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Wednesday, December 23, 2009


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.


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.

Tuesday, December 22, 2009


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.

Saturday, December 19, 2009


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:


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.


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.


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.

Friday, December 18, 2009


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


Thursday, December 17, 2009


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.

Sunday, December 13, 2009


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

According to, 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, 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.

Wednesday, December 9, 2009


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, 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.

Tuesday, December 8, 2009


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.

Friday, December 4, 2009


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.

Wednesday, December 2, 2009

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.


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.


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 (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 . . . .

Tuesday, December 1, 2009


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.