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Thursday, March 25, 2010

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.

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.


[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).

Sunday, March 21, 2010


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.

Monday, March 15, 2010


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.

Sunday, March 14, 2010


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.”

Wednesday, March 10, 2010


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

Wednesday, March 3, 2010


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.