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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.

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