HOUSE HEALTH BILL CONTAINS DANGEROUS RATIONING PROVISIONS

This morning, House Speaker Nancy Pelosi (D-Ca.) unveiled the House Health Care Restructuring bill. H.R. 3962 contains many dangerous mechanisms, when coupled with inadequate funding, will inevitably lead to rationing. A manager's amendment to the bill is expected early next week, with the full bill scheduled to be brought up on the floor Friday (Nov. 6). House Leadership has promised that both the bill and the manager's amendment would be available for review 72 hours before a vote.

RATIONING THROUGH INADEQUATE FUNDING
H.R. 3962 contains premium subsidies to help the uninsured obtain health insurance. The problem is that a substantial part of the subsidies are paid for by “robbing Peter to pay Paul” – reducing Medicare funding for older people in order to cover the uninsured. The dangerous consequence is that in a few years, having over-promised and under-funded, the government will be faced with the choice of adding other means of revenue or, far more likely, in some way imposing rationing.

RATIONING THROUGH COMPARATIVE EFFECTIVENESS PROVISIONS
The House bill, as reported, allows comparative effectiveness research (CER) to be used in making coverage decisions, determining reimbursement rates, and in establishing incentive programs in ways that discriminatorily deny or limit health care based on age, present or predicted disability, or expected length of life.

SAVING MONEY THROUGH DANGEROUS END-OF-LIFE PROVISIONS
Section 3962, contains the newly renamed “Voluntary Advance Care Planning Consultation.” The section provides for government funded “advanced care planning” sessions. These could easily be used to subtly or not so subtly pressure patients and older people to reject treatment. Advocates of such measures frequently cite the cost savings if, as they expect, this promotion results in more directives rejecting life-saving treatment. Efforts to push patients and older people to prepare advance directives may in practice become a means of persuading or pressuring them to agree to less treatment as a means of saving money.

Further, Section 240 also requires qualified health benefit offering entities to disseminate information related to “end-of-life” planning to people seeking enrollment in the exchange.

There have been several recent studies showing how advance directives and end of life conversations generally yield cost savings. See here for more description.

RATIONING THROUGH PRICE CONTROLS
The bills give broad authority to the Exchange Commissioner to review bids and any premium increases and to use that review as the basis for the exclusion and expulsion of plans. This will effectively lead to premium price controls.

When the government limits by law what can be charged for health care, it limits what people are allowed to pay for medical treatment. Under a scheme of premium price controls, health insurance companies will ration life-saving medical treatment as they are squeezed more and more tightly each year by declining “real” (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.”

SENATE VOTE LIKELY ON FUNDING MEDICARE DOCTORS TO TALK WITH SENIOR CITIZENS ABOUT REJECTING TREATMENT

"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

During the summer there was considerable criticism of provisions in the House health care restructuring 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. 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.

During the Senate Finance Committee deliberations, however, Senator Rockefeller spoke out strongly for their inclusion, and a speech from a long-time advocate reveals that his strategy is to do so "at the llth hour," presumably meaning toward the end of Senate floor consideration of the merged bill developed for submission to the full Senate by Majority Leader Harry Reid (D-NV).

Christopher, a friend of Health and Human Services Secretary (and former Kansas Governor) Kathleen Sebelius, heads a major "bioethics" think tank that has long pushed for advance directives. Her talk left no doubt of the economic motive for promoting advance care consultations.

"The reality is that 9% to 11% of the entire health care budget is spent on end of life care – nearly 27 to 30% depending on whose data you want to believe of the Medicare budget is spent on end of life care," she said. "Conservatively, conservatively, $6.1 billion every year of Medicare is wasted on what we refer to as futile care . . . ."

REID TO SUBMIT BILL FOR COST ESTIMATE TODAY

Senate Majority Harry Reid (D-Nv.) said today at a news conference that he will be sending a complete package to the Congressional Budget Office (CBO) later today -- with some policies having multiple options. That score is predicted to take about two weeks to complete. Whether the public will have access to the legislative language before the cost is calculated is unclear. Once the bill comes back from CBO, it will take 60 votes to begin debate - which might be limited to two weeks.

While the Senate bill appears to be nearly complete - though unscored - the House has made less progress. After failing to count enough votes for the public option, Democrats met late on Friday to move toward a solution, reaching no compromise.

PAYMENTS TO MEDICARE PHYSICIANS DELAYED- DECOUPLED FROM REFORM

Today, Senate sources again confirmed that there might be a merged bill this week. Once a merged bill is revealed, the Congressional Budget Office would likely release a score very quickly. At that point, Democrats hope to keep debate to two weeks.

On a separate but related front, Senate Majority Leader Harry Reid (D-NV) has delayed action on a “multi-year” Medicare physician payment proposal (docfix), with a pledge to work on it after action on broader health reform. The pledge followed a failed vote to end debate. No Repblican voted for, and 12 Democrats opposed the measure- largely due to the failure to provide a way of paying for the exensive measure. Prior to the vote on Tuesday, a reporter asked Sen. Majority leader Reid (D-NV) whether Democrats could "still say health-care reform is paid for if you pass a quarter-trillion-dollar doc fix and don't pay for it." And when inadequate financing is present, coupled with the mechanisms* present in the Senate bill, rationing becomes a very real threat.


*The Finance committee product contains: 1. cuts to Medicare, 2. the dangerous "Death Spiral" provision, 3. a grant of nearly unlimited power to the Medicare Commission to reduce Medicare payments to fit with the limits on growth, and 4. verbal promises to consider price controls.
The HELP committee product's rationing concerns can be found here.

NO RUMORS -- REAL RATIONING

Recent and intensifying reports of systematic rationing in the United Kingdom have gone largely unreported. As Sen. Reid, along with the White House and leadership, edges closer towards a final bill, these very real rationing dangers ought to be brought out into the open.

In September, a group of experts who care for the terminally ill wrote a letter to the United Kingdom’s The Daily Telegraph, expressing deep concern over wide-spread treatment of those deemed to be dying.

The letter in part states,

“The Government is rolling out a new treatment pattern of palliative care into hospitals, nursing and residential homes. It is based on experience in a Liverpool hospice. If you tick all the right boxes in the Liverpool Care Pathway, the inevitable outcome of the consequent treatment is death. As a result, a nationwide wave of discontent is building up, as family and friends witness the denial of fluids and food to patients. Syringe drivers are being used to give continuous terminal sedation, without regard to the fact that the diagnosis could be wrong.”

The letter from the doctors came a mere week after a report by the UK Patients Association estimated that up to one million patients had received poor or cruel care on the NHS.

The Liverpool Care Pathway to which the doctors refer was initially developed by a Liverpool hospice, and was designed to reduce cancer patient suffering in their final hours (but now includes a vastly larger group). In 2004, the National Institute for Health and Clinical Excellence (Nice), recommended widespread use. Today, more than 300 hospitals, 130 hospices and 560 care homes in England currently use the system.

Author and lawyer Wesley J. Smith writes,

“The Pathway’s guidelines instruct doctors to put patients thought to be near death into a drug-induced coma, after which all food and fluids, as well as medical treatments such as antibiotics, are withdrawn until death. The problem with such a protocol is that no matter how well motivated — and undoubtedly, the Pathway’s creators had good intentions — follow-the-dots medical protocols often lead to patients’ being treated as members of a category rather than as individuals. At that point, nuance often goes out the door, and mistakes, neglect, and even oppression frequently follow.”

The personal stories filtering through are quite unbelievable.

Nine days ago, the Times of London reported on the case of Hazel Fenton, identified by doctors as terminally ill and left to starve to death – now recovered for nine months (needing only antibiotics and food/fluids) after her daughter intervened.

Seven days ago, The Daily Mail reported, “A grandfather who beat cancer was wrongly told the disease had returned and left to die at a hospice which pioneered a controversial 'death pathway.' Doctors said there was nothing more they could do for 76-year- old Jack Jones, and his family claim he was denied food, water, and medication except painkillers. He died within two weeks. But tests after his death found that his cancer had not come back and he was in fact suffering from pneumonia brought on by a chest infection."

Here is evidence of how Government promulgated rules are leading to outright denials of treatment. We have yet to see a health care restructuring proposal that will provide the kind of long-term sustainable financing needed to prevent this very thing from happening in the U.S. - a fact that ought to be a deep cause of concern.

For more on this and further accounts see articles by Wesley J. Smith here, and from Real Clear Politics here.

POSSIBLE MERGED BILL THIS WEEK

As the Senate Finance bill and Health, Education, Labor and Pensions bill continue to me merged behind closed doors, legislative language of the Senate Finance version is finally released. Several sources have said that a final bill could be expected as early as Thursday or Friday of this week.

Along with the final Senate Finance legislative language, Sen. Rockefeller (D-WV) released an accompanying statement adding, "I am extremely concerned that the Committee mark does nothing to inform consumers of their treatment options at the end of life or help them document their individual wishes for care." We can look for Sen. Rockefeller to introduce amendments once the bill moves to the Senate floor. It is nearly certain that the merged House (for more see here) will contain provisions relating to end-of-life counseling.

MEDICAL JOURNAL STUDIES HIGHLIGHT DANGER OF "ADVANCE CARE PLANNING" AND "COMPARATIVE EFFECTIVENESS" HEALTH BILL PROVISIONS

Two New England Journal of Medicine (NEJM) studies published yesterday show how medical conclusions based on the perceived quality of life of certain groups or of older people can pose risks in the areas of Advance Care Planning and “comparative effectiveness” research. Central to the Health Care Restructuring bills is the concept that cost cutting measures will be sufficient to make up for financing shortfalls. One of these measures is the promotion of advance directives. There have been several recent studies showing how advance directives and end of life conversations generally yield cost savings. For more see here.

The NEJM studies focus on two conditions in particular – Kidney Dialysis and Dementia.

One of the studies, entitled “The Clinical Course of Advanced Dementia,” concluded that, “Distressing symptoms and burdensome interventions are also common among such patients [patients with high 6-month mortality rates]. Patients with health care proxies who have an understanding of the prognosis and clinical course are likely to receive less aggressive care near the end of life.”

The study states that in the last three months of life 49.7% of those in the study underwent at least one “burdensome intervention.” Those included hospitalization, visits to the ER, parenteral therapy or tube feeding. The patients were mainly treated for pneumonia, fever, and eating problems -- complications frequently experienced by patients with advanced dementia.

As the study found, these “burdensome interventions” were less likely to be given to those who had a surrogate decisionmaker. In those cases, the study fails to highlight that the patients were not dying from the underlying dementia, but from starvation that a feeding tube could have avoided or an infection that ‘parenteral therapy’ (also known as an injection or infusion – probably of an antibiotic) could have treated. The phrase “burdensome interventions” is a conclusion based on a very subjective determination. It employs a value judgment that a person with dementia lacks value or an adequate quality of life. An antibiotic for a fever or a feeding tube would certainly not be considered “ burdensome” for –for example - a young mother with an injury.

The study suggests that instead of life-preserving interventions more attention should be given to treating distressing symptoms such as dyspnea (a breathing problem characterized by unpleasant or uncomfortable respiratory sensations), pain, pressure ulcers, aspiration, and agitation. The study implies that more emphasis ought to be on keeping those near death comfortable – an admirable goal – but not one that ought to be coupled with neglect of treatable conditions like fevers and dehydration.

This sort of study, and others like it that are becoming more prevalent, will pave the way for two different dangerous roads. The first is in the area of advance planning.

The study shows that patients with proxy decisionmakers tend to die from non-treatment (and save money). When a person being counseled to make advance decisions about accepting or rejecting treatments (for oneself or for a person for whom he or she holds a health care power of attorney) is encouraged to think of these sort of life-preserving treatments as“burdensome” for those with dementia, then the counseled individual will no doubt be more likely to authorize denial of treatment that will cause death– perhaps unknowingly – from fairly commonplace non-treatment.

The other dangerous road is that of comparative effectiveness research. Without proper protections, studies such as this one could be cited as comparative effectiveness research and be used to make coverage decisions in ways that treat the life of a person with dementia as having less value This could result in outright denial of medical coverage for many treatments that are simple and necessary to preserve the lives of patients with dementia.

The other study, entitled, “Functional Status of Elderly Adults before and After Initiation of Dialysis,” looked at nursing home patients who received dialysis. It did not include a comparison group of patients who did not receive dialysis, so a true comparison rate of extra life gained by dialysis is unknown. The study shows that despite dialysis, there was “substantial and sustained decline in functional status.” The danger is that such studies may be used to deny coverage (or encourage patients subjected to “advance care planning” to reject) dialysis because it does not “restore health or functional status” despite the fact that it likely prevents a hastened death.

TIMETABLE TIGHTENING

With all five committees who have jurisdiction over healthcare having completed work, the task is now for the House and the Senate to each create a merged bill. Senate Majority Leader Harry Reid (D-Nv.) has stated that the Senate bill could be on the floor on October 26. House Majority Leader Steny Hoyer (D-Md.) expects his bill shortly after, saying, “I think it would be very doubtful that we would get a vote prior to the first week of November.”

What ends up in the respective bills is unclear as these negotiations take place behind closed-doors. However, there have been indications that House leaders are warming up to the idea of taxing high-cost insurance plans- the one source of funding that would keep pace with the rising resources devoted to health care . For more on this see here.

ALL COMMITTEES HAVE REPORTED BILLS WITH RATIONING CONCERNS - NEGOTIATIONS NOW MOVE BEHIND CLOSED DOORS

Health care restructuring cleared another hurdle when it was voted favorably out of the Senate Finance Committee 14-9 this afternoon. Republican Olympia Snowe (ME) along with every Democrat, voted to move the bill forward. Sen. Snowe, while maintaining that “My vote today is my vote today. It does not predict my vote tomorrow,” ultimately concluded that inaction was riskier than the “imperfect bill.” Several Republican senators continued to warn of the dangers of rationing – with Senator Roberts(KS) in particular noting that the bill contains “robust tools to ration your healthcare.” A good deal of time was spent in committee today by Democrats criticizing an industry-commissioned report by PriceWaterhouseCoopers that found health insurance premiums would increase faster under the Senate's bill than they would without it. Also, Sen. Rockefeller (D-WV) again lamented the lack of inclusion of end-of-life planning. The Senator will likely offer a related amendment on the Senate floor. For more on similar end-of-life planning provisions in the house bill see here.

The Finance committee product contains 1. cuts to Medicare, 2. the dangerous "Death Spiral" provision, 3. a grant of nearly unlimited power to the Medicare Commission to reduce Medicare payments to fit with the limits on growth, and 4. verbal promises to consider price controls.

Negotiations will now shift into a closed-door setting. After today’s vote, Sen. Baucus (D-MT), majority leader Reid (D-NV), and Sen. Dodd (D-CT), along with and a handful of top White House officials, will meet to meld the Finance bill alternative bill that Dodd led through the HELP committee in July.

Leaders in the House have been meeting over the past months in an effort to merge three bills passed out of committees and to bring down projected costs. House Speaker Pelosi (D-CA), has said she expects a final version for consideration by the full chamber soon, although she has not provided a specific timetable. While attempting to shave their $1.2 trillion plan down to $900 billion, the final bill is likely to reduce subsidies, place more people into state Medicaid programs, and employ several of the taxes raised in the Senate Finance Committee. However, House leaders have rejected the Senate Finance plan’s tax on high-value plans – the one financing mechanism that would keep pace with the rising resources devoted to health care would be the 40% levy on health insurance premiums. For more on this see here. House leaders are instead relying on a modified version of their original plan to impose a surcharge on higher income Americans.

It has also been reported today by the Washington Post that in order to come in under $900 billion dollars, House Democrats will cut out a provision that ensures that doctors receive their Medicare payment update formula. This would then be addressed in an expensive stand-alone bill. In the Senate version, the billions required to stop those same scheduled cuts in Medicare payments to physicians is only addressed for one year (then docs take a drastic 25% pay cut if no other action is taken). Not addressing this very integral and expensive aspect of healthcare in these comprehensive bills can give the incorrect appearance that the bills are able to be paid for - when that is not the case. And when inadequate financing is present, coupled with the dangerous mechanisms, rationing becomes a very real threat.

How soon floor action will occur in either chamber is unclear- though leadership insists that they mean to act soon.

SENATE PANEL TO VOTE TUESDAY

Senate Majority Leader Harry Reid (D-NV) announced this afternoon that the Senate Finance Committee will vote next Tuesday on its health restructuring bill. The Congressional Budget Office (CBO) released a preliminary cost estimate of $829 billion over the next 10 years. The CBO did warn that there could be changes once the final legislative text emerges. The $829 billion dollar price tag comes substantially at the expense of the senior’s Medicare program. For more see here.

After the panel votes, Reid will merge the Finance bill with the one passed by the Health, Education, Labor, and Pensions panel in July. North Dakota Sen. Kent Conrad (D-ND) on the finance committee told reporters the legislative process has a long way to go, noting, “It will be months before this is concluded.”

The Finance bill calls for new taxes on more expensive insurance plans and fees on industries including drug-makers and medical device manufacturers. The House versions employ surtaxes based on income.

WALL STREET JOURNAL WARNS 5% PENALTY WILL HURT LIFE-SAVING SPECIALISTS MOST

October 6. The Wall Street Journal has published a warning that the health care restructuring bill is "trying to engineer a 'cheaper' system so that government can afford to buy health care for all--even if the price is fewer and less innovative ways of extending and improving lives."

The paper takes note of the "provision in the Baucus bill that would punish any physician whose 'resource use' is considered too high. Beginning in 2015, Medicare would rank doctors against their peers based on how much they cost the program-- and then automatically cut all payments by 5% to anyone who falls into the 90th percentile or above. ... Since there will always be a missing chair when the music stops, every year one of 10 physicians will be punished if he orders too many tests, performs too many procedures, or prescribes too many drugs--whether or not the treatments result in better patient outcomes. The 5% fine is substantial given that Medicare's price controls already pay only 83 cents on the private dollar."

The paper points out that this rule will impact specialists, like oncologists and cardiologists, and will operate in conjunction with changes in payment methodology that will impose severe cuts in treatment for heart disease and cancer -- because they are among the most expensive ailments to treat.

Also see pieces in the Washington Times: http://www.washingtontimes.com/news/2009/oct/05/the-haunting-of-medicare-clawbacks/ and http://washingtontimes.com/news/2009/sep/25/death-panels-by-proxy/
and a piece by syndicated columnist Nat Hentoff http://www.wnd.com/index.php?fa=PAGE.view&pageId=110710

SENATE FINANCE COMMITTEE WRAPS UP LATE THURSDAY

The Senate finance committee wrapped up late Thursday night. Voting on over one-hundred amendments, the Congressional Budget Office will now be charged with the task of giving the bill a final score on its cost. Once a preliminary score is given (and so long as it does not go over the anticipated amount- which would mean further amending next week), the Finance committee will meet and have a final vote. The bill is expected to pass.

At that point, the Help, Education, Labor and Pensions Bill must be merged with what is voted out of the Finance Committee and then this merged bill will come before the full Senate for more amendments, debate, and a final vote.

Sen. Rockefeller (D-WV) had submitted several Advance Care Planning amendments, but none were brought up in the committee. These dangerous amendments can still be offered when the full Senate begins debate on a merged bill.

PRICE CONTROLS REAR THEIR UGLY HEAD

October 1, 2009. The ability of Americans to choose to use their own money to obtain insurance policies less likely to ration in the exchanges to be set up by the health restructuring bill may be in danger. Originally, state-based "exchanges" were designed to allow comparison shopping among all insurance plans that provided the basic benefits. Now, however, a proposal is afoot to authorize states to limit the value of the insurance policies all Americans using the exchanges may purchase, by allowing them to exclude policies government authorities believe "do not offer good value and cost-effectiveness." This would effectively allow the imposition of price controls, 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.

As the Senate Finance Committee consideration of amendments to its health care restructuring bill drew to a close this evening, Senators Jay Rockefeller (D-WV) and Kent Conrad (D-ND) got a commitment from Chairman Max Baucus (D-MT) to attempt to add such a to the bill, as it is melded with the version reported from the Senate Health, Education, Labor and Pensions Committee in July before the product goes to the Senate floor to a vote.

In a similar vein, Senator Maria Cantwell's (D-WA) amendment narrowly passsed earlier in the day. Agreed to by a vote of 12 -11 (with Sen. Blanche Lincoln (D-AR) joining Republicans), Sen. Cantwell's amendment allows states to establish insurance plans and negotiate rates for people earning between 133 to 200 percent of the federal poverty level- removing them from the exchange.

Sen. Cantwell claimed that 75 percent of the uninsured fall into that range. However, the concern is that "government negotiation" is not really negotiation, but in practice, has been shown to be price control. When there is only one buyer, they can set a price much lower than in a competitive market. Many of the details of the Cantwell Amendment are unclear, but it is one example of how people's access to unrationed care will be limited under this bill.

MEDICARE DOCTORS, PATIENTS AFFECTED BY HEALTH BILL PROVISION PENALIZING 1 IN 10 DOCTORS ANNUALLY

[Revised October 23, 2009]

Under the Senate Finance Committee health care restructuring bill, doctors who authorize treatments for their Medicare patients that wind up in the top 10% of per capita cost for a year will lose 5% of their total Medicare reimbursements for that year.[1] In the game of musical chairs, there is always one chair less than the number of players – so no matter how fast the contestants run, someone will always be the loser when the music stops. Similarly, under the penalty provision, a moving target is created – by definition, there will ALWAYS be a top 10%, no matter how far down the total amount of money spent on Medicare is driven.

As one editorial puts it:

Forget results. This provision makes no account for the results of care, its quality or even its efficiency. It just says that if a doctor authorizes expensive care, no matter how successfully, the government will punish him by scrimping on what already is a low reimbursement rate for treating Medicare patients. The incentive, therefore, is for the doctor always to provide less care for his patients for fear of having his payments docked. And because no doctor will know who falls in the top 10 percent until year's end, or what total average costs will break the 10 percent threshold, the pressure will be intense to withhold care, and withhold care again, and then withhold it some more. Or at least to prescribe cheaper care, no matter how much less effective, in order to avoid the penalties.[2]

In committee debate, Senator Kent Conrad (D-ND) said,

"As I try to put my feet in the shoes of a doctor, I don’t know how you separate out overutilization that is really overutilization. There is no way of knowing when you go through the year, what you are going to do at the end of the year."

He expressed concern there could be unintended consequences, adding that the penalty “leaves me cold.”

In a September 21, 2009 letter to Chairman Max Baucus (D-MT), the American Medical Association attacked its wisdom, noting, "Private and state insurance programs have experienced serious problems with the accuracy and validity of episode grouper methodologies to ‘profile’ physicians."

Civil libertarian columnist Nat Hentoff has written,

"Medicare doctors will not be the only losers. As the doctors struggle to keep abreast of the continually falling limit of the money they can authorize for their contingent of patients, consider what those patients will lose in the quality of their treatment."[3]

Senator Jon Kyl (R-Az) is expected to offer an amendment after the bill comes to the Senate floor (presently expected during November 2009) to strike the penalty provision, similar to one he unsuccessfully offered in the Senate Finance Committee, which was endorsed by the Alliance of Specialty Medicine. The Alliance is a coalition of 11 national medical specialty societies representing more than 200,000 physicians.

NOTES:
[1] The provision is (from language available at the Senate Finance Committee website) in "SEC. 3003. IMPROVEMENTS TO THE PHYSICIAN FEEDBACK PROGRAM." Beginning on page 683, the bill reads:

“(b) INCENTIVES FOR AVOIDING EXCESS UTILIZATION.—Section 1848(a) of the Social Security Act (42 U.S.C. 1395w–4(a)), as amended by section 3002(b), is
amended by adding at the end the following new paragraph:

9) INCENTIVE FOR AVOIDING EXCESS UTILZATION.—
(A) IN GENERAL.—With respect to physicians’ services furnished by an applicable physician on or after January 1, 2014, the fee schedule amount for such services furnished by the applicable physician during the year (including the fee schedule amount for purposes of determining a payment based on such amount) shall be 95 percent of the fee schedule amount that would otherwise apply to such services under this subsection (determined after application of paragraphs (3), (5), (7),
and (8), but without regard to this paragraph).

(B) APPLICABLE PHYSICIAN.—In this paragraph: (i) IN GENERAL.—The term ‘applicable physician’ means a physician which the Secretary determines is at or above the 90th percentile of resource use (or, if applicable, the standard measure
of utilization specified under subparagraph (C))with respect to a composite measure per individual, such as the composite measure under the methodology established under subsection (n)(9)(C)(iii).

While these adjustments may reduce the degree to which physicians are disproportionately penalized if they have sicker patients or work in high-cost areas, they do not change the fundamental danger of this provision, which (as explained above) is to create continual pressure on doctors to make ever-increasing reductions in the treatments and tests they order for their
patients so as to avoid being in the penalized top 10%. The Congressional Budget Office rates this as taking almost $1 billion from Medicare payments over a period of 6 years. See CBO 10/07/09 letter to Chairman Baucus, Table, page 3 of 9.

[2] Washington Times, September 25.

[3] Nat Hentoff column.