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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.

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