that states that the Center “shall not develop quality-adjusted life year measures or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.” (Emphasis added.) As far as this goes, it provides a critically important protection against the widespread emphasis in the comparative effectiveness scholarly literature on the use of discriminatory criteria in standards of medical practice, an approach unapologetically employed in Great Britain by that nation’s National Institute for Health and Clinical Excellence (NICE). Unfortunately, this protection applies only to one of the Center’s four missions – the development of “best practices.” It leaves a gaping loophole with regard to the Center’s identification, evaluation, and implementation of existing “best practices.”

– Anything like this anti-discriminatory protective language is missing entirely from Section 1401, which creates a Center for Comparative Effectiveness Research, and from Section 1159's provisions commissioning the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care” which will be implemented automatically unless vetoed by Congress.

Advance care planning provisions could be used to “nudge” patients toward accepting denial of treatment as a means of cost control, and despite apparent prohibitions, could include assisted suicide.

– Section 240 requires health insurers participating in the exchange to provide beneficiaries with the option to establish advance directives and disseminate information about “end-of-life” planning, while Section 1233 reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee recognizes the legal right to execute advance directives and promotes its own version, the “Will to Live,” the author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

For those of us who believe that the absence of universal health care is America’s burning shame, the spectacle of opposition to Obama’s health-care plan is Alice-in-Wonderland bewildering and also enraging but on one point the plan’s critics are absolutely correct. One of the key ideas under end-of-life care is morally revolting.

[Section 1233] . . . offers to pay once every five years for a voluntary, not mandatory, consultation with a doctor, who will not blatantly tell the patient how to end his or her life sooner, but will explain to the patient the set of options available at the end of life, including living wills, palliative care and hospice, life sustaining treatment, and all aspects of advance care planning, including, presumably, the decision to end one’s life.

The shading in of human particulars is what makes this so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling.

What gives weight to Siegel’s concerns is the focus by advocates on the money such “nudging” is expected to save. For example, Holly Prigerson of Boston’s Dana Farber Cancer Institute has been quoted as saying, “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…..”

Moreover, these provisions could lead to federal facilitation of direct killing. While both sections state that they do not authorize “promotion” of “suicide” or “assisted suicide,” providing information about its availability in states where it is legal could well be described as not “promoting” it, only making patients aware of legal options. Section 240 states that it does not require health insurers participating in the exchange to inform beneficiaries about advance directives that include assisted suicide in states where it is legal. However, Section 1233 contains no express limitation on including advance directives that direct assisted suicide as part of the federally funded “advance care planning consultations” with Medicare patients.

What is more, a section in the statutes of both Oregon and Washington State pertaining to what most people recognize as the legalization of assisted suicide explicitly provides that what these state laws authorize “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” In light of this, it is troubling that the final drafters of Sections 240 and 1233 rejected the inclusion of a federal definition of “suicide” and “assisted suicide” based the existing federal Assisted Suicide Funding Restriction Act, opening the possibility that provision of information about the option of obtaining lethal prescriptions in these states would be construed not to constitute the excluded provision of information about “suicide” or “assisted suicide.”

Thank you for your consideration of NRLC’s objections to these provisions of H.R. 3962.However, as we have advised in previous communications, NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. We reserve the right to score the roll call vote on the conference report, or on any Senate-passed bill, if these concerns are not adequately resolved. Moreover, NRLC would certainly score the roll call on any conference report that did not contain the Stupak-Pitts language.

Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities from euthanasia, including the involuntary denial of treatment, food, and fluids necessary to prevent death, as it has been dedicated to protecting unborn children from abortion. H.R. 3962 contains provisions that threaten these lives. (Documentation of and further details concerning the points made below are available at http://www.nrlc.org/HealthCareRationing/HouseLegislation.html.)

For both those eligible to participate in the insurance exchange and older Americans covered by Medicare, H.R. 3962 limits their right to spend their own money to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurance

premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– In addition, Section 1165 effectively ends the ability of unions and employers to offer such plans nationwide – or on anything other than a local basis. Since a given company’s or industry’s retirees are likely to be spread around the country, this greatly undermines, if it does not effectively eliminate, the ability of unions and business to offer to their retirees plans that allow them to add their own money to the government Medicare contribution in order to reduce the prospect of being denied needed treatment.

Provisions in H.R. 3962 could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or “quality of life.”

– Section 2401 creates a “Center for Quality Improvement” which is to promote “best practices” in health care by doing four things: 1) identify existing best practices, 2) develop new ones, 3) evaluate both, and 4) implement them. It contains a provision that states that the Center “shall not develop quality-adjusted life year measures or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.” (Emphasis added.) As far as this goes, it provides a critically important protection against the widespread emphasis in the comparative effectiveness scholarly literature on the use of discriminatory criteria in standards of medical practice, an approach unapologetically employed in Great Britain by that nation’s National Institute for Health and Clinical Excellence (NICE). Unfortunately, this protection applies only to one of the Center’s four missions – the development of “best practices.” It leaves a gaping loophole with regard to the Center’s identification, evaluation, and implementation of existing “best practices.”

– Anything like this anti-discriminatory protective language is missing entirely from Section 1401, which creates a Center for Comparative Effectiveness Research, and from Section 1159's provisions commissioning the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care” which will be implemented automatically unless vetoed by Congress.

Advance care planning provisions could be used to “nudge” patients toward accepting denial of treatment as a means of cost control, and despite apparent prohibitions, could include assisted suicide.

– Section 240 requires health insurers participating in the exchange to provide beneficiaries with the option to establish advance directives and disseminate information about “end-of-life” planning, while Section 1233 reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee recognizes the legal right to execute advance directives and promotes its own version, the “Will to Live,” the author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

For those of us who believe that the absence of universal health care is America’s burning shame, the spectacle of opposition to Obama’s health-care plan is Alice-in-Wonderland bewildering and also enraging but on one point the plan’s critics are absolutely correct. One of the key ideas under end-of-life care is morally revolting.

[Section 1233] . . . offers to pay once every five years for a voluntary, not mandatory, consultation with a doctor, who will not blatantly tell the patient how to end his or her life sooner, but will explain to the patient the set of options available at the end of life, including living wills, palliative care and hospice, life sustaining treatment, and all aspects of advance care planning, including, presumably, the decision to end one’s life.

The shading in of human particulars is what makes this so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling.

What gives weight to Siegel’s concerns is the focus by advocates on the money such “nudging” is expected to save. For example, Holly Prigerson of Boston’s Dana Farber Cancer Institute has been quoted as saying, “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…..”

Moreover, these provisions could lead to federal facilitation of direct killing. While both sections state that they do not authorize “promotion” of “suicide” or “assisted suicide,” providing information about its availability in states where it is legal could well be described as not “promoting” it, only making patients aware of legal options. Section 240 states that it does not require health insurers participating in the exchange to inform beneficiaries about advance directives that include assisted suicide in states where it is legal. However, Section 1233 contains no express limitation on including advance directives that direct assisted suicide as part of the federally funded “advance care planning consultations” with Medicare patients.

What is more, a section in the statutes of both Oregon and Washington State pertaining to what most people recognize as the legalization of assisted suicide explicitly provides that what these state laws authorize “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” In light of this, it is troubling that the final drafters of Sections 240 and 1233 rejected the inclusion of a federal definition of “suicide” and “assisted suicide” based the existing federal Assisted Suicide Funding Restriction Act, opening the possibility that provision of information about the option of obtaining lethal prescriptions in these states would be construed not to constitute the excluded provision of information about “suicide” or “assisted suicide.”

Thank you for your consideration of NRLC’s objections to these provisions of H.R. 3962.However, as we have advised in previous communications, NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. We reserve the right to score the roll call vote on the conference report, or on any Senate-passed bill, if these concerns are not adequately resolved. Moreover, NRLC would certainly score the roll call on any conference report that did not contain the Stupak-Pitts language.

Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities from euthanasia, including the involuntary denial of treatment, food, and fluids necessary to prevent death, as it has been dedicated to protecting unborn children from abortion. H.R. 3962 contains provisions that threaten these lives. (Documentation of and further details concerning the points made below are available at http://www.nrlc.org/HealthCareRationing/HouseLegislation.html.)

For both those eligible to participate in the insurance exchange and older Americans covered by Medicare, H.R. 3962 limits their right to spend their own money to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurance

premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– In addition, Section 1165 effectively ends the ability of unions and employers to offer such plans nationwide – or on anything other than a local basis. Since a given company’s or industry’s retirees are likely to be spread around the country, this greatly undermines, if it does not effectively eliminate, the ability of unions and business to offer to their retirees plans that allow them to add their own money to the government Medicare contribution in order to reduce the prospect of being denied needed treatment.

Provisions in H.R. 3962 could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or “quality of life.”

– Section 2401 creates a “Center for Quality Improvement” which is to promote “best practices” in health care by doing four things: 1) identify existing best practices, 2) develop new ones, 3) evaluate both, and 4) implement them. It contains a provision that states that the Center “shall not develop quality-adjusted life year measures or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.” (Emphasis added.) As far as this goes, it provides a critically important protection against the widespread emphasis in the comparative effectiveness scholarly literature on the use of discriminatory criteria in standards of medical practice, an approach unapologetically employed in Great Britain by that nation’s National Institute for Health and Clinical Excellence (NICE). Unfortunately, this protection applies only to one of the Center’s four missions – the development of “best practices.” It leaves a gaping loophole with regard to the Center’s identification, evaluation, and implementation of existing “best practices.”

– Anything like this anti-discriminatory protective language is missing entirely from Section 1401, which creates a Center for Comparative Effectiveness Research, and from Section 1159's provisions commissioning the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care” which will be implemented automatically unless vetoed by Congress.

Advance care planning provisions could be used to “nudge” patients toward accepting denial of treatment as a means of cost control, and despite apparent prohibitions, could include assisted suicide.

– Section 240 requires health insurers participating in the exchange to provide beneficiaries with the option to establish advance directives and disseminate information about “end-of-life” planning, while Section 1233 reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee recognizes the legal right to execute advance directives and promotes its own version, the “Will to Live,” the author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

For those of us who believe that the absence of universal health care is America’s burning shame, the spectacle of opposition to Obama’s health-care plan is Alice-in-Wonderland bewildering and also enraging but on one point the plan’s critics are absolutely correct. One of the key ideas under end-of-life care is morally revolting.

[Section 1233] . . . offers to pay once every five years for a voluntary, not mandatory, consultation with a doctor, who will not blatantly tell the patient how to end his or her life sooner, but will explain to the patient the set of options available at the end of life, including living wills, palliative care and hospice, life sustaining treatment, and all aspects of advance care planning, including, presumably, the decision to end one’s life.

The shading in of human particulars is what makes this so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling.

What gives weight to Siegel’s concerns is the focus by advocates on the money such “nudging” is expected to save. For example, Holly Prigerson of Boston’s Dana Farber Cancer Institute has been quoted as saying, “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…..”

Moreover, these provisions could lead to federal facilitation of direct killing. While both sections state that they do not authorize “promotion” of “suicide” or “assisted suicide,” providing information about its availability in states where it is legal could well be described as not “promoting” it, only making patients aware of legal options. Section 240 states that it does not require health insurers participating in the exchange to inform beneficiaries about advance directives that include assisted suicide in states where it is legal. However, Section 1233 contains no express limitation on including advance directives that direct assisted suicide as part of the federally funded “advance care planning consultations” with Medicare patients.

What is more, a section in the statutes of both Oregon and Washington State pertaining to what most people recognize as the legalization of assisted suicide explicitly provides that what these state laws authorize “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” In light of this, it is troubling that the final drafters of Sections 240 and 1233 rejected the inclusion of a federal definition of “suicide” and “assisted suicide” based the existing federal Assisted Suicide Funding Restriction Act, opening the possibility that provision of information about the option of obtaining lethal prescriptions in these states would be construed not to constitute the excluded provision of information about “suicide” or “assisted suicide.”

Thank you for your consideration of NRLC’s objections to these provisions of H.R. 3962.