NEW & UPDATED RATIONING RESOURCES

With most of the midterm election results in , voters have sent a strong message in favor of repealing the Obama Health care law. Rasmussen Reports telephone exit polling found that 59% of those who voted on Election Day favor repeal of that law. This came along side another poll which showed that 83% of Likely U.S. Voters think it is at least somewhat likely that Republicans will vote to repeal the health care measure passed by Democrats in March.

With the new wave of pro-repeal House members, the health law is again placed in the center of political debate. The Powell Center has UPDATED its resources that demonstate how the Obama Health Law can ration your care. Please visit our site devoted to the rationing elements in the Obama Health Care law: www.nrlc.org/HealthCareRationing

NEJM ARTICLE CALLS FOR MORE LEGISLATION TO GUARANTEE THE USE OF “QUALITY OF LIFE” CRITERIA

A revealing new article titled, “Legislating against Use of Cost-Effectiveness Information” was published last week in the New England Journal of Medicine. In the piece, the authors, Peter J. Neumann and Milton C. Weinstein, attempt to make the case that the Obama Health Care law is flawed in that it did not go far enough in rationing care.

Why? Because it bans the use of the controversial “Quality Adjusted Life Year” or QALY. For the article see here.

From the pro-life perspective this is practically the only dangerous element that ObamaCare doesn’t contain. This fundamental restructuring of the American health system includes a powerful rationing commission. As a result, basically, doctors, hospitals and other health care providers will be told by Washington just what diagnostic tests and medical care are considered to meet “quality and efficiency” standards—not only for federally-funded programs such as Medicare, but also for health care paid for by private citizens and their nongovernmental health insurance. [See here].

At least for now, ObamaCare does not explicitly include the use of QALY or any such equivalent which is a tool often used to discriminate on the basis of disability, age, and “quality of life.” But there are a slew of proponents saying it ought to be included and Obama chose as a key implementer of ObamaCare a man who is a fan of the British health care system which does employs QALY.

But, as noted above, Neumann and Weinstein lament that the QALY is not included.

What is QALY?
In general, a QALY assumes that a year of life lived in perfect health is worth one QALY, and that a year of life lived in a state of less than perfect health is worth less than one QALY. In a system that faces budget shortfalls, this calculation can be used to set an upper limit on the treatment that will be authorized.

This type of assessment is so dangerous, not only because it is being used to ration care abroad, such as by the National Institute for Health and Clinical Excellence in the United Kingdom, but also because we see many influential American academics and health providers advocating the use of QALY.

For one ominous example, we need look no further than Donald Berwick, who Obama appointed to head the Center for Medicare and Medicaid Services which runs the nation's massive Medicare and Medicaid programs. He gave an interview to Biotechnology Health Care in 2009 in which he praised the British system which famously uses QALY’s.

He told Katherine Adams that The National Institute for Health and Clinical Excellence [NICE] has “developed very good and very disciplined, scientifically grounded, policy-connected models for the evaluation of medical treatments from which we ought to learn.” [See here]

A September 13, 2009, USA Today article titled “Kidney Doctors Question Dialysis Guidelines” describes a commentary published in the Journal of the American Society of Nephrology written by Felix Knauf and Peter Aronson. In the prestigious journal, the pair openly says that dialysis rationing would curb Medicare spending on chronic kidney failure in a big way. They lament that “physicians are often willing to provide dialysis care to patients with greatly diminished quality of life.”

In a featured piece in the July 19, 2009, New York Times Magazine, Princeton bioethicist Peter Singer openly advocated government rationing of health care, using QALYs. He made it clear that society should be more willing to withhold treatment from those who are old and those with disabilities.

And now, another example among many, we see an article October 14 in the prestigious New England Journal of Medicine.

The authors of last week’s NEJM piece write that “QALYs provide a convenient yardstick for measuring and comparing health effects of varied interventions across diverse diseases and conditions.” This “yardstick” would mean practicing discrimination against countless patients.

What Neumann and Weinstein ignore is that the assumptions built into the use of quality-adjusted life years are often inaccurate. As Hayden Bosworth of the Duke University Medical Center documents, “Patients who have not experienced a stroke ... or individuals at risk for future stroke ... respond with low [quality of life] estimates for physical impairments. Yet it is clear that patients who actually experience a high level of impairment as a result of a stroke provide high estimates of their quality of life.”

Predictably, the authors write that ban on the use of QALYs in the Obama health law
“…represents another example of our country's avoidance of unpleasant truths about our resource constraints. Although opportunities undoubtedly exist to eliminate health care waste, the best way to improve health and save money at the same time is often to redirect patient care resources from interventions with a high cost per QALY to those with a lower cost per QALY.”

What unfortunately was lost in the mad push for health care legislation was real dialogue about the fact that Americans can afford the kind of health care we want and deserve.

OBAMA HEALTH CARE LAW AND MEDICARE – MORE “MEANINGFUL CHOICE” OR DENIAL OF CHOICE TO AVOID RATIONING?

With the rollout of a few of the early provisions of President Obama’s new health law, public opinion against the health law remains high. The Administration continues to attempt to sell key elements to a skeptical public, chief among them are the massive changes to the Medicare program for seniors.

Administration officials had been continually making the dubious claim that the new health law would not harm Medicare, despite nearly half a billion dollars in cuts and other changes. However, according to published reports, they’ve had to do some backpeddling, particularly as it relates to the very popular “Medicare Advantage” plans.

Today Politico reported that,

“The Department of Health and Human Services quietly changed the web version of a speech in which HHS Secretary Kathleen Sebelius described how the health care overhaul is going to affect Medicare Advantage plans, a controversial section of the law, after aides to Sen. Charles E. Grassley (R-Iowa) challenged its accuracy.

“Sebelius had told an AARP conference in Orlando last week that next year ‘there will be more Medicare Advantage plans to choose from,’ according to prepared remarks e-mailed to reporters and posted on HHS’s website on Monday. Grassley’s staff asked HHS to back up the statement, an aide to the senator, who has long been skeptical of Democrats’ claims about the health law’s impact, told POLITICO.

“As Grassley’s office was drafting a formal letter to Sebelius questioning the claim, the speech text was altered on the HHS web site without noting the change. The statement about more Medicare Advantage plans was deleted and now reads, ‘there will be more meaningful choices.’"

Sebelius effectively concedes the number of Medicare Advantage plans will diminish under the law; however, the new administration line is that “seniors will have now have more meaningful choices."

"More meaningful choices" is a clever attempt to disguise the fact that seniors will be "protected" from having the choice to spend their own money to save their own life. Millions of Americans have chosen the Medicare Advantage plan known as “private fee-for service plans.” This option allows senior citizens the choice of health insurance whose value is not limited by what the government may pay toward it. These plans had been able to set premiums and reimbursement rates for providers without upward limits imposed by government regulation. This means that such plans would not have been forced to ration treatment, as long as senior citizens chose to pay more for them.

Now, the Obama Health Care Rationing Law allows bureaucrats at CMS (Center for Medicare/Medicaid Services) to refuse to permit senior citizens to choose private-fee-for-service plans that charge what the bureaucrats regard as premiums that are too high. Literally, the new law allows CMS to reject any private-fee-for-service plan (or any other Medicare Advantage plan) , for any reason or no reason.

What the Administration calls "more meaningful choices" will ultimately mean that seniors will be prevented from having the effective choice to spend their own money to save their own lives.


Note: revised 10.11.2010

NEW HHS ANNOUNCEMENT RAISES MORE RATIONING CONCERNS

While some of the most dangerous rationing elements of Obamacare are not slated to occur until 2014, other provision are coming on line sooner – ones that may lead to the denial of treatment.

Earlier this week, the Department of Health and Human Services (HHS) announced that 45 states had applied for money set aside in the new health care law which they can use to set up or, in some cases strengthen existing laws surrounding “premium review.” Why should we be concerned?

One of the provisions of Obamacare that took effect immediately requires health insurance companies to file proposed premium increases and to justify (any yet to be defined) “unreasonable” increases to the government. The states are meant to be the first line of enforcement, with HHS acting as a fallback enforcer.

But how the term “unreasonable” is used may prove to be a dangerous thing. HHS Secretary Kathleen Sebelius told reporters in a conference call that officials are still crafting a definition of the term “unreasonable” with the assistance of industry and consumer advocates and other stakeholders.

That means that this fall, when nearly everyone enrols for next year’s benefits, any rate increases an insurer might need to make, must now be justified and be what HHS considers reasonable.

This ramped up review authority, (purported to be aimed at shielding the insured from being gouged by their insurers) is merely one of many tools built into Obamacare aimed at limiting what people can spend 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.

Many states already review insurance increases. But now many states will receive money to beef up that effort, or to create new regulations to give them more power to reject premium increases. In other words the funding these 45 states will receive is merely the first round.

Most importantly, in 2014, under ObamaCare the states will actually become empowered to block insurers from participating in the state based “exchanges if they are judged to show a pattern of excessive or unjustified increases.”

Under this new authority, exchanges will be able, in effect, to limit the value of the insurance policies that Americans using the exchanges may purchase. Here’s how.

Not only will the exchanges be allowed to exclude policies when government authorities do not agree with the size of the premiums, they will also be able to look at any proposed increases plans charge that are outside the exchange . The states and ultimately HHS have the power to say that “particular health insurance issuers should be excluded from participation in the Exchange based on a pattern or practice of excessive or unjustified premium increases” [42 USCS § 300gg-94]

This will create a “chilling effect,” deterring insurers who hope to be able to compete within the exchange. Moreover, this innocuous little provision also says that “we will look at what insurers do in all their plans, not just ones in the Exchange.” This means that all insurers can be prevented from offering adequately funded plans to their regular customers if they have even one plan in that exchange. And the less money available for plans, the less care they will be able to provide.

As health insurance companies 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, they will ration lifesaving medical treatment. Under a scheme of premium price controls, 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.”

This dangerous provision is one among many that we will continue to highlight as the rationing elements of Obamacare come online.

NEW MEDICARE REPORT SIGNALS TROUBLE

Running ads featuring the beloved Andy Griffith, Obamacare advocates used Medicare’s recent 45th birthday to attempt to continue to sell the unbelievable claim that the massive cuts planned for Medicare will not hurt the program. In the ad, the veteran television star attempts to assure seniors they won’t lose benefits. But with the hundreds of billions of dollars in cuts facing the program, this assertion is almost laughable.

As it happened the Medicare Trustees report came out at the same time that the Obama administration is engaged in this major campaign to sell its health care “reform.” While the reports offers the assurance that Obamacare will add an additional 12 years of life onto the Medicare program, there is some very ominous information contained in “2010 Annual Report of the Boards of Trustees of the Federal Hospital Insurance and Federal Supplemental Medical Insurance Trust Funds.”

By law, the Board of Trustees of Medicare is required to issue annual reports on the financial status of the Medicare Trust Funds. Those reports are required to contain a statement of actuarial opinion by the Chief Actuary. The Chief Actuary of CMS is responsible for providing accounting information and cost-projections to the Medicare Board of Trustees in order to assist them in assessing the financial health of the program.

While the report says that Medicare will save money and add years, there are major flaws – ones so major that in the first time in 45 years, we have what amounts to a dissenting opinion in the report. For the FIRST time in report history, Richard Foster, Medicare’s Chief Actuary, felt it necessary to release a detailed statement appended to the Trustees’ Report calling the assumptions “implausible” and “unreasonable.” [1]

The report makes assumptions that simply do not hold up under scrutiny. Pushing aside the notion that hundreds of billions on cuts have no effect on services under the Medicare program, the trustees make more predictions for the future.

For example, the trustees' report assumes Medicare physician fees will be cut by 30 percent over the next three years. We have seen this fiction play out year after year, something Foster calls "impossible."

Since the mid-1990’s, Medicare physicians were supposed to face serious yearly cuts to keep Medicare solvent. However, faced with political reality and the importance of paying doctors enough to participate in the Medicare program, Congress cobbled together expensive bills to find the money.

Basically, the big cuts never happen, which means that Medicare is quickly approaching insolvency. But now we are supposed to believe that under Obamacare, Congress will allow the devastating cuts to occur, driving countless physicians out of Medicare.

For another example, the trustees' report assumes that productivity in medical services will match productivity in the rest of the economy. However, in the very same breath we see the admission that “Most categories of health care providers have not been able to improve their productivity to the same extent as the economy at large.” [1]

For well over a decade, the National Right to Life Committee has argued this very point – but from a different perspective. NRLC points out that continually rising productivity in other sectors of the economy, such as agriculture, frees up resources that can be and are used to extend our lives and improve our health. So as the cost of goods falls, resources are freed up for healthcare, whose price is dropping in inflation-adjusted amount, but just not as rapidly as the price of goods. This does not mean there aren’t real cost problems associated with health care.

The first problem is that while the benefits of rising productivity are seen in rising real incomes for Americans, those income increases are not distributed equally. Those whose incomes have not increased--when adjusted for inflation--may truly face difficulties because of the rising nominal (meaning the current value of money) cost of health insurance. When health costs rise, and incomes do not rise as fast, this led to many of the uninsured.

Second, while the American economy as a whole can continually afford more and better health care (because of rising productivity in other sectors that frees up more and more resources for health care), the same is not true of government’s share of health care costs. For further description of this, see http://nrlcomm.wordpress.com/2009/06/13/hcrwebinar. This ‘webinar’ will not only describe how the economy as a whole can afford health care, but how the cost of what people can afford could be used to address the government healthcare entitlements.

With this notion that somehow Medicare can increase in productivity (when there is no proof that health care can do this to the extent Obamacare assumes) along side the totally unrealistic conclusion that hundreds of billions in cuts somehow make Medicare stronger, the program is in real trouble.


[1] See Centers for Medicare and Medicaid Services, “2010 Annual Report of the Boards of Trustees of the Federal Hospital Insurance and Federal Supplemental Medical Insurance Trust Funds,” August 5, 2010, at https://www.cms.gov/ReportsTrustFunds/downloads/tr2010.pdf (August 10, 2010).

2010 General Session: 2,000 Pages of Really Bad Stuff

Listen to Master of Ceremonies and National Right to Life Executive Director David N. O’Steen give background on how the health care system worked before and will work after Obamacare. Then, Federal Legislative Director Douglas Johnson discusses abortion coverage in the new law. Finally, Burke Balch, J.D. who directs the Powell Center for Medical Ethics discusses rationing components of the law. To download the PowerPoint presentation accompanying the discussion of rationing, click on "Rationing in the Obama Health Care Law, June 26, 2010." To see as well as hear the presentation, view the C-SPAN coverage.

MAIN PILLAR OF OBAMACARE UNDER FIRE

An article from last week’s New York Times titled, “Study Cited for Health-Cost Cuts Overstated Its Upside, Critics Say,” has stirred up criticism surrounding one of the main pillars Obamacare.

The Obama administration, in its mad push to enact health care reform, made the unbelievable argument that they would pay for reform by simply cutting billions in wasteful health care spending, and that there would be no outcome on the quality of care people receive.

Throughout the course of congressional health care hearings leading up to the health reform passage, as well as in open floor debates, Obamacare advocates would over and over cite to a Dartmouth Atlas College research project, often inviting its authors to testify. Advocates touted the research as if it was definitive proof of their claim – when it was far from it. The compiled research focuses on the spending levels of Medicare patients with a chronic illness who were in their last six months or two years of life.

The Dartmouth research makes the wild claim that it could cuts billions of what it characterized as “wasteful” spending and actually make people healthier. The NYT quotes Dr. Elliott Fisher, a physician who is one of the principal authors of the Dartmouth work writing, “We show where the waste is in medicine. If everyone could operate like Oregon, Seattle or the Upper Midwest, there’s huge savings.”

The NYT points to a key criticism of the compiled research writing,

“But the atlas’s hospital rankings do not take into account care that prolongs or improves lives. If one hospital spends a lot on five patients and manages to keep four of them alive, while another spends less on each but all five die, the hospital that saved patients could rank lower because Dartmouth compares only costs before death. 'It may be that some places that are spending more are actually getting better results,' said Dr. Harlan M. Krumholz, a professor of medicine and health policy expert at Yale. Failing to receive credit for better care enrages some hospital administrators.”

The systematic New York Times review of varying criticisms is well worth reading. But the short summary is that there is very little evidence to support the Dartmouth conclusion that the nation’s best hospitals are typically the least expensive. In other words, the idea that Americans are in fact getting more for their money remains a valid argument – one that was almost totally ignored throughout the health care debate.

There is reason to remain concerned over this highly criticized Dartmouth research. The NYT writes,

“Dr. Donald Berwick, nominated by President Obama to run Medicare, called it the most important research of its kind in the last quarter-century. In March, in response to the Congressional Democrats who would have otherwise withheld their support for the health legislation, the administration made a promise. It said it would ask the Institute of Medicine, a nongovernment advisory group, to consider ways of putting the Dartmouth findings into action by setting payment rates that would punish inefficient hospitals and reward efficient ones.”

This distorted view of the Dartmouth Atlas research could dangerously be institutionalized and used to financially punish hospitals that have high survival rates and improve people’s lives – all in the name of cost.

NRLC has long argued that the cost of health care does not require rationing life-saving treatment (see here). Obamacare advocates wanted to sell the idea that by simply cutting wasteful spending, the expansion could pay for itself. This faulty and gratuitously cited Dartmouth Atlas compiled research gave them cover for that argument – cover that is quickly evaporating. However, when increased health care spending does in fact save lives and increase quality, the administration and new health care law sadly offered no other real long-term way to pay for the kind of quality care Americans deserve.

How the new Health Care Law Limits Senior Citizens’ Right to Use Their Own Money to Save Their Own Lives

Section 3209 of the health care bill signed into law on March 23, 2010 effectively allows federal bureaucrats at the Centers for Medicaid and Medicare Services (CMS) of the federal Department of Health and Human Services (HHS) to bar senior citizens from adding their own money, if they choose, to the government contribution in order 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.

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 would 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.

It is not widely understood that, as a result of legislative changes in 1997 and 2003 undertaken at the behest of the National Right to Life Committee, this third alternative had become 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, under the law in effect through 2010 [endnote 1], was not limited by what the government may pay toward it. These plans could set premiums and reimbursement rates for providers without upward limits imposed by government regulation.

This means that such plans would not have been forced to limit treatment, as long as senior citizens were left free to choose to pay more for them. 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. To cope with this, providers engage in “cost shifting” by using funds they receive in payment for treating privately 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. Thus, preserving this option without premium price controls would not only have allowed retirees who could afford it to reduce the danger of being denied treatment; it also would have resulted in the ability of providers to provide more treatment to those who cannot afford to add additional funds on top of the government contribution. See generally the Powell Center's webinar on affording health care without rationing.

Section 3209 of the new law indirectly amends the section in the Medicare law as it previously existed that allowed private fee-for-service plans to set their premiums without approval by the Center for Medicare and Medicaid Services (CMS) by adding, “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.”[endnote 2] This gives statutorily unlimited discretion to refuse to permit private-fee-for-service plans to charge premiums sufficient to offset the reductions in the Medicare government contribution.

Theoretically, of course, the federal bureaucrats given this new authority could choose not to exercise it. That seems highly unlikely during the Obama Administration, however, since on February 22, 2010 the President specifically proposed that the health bill include a provision under which Medicare Advantage plans (which, as noted, include the private-fee-for-service plans) would explicitly "be prohibited from charging seniors more than they would pay for services delivered under the traditional Medicare program."[endnote 3] While this explicit prohibition was not included in the final law (presumably because rules governing the “reconciliation” procedure did not permit it), it clearly demonstrates the policy stance of the Administration, which under Section 3209 it will now have authority to implement.

TECHNICAL EXPLANATION
Understanding how the health care bill that became law on March 23, 2010 gave power to the federal Department of Health and Human Services (HHS) to limit senior citizens' right to add their own money requires following a complex trail within the bill and existing law to understand the effect of Section 3209. Under pre-existing law [42 U.S.C. § 1395w-24 (a)(6)(B)(i) & (ii)] [endnote 4], the Secretary of Health and Human Services has authority to “negotiate” the premiums to be charged by private Medicare plans (“Medicare Advantage” health insurance plans) – meaning that the Centers for Medicare and Medicaid Services (CMS) in HHS can keep a Medicare Advantage plan from participating unless it agrees to charge a premium acceptable to CMS– , but this authority did not apply to private fee-for-service plans [42 U.S.C. § 1395w-24 (a)(6)(B)(iv)] [endnote 5] – meaning that CMS had no power to impose a premium price control as a condition of participation for private fee-for-service plans, which could be excluded only if they failed to meet other applicable standards.

Section 3209 effectively trumps this crucial exemption by giving CMS the absolute and standardless discretion to reject premium “bids” by any Medicare Advantage plan, including a private fee-for-service plan. Specifically, it would add this subparagraph:

( c) Rejection of Bids.–
( i ) In general.–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.[endnote 6]

This means that the previous law that effectively forbade the Secretary to exclude a private fee-for-service plan on the basis that CMS considered its premiums to be too high has been trumped by the new ability of the Secretary to reject “any or every” premium bid submitted by a private fee-for-service plan.

ENDNOTES

[1] Section 3209 takes effect with regard to plans that will be in operation in 2011. See Section 3209( c).

[2] Section 3209 is found on page 904-905 of the engrossed Senate-passed bill.

[3] The proposal appears under the heading, "Title III . . . Guaranteeing Benefits for Seniors by Ending Overpayments to Insurance Companies."

[4] 42 U.S.C. § 1395w-24 (a)(6)(B) reads, in relevant part (emphasis supplied):

(B) Acceptance and negotiation of bid amounts.
(i) Authority. Subject to clauses (iii) and (iv), the Secretary has the authority to negotiate regarding monthly bid amounts submitted under subparagraph (A) . . . in exercising such authority the Secretary shall have authority similar to the authority of the Director of the Office of Personnel Management with respect to health benefits plans under chapter 89 of title 5, United States Code [5 USCS §§ 8901 et seq.].
(ii) Application of FEHBP standard. Subject to clause (iv), the Secretary may only accept such a bid amount or proportion if the Secretary determines that such amount and proportions are supported by the actuarial bases provided under subparagraph (A) and reasonably and equitably reflects the revenue requirements (as used for purposes of section 1302(8) of the Public Health Service Act [42 USCS § 300e-1(8)] [relating to the standards for setting different rates for individuals and families and for individuals, small groups, and large groups]) of benefits provided under that plan.

[5] 42 U.S.C. § 1395w-24 (a)(6)(B)(iv) provides:

(iv) Exception. In the case of a [private fee-for-service] plan described in section 1851(a)(2)(C) [42 USCS § 1395w-21(a)(2)(C)], the provisions of clauses (i) and (ii) shall not apply and the provisions of paragraph (5)(B), prohibiting the review, approval, or disapproval of amounts described in such paragraph, shall apply to the negotiation and rejection of the monthly bid amounts and the proportions referred to in subparagraph (A).

The “provisions of paragraph (5)(B)” incorporated by reference are:

(B) Exception. The Secretary shall not review, approve, or disapprove the amounts submitted under paragraph (3) or, in the case of an MA private fee-for-service plan, subparagraphs (A)(ii) and (B) of paragraph (4).

Paragraph (4), subparagraph (A)(ii) reads "the amount of the Medicare + Choice [now called Medicare Advantage] monthly basic beneficiary premium”; paragraph (4), subparagraph (B) reads “Supplemental benefits. For benefits described in section 1852(a)(3) [42 USCS § 1395w-22(a)(3)], the amount of the Medicare + Choice monthly supplemental beneficiary premium (as defined in subsection (b)(2)(B)). "

[6] The new subparagraph ( C ) has been added to 42 U.S.C. § 1395w-24 (a)(5). Since the language of subparagraph (a)(6)(B) that prevents the Secretary from “negotiating” private fee-for-service plan premiums is based on incorporating by reference subparagraph (a)( 5)(B), as explained in the previous note, and because clause ( i ) of (a)(5)’s new subparagraph ( C ) prevents subparagraph (B) from being construed to limit the Secretary’s authority to reject bids, it effectively makes meaningless the premium negotiation prohibition of subparagraph (a)(6)(B).

REPEALING OBAMA’S DEATH CARE LAW

The health care restructuring bill approved 219 to 212 by the House of Representatives on Sunday, March 21, 2010 and sent for President Obama’s signature (having been adopted by the Senate in December 2009) will, if not repealed before its most dangerous provisions come into effect, result in the rationing denial of lifesaving medical treatment, and consequent premature and involuntary death, of an unknown but immense number of Americans.

Americans will effectively be limited in spending their own money to save their own lives, unless they are able to travel abroad for life-preserving measures which will be denied them in this country.

These effects will occur regardless of whether the separate "reconciliation" bill also approved by the House is passed by the Senate, since its contents will in no way diminish, although they may exacerbate, the rationing in the bill about to be signed.

The Obama Health Care Rationing Law: The Commission That Will Develop Standards the Administration Will Impose to Limit Private Sector Medical Care

An 18-member "Independent Payment Advisory Board" [Sec. 10320(b)] is given the duty, on January 15, 2015 and every two years thereafter, with regard to private health care, to make "recommendations to slow the growth in national health expenditures . . . that the Secretary [of Health and Human Services] or other Federal agencies can implement administratively" [Section 10320(a)(5)(o)(1)(A)]. In turn, the Secretary of Health and Human Services is empowered to impose "quality" AND "efficiency" measures [Section 10304] on health care providers (including hospices, ambulatory surgical centers, rehabilitation facilities, home health agencies, physicians and hospitals) [Section 3014(a) adding Social Security Act Section 1890(b)(7)(B)(I)] which must report on their compliance.

In complex gobbledegook, what this amounts to is that doctors, hospitals, and other health care providers will be told by Washington just what diagnostic tests and medical care is considered to meet "quality" and "efficiency" standards – not only for federally funded health care programs like Medicare, but also for health care paid for by private citizens and their nongovernmental health insurance. And these will be "quality and efficiency" standards specifically designed to limit what ordinary Americans spend on health care. Treatment that a doctor and patient in consultation deem needed or advisable to save that patient’s life or preserve or improve the patient’s health but which the government decides is too costly – even if the patient is willing and able to pay for it – will run afoul of the imposed standards. In effect, there will be one uniform national standard of care, established by Washington bureaucrats and set with a view to limiting what private citizens are allowed to spend on saving their own lives.

Detailed analysis of other provisions that will impose rationing.

The Prospect of Repeal

The silver lining to this very dark cloud is that the most onerous rationing elements of the Obama health care law will not go into effect until 2015– well after the next Presidential election. For repeal to be a realistic prospect, three things are essential:

–The President who takes office in 2013 would have to be someone who would sign a repeal. (Theoretically, a two-thirds majority of both Houses committed to repeal could accomplish it even over a presidential veto, but achieving such numbers would be extremely difficult.)

– As a result of the 2010 and 2012 Congressional elections, a majority of those in the 2013 House of Representatives must support repeal.

– Also as a result of the 2010 and 2012 Congressional elections, the 2013 Senate must have an adequate majority committed to repeal. Full confidence of repeal would come from 60 of the 100 Senators supporting repeal – enough to impose cloture so as to overcome a filibuster. However, it is possible that, if the elections were clearly seen to have been greatly influenced by popular rejection of the Obama Health Care Rationing Law, then even if there were 41 or more Senators who had supported its adoption, some of them might prefer not to obstruct repeal, especially those soon up for re-election. It is also conceivable that the "reconciliation" process used to secure enactment of the health care law could be used by pro-repeal Senators to gut it with 51 votes.

While most observers expect gains by opponents of Obamacare in the election of Senators in 2010, a shift to a majority in support of repeal may not be achieved. However, in 2012, only 10 or 11 opponents of the law will beup for re-election, compared to either 23 or 24 Senators who voted for it standing for re-election. (This number depends on who wins the 2010 special election to fill Secretary of State Hillary Clinton’s New York Senate seat – its winner will have to face the voters again in 2012.) With these odds, the chance for pro-repeal Senators to emerge in control of the Senate in 2013 is a decent one.

In short, horrific as the enactment of the Obama Health Care Rationing Law is, now is not the time to despair. Rather, the pro-life movement must devote itself over these critical years – 2010 through 2012– to ensuring that the American people are given the facts needed to counter the placating misinformation the Obama Administration and its apologists in Congress and the press are already spreading, confident that with a spoon full of sugar we will swallow their deadly recipe. We must maintain and expand the current majority that, according to most public opinion polls, rejects the Obama Health Care Rationing Law.

LEGISLATIVE LANGUAGE TUESDAY

The actual language for the reconciliation bill on which the House of Representatives is expected to vote as early as Friday or Saturday is to be posted online, on the House Rules Committee website, Tuesday morning. The Robert Powell Center will evaluate the bill for rationing components and post its analysis on this blog. Because of the likely length and complexity of the bill, this analysis may take until sometime Wednesday fully to complete, although every attempt will be made to provide information as quickly as accurately possible.

Inside Health Policy has reported that according to a DC-based lobbying firm, Health Policy Source, a whip count seen by one of its lobbyists indicates that as of Friday morning there were 204 House Democrats committed to or leaning in favor of the bill. If accurate, this would mean that the House leadership had an even dozen to go before achieving the 216 needed for passage.

The House Budget Committee meets this afternoon (Monday, March 15, 2010) to pass a “shell” bill composed of the original language from the relevant House committees before the full House passed its version last November. The Rules Committee would substitute its version for that shell before the legislation came to the House floor. The terms of the substitute, incorporating the agreed changes to the Senate-passed bill negotiated behind the scenes among President Obama and Senate and House leaders, are expected to "deem" the Senate version to be passed. That bill would then apparently go to President Obama for his signature, while the Senate took up the House-passed reconciliation vehicle.

TOO CLOSE TO CALL

President Obama and Speaker Pelosi are making what is widely considered to be the last effort before midterm elections to pass health care restructuring -- using the Senate health care bill. Even without the votes lined up, a decisive house vote is set to occur on or about March 20th. Obama has delayed his Asian oversees trip by several days in order to assist in this last push, and to presumably be present to sign a bill if it should pass.

The House will vote on whether to approve a bill (H.R. 3590) that already passed the Senate last December. The House is meant to trust that the Senate-- once reform has passed -- will pass a bill of “fixes” to its bill. There is not yet a Congressional Budget estimate of the cost of these “fixes”, nor is the Senate bound to consider such a bill.

With mounting uncertainty, democratic leadership plans to head into a showdown at the end of this week. Democrats themselves voiced doubt, with a senior administration official describing the vote outcome as “a jump ball.”

HEALTHCARE ENDGAME APPROACHING QUICKLY

Democratic leaders are meeting and strategizing around the clock as Congress tries to pass the stalled healthcare bill either before the President leaves for an oversees trip on the 18th, or before the Easter recess beginning on March 26. At the same time Democrats seek a way forward, Virginia is poised to become the first state to ban mandated coverage (pending the signature of Gov. Bob McDonnell-R), should such a requirement be a part of a new federal health care bill.

"Thirty-four other state legislatures have either filed or porposed similar measures -- statutes or constitutional amendments -- rejecting health insurance mandates, according to the American Legislative Exchange Council," the Associated Press has reported.

The Congressional democratic leadership is facing two separate hurdles. The first hurdle is gaining or keeping enough votes to ensure passage among an increasingly squeamish body of democrats. The other is the process itself: the use of "reconciliation."

Reconciliation, which is a way around a Republican filibuster in the Senate, is widely believed to be the only way forward on the current bill. The rules seem to indicate that the House will have to pass the Senate bill (the bill passed last Decemner), and then a separate reconciliation bill containing changes --or “fixes”-- can be considered.

However, a ruling is anticipated by the Senate Parliamentarian in which he determines whether the reconciliation process can be used in this case. This may mean that Obama might even have to sign the legislation into law before the Senate can even consider the House “fixes”. This is said to be creating distrust among House Democrats of their Senate counterparts.

Complicating matters is whether at this point the Congressional Budget Office (CBO), a key non-partisan figure, can even score(give cost estimates) “fixes” at this point. Kent Conrad (D-ND) said that “For the scoring to change it has to have passed Congress, and that means both houses." Despite this, there are reports that a score might be out this week on the reconciliation portion.

With the matter far from settled, and another self-imposed deadline looming, the time and options are running short. All the while, serious rationing concerns described in earlier posts still remain.

-revised 3.11.2010

THE "FINAL ACT" IS ON

President Obama, Speaker Pelosi (D-Ca.), and Senate Majority leader Reid (D-Nv.) are launching one last effort to pass health care reform before the mid-term elections.

Speaker Pelosi is currently involved in writing a new bill that would make limited changes to the Senate-passed bill (H.R. 3590) using reconciliation, and would not be subject to a Republican filibuster in the Senate. This so-called "sidecar" bill will include some of the changes that President Obama wants made to the Senate bill, as contained in a list released by the White House on February 22.

The President plans to hold a press conference this afternoon promoting what the White House is calling the "final act" in the push for comprehensive reform. Although he is not likely to lay out yet another deadline, the speculation is that the Speaker and the White House want healthcare signed into law in the next two weeks. The president leaves for an oversees trip on March 18th, and there is a week-and-a-half break for Easter at the end of the month.

DESPITE SUMMIT, DEMOCRATIC LEADERSHIP FORGES AHEAD

President Obama and key congressional leaders just wrapped up a summit on health care late this afternoon. Despite the seeming spirit of bipartisanship, little agreement resulted from the meeting.

Although the tone of the meeting was generally amicable, while wrapping up the summit, the President chastised Republicans for attacking the "MedPac Commission". The “Independent Payment Advisory Board” he referred to is a board which is given the authority to recommend, and gives the HHS Secretary the authority to limit the right to use one's own money to save one's own life. He said, “If we are serious about squeezing out the waste, you should embrace those mechanisms [IMAP] that are in the bill.” For more on this controversial provision, see here.

Sen. Rockefeller (D-Wv.) also provided an interesting insight saying, "Sometimes decisions have to come from Washington." The 'decisions' he touched on in his remarks today were 1. government review of premium rates, 2. the imposition of "loss ratios", and 3. the establishment of a Medicare commissions (meant to make cuts to Medicare). For further analysis of Rockefeller promoting these same idea in the Senate see here and here. Other than Rockefeller's open and impassioned plea for more bureaucratic control, the congressional members mainly stuck to their usual rhetoric, be it - eliminating preexisting condition discrimination, or beefing up medical malpractice reform.

Despite the meeting, administration officials and Democratic congressional leaders already have made it clear that they remain committed to enactment of the essence of the rationing health bill passed by the Senate in December, H.R. 3590. Kathleen Sebelius, the secretary of Health and Human Services, has said that effort to enact the legislation will "accelerate" after the February 25 summit.

Obama, Pelosi (D-Ca.), and Senate Majority Leader Harry Reid (D-Nv.) have also been reported to be planning to have the Senate pass a second, smaller bill, containing certain changes to H.R. 3590, using reconciliation. This process would be immune from a Republican filibuster. Pelosi would then push the House to pass both the original Senate-passed H.R. 3590 and the new package of changes at about the same time, and President Obama would sign both bills into law.

OBAMA PROPOSAL LIMITS RIGHTS OF AMERICANS OF ALL AGES TO USE THEIR OWN MONEY TO SAVE THEIR OWN LIVES

The February 22, 2010, Obama Administration health care proposal imposes premium price controls on ALL insurance plans, not just those for Medicare-eligible senior citizens. That means that the right of Americans to spend their own money to get insurance plans less likely to deny treatment will be significantly limited. People will not be allowed to spend their own money, if they choose, to improve the chances of saving their own family’s lives.

It is basic economics that price controls force rationing.

Under the President’s proposal, states and the federal government would be empowered to review and reject premiums charged by any health insurance plan, even the supposedly "grandfathered" plans that Americans now have.

Yet the Administration has the temerity, even now, to state, "For Americans with insurance coverage who like what they have, they can keep it. Nothing in this act or anywhere in the bill forces anyone to change insurance they have, period."

It is as though a government, concerned about the high cost of restaurant food, imposed a price limit of $5 per meal, and then asserted that for those who like their restaurant food, nothing will force them to change their eating habits. The reality, of course, is that restaurants would be unable to afford to offer meals at prices below the cost of their ingredients. Consequently, about all restaurant-goers would be able to get would be fast food.

Similarly, when every premium increase is subject to veto by government officials, it means that instead of Americans making their own choices balancing the cost against the benefit in evaluating competing insurance plans, that decision will be taken out of their hands by bureaucrats whose principal duty is to hold health care spending down. Denial of lifesaving diagnostic tests and treatment would surely follow. This is rationing, pure and simple.

OBAMA PROPOSAL THREATENS TO DENY SENIOR CITIZENS ABILITY TO USE OWN MONEY TO SAVE THEIR OWN LIVES

The Obama health care proposal issued this morning would take away from America’s senior citizens their current right to add their own money on top of the government Medicare contribution to get health insurance less likely to deny treatment through tightly controlled managed care. (See http://www.nrlc.org/MedEthics/PLPositionMedicare.html ). It would do so even as it cuts the government contribution to Medicare by hundreds of billions of dollars.

Under "Title III . . . Guaranteeing Benefits for Seniors by Ending Overpayments to Insurance Companies," the Obama proposal states that Medicare Advantage plans – the alternative that now allows older Americans, if they wish, to pay more to get insurance less likely to ration treatment– will "be prohibited from charging seniors more than they would pay for services delivered under the traditional Medicare program."

Thus, older Americans would be prohibited by law from making up the Medicare shortfall by using their own money to save their own lives. (See http://www.nrlc.org/MedEthics/JusticeArgument.html )
This means that, even as more and more doctors and other health care providers are leaving the Medicare program because of low government reimbursement rates – rates that under the Obama bill will decline still more in comparison to medical inflation– senior citizens will have nowhere to turn. Their only option will be tightly managed plans that provide less and less treatment.

In a case of genuine chutzpah, the Obama proposal then goes on to claim that "all ideas that ration care . . . will be banned" – even as it imposes what will be ever-increasing rationing on senior citizens.

RECONCILIATION STILL ALIVE REGARDLESS OF UPCOMING HEALTH SUMMIT

With the White House health care summit slated for next week, Republicans have been vocalizing concerns over the genuineness of many Democrats and of the President’s willingness to come to bipartisan agreement.

Yesterday, Roll Call’s David M. Drucker wrote, “Senate Democrats say they see no need to abandon the idea of using reconciliation to pass health care reform this year just because President Barack Obama has scheduled a bipartisan summit next week to try to break the impasse on Capitol Hill.”

With many Democratic Senators already opposing reconciliation, it faces other challenges. Robert Dove, who a chief Senate parliamentarian for over a decade, told listeners on a Galen Institute conference call that reconciliation would be a tough road. Both in terms of procedural hurdles and of content, there are challenges at every turn.

Democrats would need to meet many 60 vote thresholds to overrule the parliamentarian should he, for example, rule any provision out of order because it is not related to the budget. The parliamentarian has the (mainly subjective) power to rule any provisions as "incidental" and strike it should the provision be aimed at creating new policy. And now the Democrats former 60 vote majority is gone.

To get an idea how serious the parliamentarian is at striking incidental provisions, The Hill writes “Dove oversaw some budget reconciliation measures in his time and, he notes, ruled out around 300 provisions from a 1995 budget reconciliation bill.”

Complicating matters further, in the letter inviting Republicans to the summit next week, the President stated that he intended to have any bill under discussion available online prior to the meeting. Although this would likely mean the Democrats would post a bill that worked out the House and Senate differences, the White House did not rule out submitting its own new bill.

With the renewed push brought on by next week’s summit, the possibility of comprehensive health care restructuring remains complicated, but is far from dead.

MIXED SIGNALS - REFORM EFFORTS CONTINUE

With a lack of clear direction on health reform, many Democrats have been calling on the president to take a stronger role and to signal the direction that Congress should move next. Over the weekend, this first signal arrived. During a pre-Super Bowl game interview with CBS’ Katie Couric, president Obama announced that there will be a bipartisan health summit late this month.

In the interview, the president seemed to indicate that the best shot at getting both the House and Senate on board would be to scrap the current bills. At the same, however, the White House is sending mixed messages -- indicating it has no plans to abandon the current health reform effort. Politico was told by a White House official that “The Feb. 25 meeting is an attempt to reach across the aisle but not a signal that the president plans to start over, as Republicans have demanded.”

In response to the invitation to the summit, Republican Minority John Boehner (Ohio), and Republican Whip Eric Cantor (Virginia) sent a letter to White House Chief of Staff Rahm Emanuel seeking clarification on this point,

“Assuming the President is sincere about moving forward in a bipartisan way, does that mean he has taken off the table the idea of relying solely on Democratic votes and jamming through health care reform by way of reconciliation? ....Eliminating the possibility of reconciliation would represent an important show of good faith to Republicans and the American people”

While Republicans sought assurances they would truly be included, at least one powerful member of the administration insisted that the partisan bills before the congress are still very much in play. On Monday, speaking before a health policy conference, H.H.S. Secretary Kathleen Sebelius indicated -- in no uncertain terms -- that this bipartisan meeting does not signal that the legislative process will start over.

Though there has been much speculation as to the will of the president to see this domestic policy initiative turned into law, Secretary Sebelius gives a clear answer. She told a Huffington Post reporter Monday that “I think [Obama] sees this as a step to actually accelerating the process forward. He wants to move forward. He wants a bill at his desk and he sees this as kind of closing the loop and let's go."

CANADIAN PREMIER TO COME TO U.S. FOR HEART SURGERY

Today multiple sources have reported that Premier Danny Williams of Newfoundland and Labrador is heading to the United States for heart surgery that is unavailable in the province which he governs.

The Canadian Press, similar to the U.S.-based Associated Press, wrote today, “His decision to go to the U.S. for health care has triggered a heated debate online, particularly in a province that has tried to restore public confidence in its health care services after a major scandal involving botched breast cancer tests.”

Canada, a single payer system, is often held up by lawmakers as a model worth emulating (in whole or part) in the U.S. However, the system has also been plagued by claims of waiting lines, inadequate care, and poor survival rates.

In 2007, one of the problems --wait times-- had gotten so bad that the Prime Minister announced:

“During the last federal election campaign, I and my party made a clear and unequivocal commitment to Canadians. We promised to sit down with the provinces to develop Patient Wait Times Guarantees, and today, I’m proud to announce, we’re delivering.”

With the promise of delivering a solution by 2010, many Canadians remain skeptical. For more of the problems associated with Canada’s health care system see here.

NRLC has long argued that the cost of health care does not require rationing lifesaving treatment. (See here) As Congress contemplates how to move forward to pass health care reform intended to have universal coverage, it is essential that any health plan include a means of sustainable, adequate funding for it (see here), so as to lessen the real danger of rationing.

This high profile story from Canada is one among countless examples of what can go wrong in the rationed health care systems elsewhere that rely on general fund revenues.

CONGRESS NOT GIVING UP REFORM EFFORTS

“While the focus shifts to legislation on jobs, party leaders are taking advantage of a cooling-off period to strategize, seek a new compromise and improve the public's opinion of the legislation” begins a Los Angeles Times article from this past weekend.

It has been a widely articulated theory that many Democrats are facing an impossible choice of getting beat-up in the election over a “yes” vote they already cast on the initial round of reform, versus having nothing to show for it at the end of the day. Many see their only option as passing something and then attempting to exalt and defend the bill later.

While it appears that healthcare, for the time being, has taken a backseat to other policy concerns such as job creation, Democrats have nonetheless been continuing to meet in order to strategize on how best to move healthcare forward. It has been reported that there may even be hope of agreement on a procedural path forward by the end of this week.

Although Speaker Pelosi (D-Ca.) has repeatedly said that she does not have the votes for the Senate Bill as is, there is the general feeling that a modified Senate bill offers the Democrats their best shot. Rep. Connolly (D-Va.) was quoted saying "The more they think about it, the more they can appreciate that it may be a viable . . . vehicle for getting healthcare reform done."

This being said, in the current political climate, many (at least up to 8) Democratic Senators are squeamish about the idea of using reconciliation to make changes to make the effort palatable to the House. And with Speaker Pelosi having already lost some votes, is very likely to lose more if certain important elements are not resolved. These issues include abortion funding as well as the tax on “Cadillac Plans.”

While the House would surely like to drop the tax altogether, this would create a need for new revenue as well as make it tough to get the bill past the Senate’s fiscal conservatives.

Although many challenges lie ahead, Democrats and the White House have not yet abandoned the pending Senate and House bills for any sort of scaled-back or bi-partisan approach.

THE PUSH IS STILL ON

Although the situation in a state of flux, the push for health reform of some sort is still on. In an interview with Politico newspaper this afternoon, Speaker Pelosi said that, “We have to get it done. What the process is doesn’t matter. The outcome is what is important, and what it means to working families in America.”

The idea of passing a comprehensive amendment via reconciliation in order to make the Senate bill palatable to the House is still very much alive. While some House Democratic leaders predict that they may be able to garner enough votes to pass the Senate healthcare overhaul bill through the House (contingent upon changes), Speaker Pelosi herself last night told reporters that "At this time, in this form, there aren't the votes in the House, not anywhere near, to pass the Senate bill.”

Meanwhile, the 80-member National Coalition on Health Care announced this afternoon that they are launching a campaign to promote this approach. The coalition’s CEO Ralph Neas said that President Obama and Congress should immediately resume negotiations, and then the Senate should use reconciliation to pass "corrections" - therefore only needing a simple majority.

Be it “corrections” to the Senate bill, or stand alone measures, an increasing number of Senate Democrats have voiced strong reservations about using the reconciliation process. (They include seven Democrats and one independent, Sen. Joe Lieberman)

Although the President is not expected to focus on health care in tonight’s State of the Union Address, we can expect that this issue will remain a top priority for both the White House and the Congress.

LEADERSHIP PUSHING AHEAD WITH SENATE RATIONING BILL

With this Wednesday's State of the Union address drawing near, Democrats have been tight-lipped on what strategy they may use to make a final push for health care reform. The White House and top Democratic congressional leaders, despite losing the seat previously held by Senator Ted Kennedy (D-Mass.) to Republican Scott Brown, are nonetheless determined to push ahead with broad health care legislation.

Although no formal strategy has been announced, multiple sources, including AP, have reported that House Speaker Nancy Pelosi (D-Ca.) will attempt to gather the votes needed to pass the Senate bill by addressing House concerns in a single comprehensive amendment. The Senate would then use a procedural maneuver known as reconciliation (which would only require 51 votes in the Senate) to adopt these House changes.

This modified Senate version will certainly contain dangerous and numerous mechanisms that would lead to rationing. Some of these include - premium price controls, a powerful Medicare cost-cutting board, and numerous grants of "quality" and "efficiency" discretion given to the Secretary of Health and Human Services. A full analysis of the rationing concerns present in the pending Senate bill is available here.

A SCALED-BACK APPROACH?

In a town hall meeting in Elyria, Ohio this afternoon, President Obama again expressed his commitment to passing some sort of reform, saying, "I am not going to walk away just because it's hard."

The form that health reform may take is evolving daily, but the idea of a scaled-back package – one that could attract Republican support - may be gaining steam. Several House Democrats, like Rep. Paul Grijalva (D-Ariz.), are pushing for the use of Reconciliation for some of the controversial portions, and a series of small measures which might attract Republican support.

This morning, Howard Dean (former Democratic Party Chairman) was also advocating passage of a series of scaled-back healthcare measures instead of one comprehensive bill, adding, "I would go back and do that though and run it through the reconciliation program."

Democratic leaders have said they will not hold votes on healthcare reform until Brown is seated. Further, Sen. Chris Dodd has called for lawmakers to "take a breather for a month, six weeks."
Although the timetable, as well as the direction of health reform is unclear, Obama and congressional Democrats are far from abandoning reform this session.

MORE INDICATIONS HEALTH BILL WILL BE PUSHED THROUGH RECONCILIATION PROCESS

Adding to information reported earlier today, Representative Paul Ryan (R-WI), the ranking Republican member on the House Budget Committee now says the majority will seek to use the reconciliation process to adopt as much as possible of the health care bill stalled by the Massachusetts victory of Senator-Elect Scott Brown.

NRLC PRESS CONFERENCE 1/21/2010 STATEMENT ON HEALTH CARE RATIONING

STATEMENT BY BURKE J. BALCH, J.D.
DIRECTOR, ROBERT POWELL CENTER FOR MEDICAL ETHICS
National Right to Life Committee Press Conference
Zenger Room, National Press Building, Washington, D.C.
January 21, 2010
　
Since its inception, the pro-life movement has been just as concerned with protecting the lives of people with disabilities and older people from euthanasia as it has been with protecting unborn children from abortion, and we have regarded government-imposed rationing of lifesaving medical treatment, food and fluids as an unacceptable form of involuntary euthanasia.

Therefore, the pro-life movement has grave concerns about rationing elements in the pending health care legislation. This morning’s Washington Post quotes Harvard health policy professor Robert Blendon as saying that what Massachusetts voters heard was now Senator-elect Scott Brown’s message that the national health care bills would require Medicare cuts. Indeed, a great deal of the backlash, not just in Massachusetts but also nationally, comes from those with insurance realizing that their health care will be endangered if the proposed legislation is enacted.

That legislation is based upon a widely held but fundamentally fallacious assumption – that it is necessary to "bend the cost curve" of health care spending because America cannot afford to continue to increase health care spending in the future as it has in the past.

As it happens, foremost among the economists who have debunked this fallacy is the Obama Administration’s nominee for Assistant Secretary for Planning and Evaluation in the Department of Health and Human Services, Columbia University health care economist Sherry Glied, in her 1997 book "Chronic Condition: Why Health Reform Fails." The first two of these charts are based on data from that book, updated.

The percent of the average family budget devoted to health care (including what employers pay for employees’ health insurance) has steadily grown from 3% in 1940 to 17% in 2006. This trend, and fear that it will continue unless "the cost curve is bent," lies behind the increasingly widespread view that rationing, however unpalatable, is essential. But as Glied’s book demonstrates, the trend must be seen in context.

During that same period, the percent of the average family budget devoted to food declined from almost 30% to under 15%, because of ever-increasing improvements in agricultural productivity. We can look further at the three essentials of food, clothing, and shelter combined. From 1940 to 2006, the percent of the average family budget devoted to these necessities fell from about 53% to about 33%. Consequently, the percent for health care plus food, clothing, and shelter actually dropped from 56% in 1940 to 50% in 2006. Productivity improvements in such areas as agriculture, transportation, and the assembly of clothing freed up resources enabling Americans, on average, to put significantly more resources into obtaining better health care.
While we are presently coping with severe economic downturn, research by health care economists across the ideological spectrum, from David Cutler[1] to Robert Hall and Charles Jones, shows that there is no reason, so long as productivity growth continues, why we cannot indefinitely continue to increase the proportion of our incomes that is spent to keep us alive and healthy.

The pending health legislation contains numerous mechanisms to hold down the amount of their funds Americans are allowed to use to save their own lives. As documented on our website, both the House and Senate bills would not just limit government health care spending; they would empower bureaucrats to limit what private citizens can spend to get unrationed health insurance. Senior citizens, faced with massive Medicare cuts, could be prevented by the federal Centers for Medicare and Medicaid Services from exercising the choice current law allows them to add their own money on top of the diminishing government Medicare contribution in order to get Medicare Advantage private fee-for-service plans less likely to deny treatments and diagnostic tests. Those participating in the health insurance exchanges could see their insurance choices limited to those plans most likely to deny care if government bureaucrats exclude plans less likely to ration care on the claim that they cost too much.

Under the Senate bill, an almost omnipotent commission would be directed not only to hold Medicare increases below the rate of medical inflation, but also to recommend to the HHS Secretary measures to keep increases private health care spending below medical inflation as well. The HHS Secretary would be empowered to impose so-called "quality" and "efficiency" standards on ALL health care providers governing the health care they provide not only under government programs but also under private insurance.

We don’t need this U.K.-style rationing, and the National Right to Life Committee will be working to prevent or repeal it. Last night, in an interview with George Stephanopoulos, the President suggested the possibility of a stripped-down bill, but one of the three items he mentioned as being in such a bill was "cost-containment." We will be carefully watching any such stripped-down measure to determine whether it includes provisions that, like the pending bills, would ration health care, and will be quick to publicize and oppose them.

[1] David M Cutler, Your Money or Your Life: Strong Medicine for America's Healthcare System (Oxford: Oxford University Press, 2004).

NYDN REPORTS PELOSI WILL SEEK RECONCILIATION

Late this afternoon, it was reported by the New York Daily News that Nancy Pelosi is set to announce that the House is going to use the Reconciliation Process to try and pass health care reform. The Reconciliation Process only requires a simple majority to pass a bill. In terms of the Senate, the critical ability of the Senate to filibuster is gone, and only 51 votes would be needed to pass the bill.

The Reconciliation Process is complex and difficult to navigate. Very basically, each of the committees with jurisdiction over Healthcare would need to pass bills, and then the House Budget Committee would merge these into a reconciliation bill and report it to the House floor – needing 218 votes to pass.

Similarly, in the Senate, the Finance and HELP committees would need to report bills that the Budget committee would meld together and then report that product to the Senate floor. Only 51 votes would be needed to begin consideration of it. Debate is limited to 20 hours. Amendments are unlimited but must be germane to the bill.

As long as the bill has been drafted not to violate the budget resolution the Senate can pass the bill with a simple majority. This rule is very difficult to adhere to and would eliminate huge and key elements present in the current reform bills. After the Senate passes their reconciliation bill, they work out differences with the House, if any.

If the reports are true, then we can fully expect a bill – one potentially wrought with rationing concerns. President Obama, speaking to ABC news last night said, “We know that we have to have some form of cost containment because if we don't then our budgets are going to blow up." It is precisely these cost-containment measures that raise rationing concerns. Continue checking back often, since health reform is far from dead.

ALL BETS ARE OFF

With the historic victory of Scott Brown to the United States Senate last night, health care reform is in jeopardy. Propelled to victory by a large number of self-identified independents, Brown, a Republican, has vowed to vote against the current health reform being contemplated by Congress. For many months, the focus has been on Senate Majority Leader Harry Reid’s (D-Nev.) gathering of and tenuous hold on 60 Democrats. Once Brown is seated, and the Democrats lose their filibuster-proof majority, all bets are off.

Politico newspaper writes in an web article titled “Dazed Dems Rethink Reform” that,

“But what seemed a certainty a week ago feels unlikely today. Don't take the word of republicans or even reporters on this one. Listen to what Democrats are saying as they appraised the results overnight: Sen. Russ Feingold (D-Wis.) told a local reporter, “It’s probably back to the drawing board on health care, which is unfortunate.” Rep. Bill Delahunt (D-Mass.) told MSNBC this morning he will advise Democratic leaders to scrap the big bill and move small, more popular pieces that can attract Republicans. And Anthony Weiner (D-N.Y.) said his leadership is “whistling past the graveyard” if they think Brown’s win won’t force a rethinking of the health care plan. Sen. Evan Bayh (D-Ind.), who now might draw a challenge from Rep. Mike Pence (R-Ind.), said the party needs to rethink its entire approach to governing.”

With Democrats growing markedly uneasy, the options before them grow more politically undesirable almost daily. Supporters of the health bills may make a fast and furious push to get the House to pass the Senate version before Brown is seated. There are other assorted political tricks and maneuvers that could be attempted – involving reconciliation – which would only require 51 votes. However, there is no Congressional Budget Office score that includes the modifications known to have been negotiated, like organized labor’s changes to the tax on so-called “Cadillac Plans”. Further, using the Reconciliation process has many problems of its own. The Byrd rule, which ensures that bills passed using this process relate to the budget, would likely mean many key (like insurer reform) parts of the bill would be out. Further, that CBO score must comply with rules, but again has not yet been sought. Also, the process of using Reconciliation would mean that Republicans could offer endless amendments, creating tough votes for the Democrats.

Late this afternoon President Obama, himself taking note of the turning political tide, urged lawmakers not to try to "jam a bill through" but to reduce the scope of the restrucuring effort to "those elements of the package that people agree on."

It is unclear what the strategy is going to be, but check back soon as this unfolds. One thing is certain, if the Massachusetts election of Scott Browns is a referendum on the dislike of the current health restructuring effort, then many supporters who were already becoming uneasy, are now decidedly so.

DEMOCRATS SOON SEEKING BILL COST ESTIMATE

Last night Democrats held another late night closed door meeting attempting to negotiate a final health care package. This morning, Rep. Charlie Rangel (D-NY Chairman of Ways and Means) told reporters that Democratic leaders hope to send a package to the Congressional Budget Office by Saturday. Rangel has also said that an agreement on "core issues" may be reached as early as tomorrow. Democratic leaders, who have been working out the differences between the House and Senate versions behind closed-doors, were unclear if they will be sending a complete bill, or just portions. The Congressional Budget Office score, which provides cost estimates, may be key to many members (especially if the cost is higher than expected), and neither the House or the Senate can afford to lose votes.

One of the key recent sticking points has been over the so-called tax on "Cadillac Plans." For more on this see here. However, House Speaker Nancy Pelosi has, this afternoon, told colleagues that organized labor struck a deal with the White House. Labor groups have not yet claimed agreement. Democrats are still hopeful that they will reach agreement and still have their eye on passing health care restructuring right around the presidential state of the union address.

THE MISUNDERSTOOD “CADILLAC TAX”

Today, leaders of organized labor met with President Obama at the White House to discuss the so-called “Cadillac Tax” on high-cost benefit plans that is a major source of funding in the Senate version of health reform. While the House levies a surtax on wealthy Americans to partially finance its version of health reform, the Senate and White House have indicated that they intend to stand by the Senate’s 40% tax on “generous plans.” They believe it is the only way to maintain the tenuous hold on the necessary 60 votes.

House Democratic leadership has promised a fight over the tax. 190 Democrats have signed a letter opposing the tax, and organized labor is mounting a major last change effort to fight the tax.

Despite the contentious debate, it has been a little looked-at fact that the Senate’s 40% levy on health insurance premiums is the one source of funding that could keep pace with the rising resources devoted to health care. Initially, this levy would apply (with some exceptions) to insurance plans that cost over $8,500 annually for an individual, or $23,000 annually for a family. These threshold amounts would increase each year by the average rate of inflation plus one percent.

What is spent on health care consistently rises substantially more each year than does the average inflation rate. Thus, over time, the effect of the “Cadillac Tax” would be that larger and larger proportions of those with health insurance would begin to pay the tax on gradually rising portions of their premiums.

This would mean that the level of health care for all would effectively be set by the collective decisions of many citizens (and employers) deciding what premiums they were willing and able to pay for health insurance, with the cost of covering the uninsured taken into account in those decisions. As the level of available health care changed, the health care available to those otherwise unable to afford it would change with it. A rising tide really would lift all boats. [Compare NRLC's plan to extend healthcare without rationing here and an explanatory webinar here.]

The Senate cannot even lose one Democrat and is standing by its 40% levy. The House continues to object. With the strong opposition from organized labor, combined with 190 Democrats in opposition to the provision, health care restructuring could be derailed by the defection of even a small number of House members.

MAJOR MEDICAL CENTER BEGINS REJECTING MEDICARE PATIENTS

The Mayo Clinic has long been an institution praised and emulated for its efficiency and forward-thinking policies. But now it has begun a pilot program that may set an undesirable precedent.

According to a story by David Olmos which ran at Bloomberg.com under the headline, “Mayo Clinic in Arizona to Stop Treating Some Medicare Patients,” its clinic in Glendale, Arizona is launching a pilot program where it will no longer accept Medicare patients and which will force its existing Medicare patients to pay up to $2,000 out of pocket to continue to be seen by their Mayo doctor.

The reason?...... The Mayo Clinic says it is no longer able to afford the low reimbursement rates Medicare offers providers. A Mayo spokesman, Michael Yardley, told Olmos that “The program’s payments cover about 50 percent of the cost of treating elderly primary-care patients at the Glendale clinic.”

The Mayo organization “had 3,700 staff physicians and scientists and treated 526,000 patients in 2008,” Olmos wrote in the December 30 story. “It lost $840 million last year on Medicare, the government’s health program for the disabled and those 65 and older, Mayo spokeswoman Lynn Closway said.” (See here for full story.)

According to the Medicare Payment Advisory Commission which makes recommendations to Congress, nationwide doctors receive around 20% less than the real cost of providing a service.

This move by the prestigious Mayo Clinic is very likely to a ripple effect. Olmos writes, “Mayo’s move to drop Medicare patients may be copied by family doctors, some of whom have stopped accepting new patients from the program, said Lori Heim, president of the American Academy of Family Physicians, in a telephone interview yesterday.”

“Many physicians have said, ‘I simply cannot afford to keep taking care of Medicare patients,’” said Heim, a family doctor who practices in Laurinburg, North Carolina. “If you truly know your business costs and you are losing money, it doesn’t make sense to do more of it.”

Citing surveys taken by her organization, Heim pointed out “While 92 percent of U.S. family doctors participate in Medicare, only 73 percent of those are accepting new patients under the program.”

This problem will no doubt be exacerbated by the health care bills passed out of both houses of Congress. Both rely heavily on deep cuts to the Medicare program to finance extending subsidies and coverage to additional Americans. In addition, the bills passed by Congress do not address the reoccurring problem of what is known as “doc fix.”

Each year, the rates paid to Medicare providers are supposed to be cut in order to keep Medicare solvent. In truth Congress cobbles together expensive bills yearly to ensure those cuts do not take place.

National Right to Life has long recognized this dilemma of how underpayments in the Medicare program can lead to rationing. NRLC was instrumental in creating an option in the Medicare program known as private-fee-for-service. Seniors can add their own money on top of the government contribution, so that their plan could offer adequate reimbursement rates to secure insurance for senior citizens. However the Medicare private-fee-for-service option is threatened by both the Hosue and the Senate versions of health care reform. For more on this see here.

Although for now the Mayo Clinic is only rejecting Medicare patients at one primary-care clinic in Arizona, it will assess the financial effect of the decision in Glendale “to see if it could have implications beyond Arizona,” according to Michael Yardley. This may be the start of a dangerous trend where seniors in the Medicare program will have very few options for the kind of care they deserve.