Robert Powell Center for Medical Ethics

Will Obama Make Recess Appointments to Controversial IPAB?

2011-06-29T10:50:00.001-07:00

Over the past several weeks, the White House has been scrambling to gain support for one of the most contentious and central provisions of the Obama Health Care Law, the Independent Payment Advisory Board (IPAB). Now it appears the Administration could ensure the Board’s operation even if the Senate refused or appeared unlikely to confirm those whom President Obama will appoint as its members by making what are called “recess appointments.” In light of a mounting bi-partisan call in the House to repeal the IPAB, this attempt virtually guarantees an immense fight.

Although many news accounts have focused on the Board’s mandate to impose Medicare cuts that a Congressional majority may not reduce, less attention has been given to the IPAB’s role in reducing what all Americans will be permitted to use out of their own private funds for their family’s health care. The Obama law directs the IPAB to issue recommendations to limit what ordinary citizens and their health insurance coverage can pay for medical treatment so as to prevent it from keeping up with the rate of medical inflation.

To implement these recommendations, the federal Department of Health and Human Services is empowered to impose so-called “quality” and “efficiency” measures on health care providers. Doctors who violate a “quality” standard by prescribing more lifesaving medical treatment than it permits will be disqualified from contracting with any of the health insurance plans that individual Americans, under the Obama Health Care Law, will be mandated to purchase. Few doctors would be able to remain in practice if subjected to that penalty.

This means that treatment that a doctor and patient deem advisable to save that patient’s life or preserve or improve the patient’s health, but which exceeds the standard imposed by the government, will be denied even if the patient is willing and able to pay for it.

A bill before Congress for IPAB’s repeal has 144 co-sponsors from both sides of the aisle. The Hill newspaper reports that over 270 medical organizations sent a letter to Congress urging repeal late last week.

However, even if passed by the House, it is nearly certain that repeal this year or next would stall in the Senate, or face an Obama veto.

Now public attention is being drawn to the President’s potential ability to get the Board up and running even in the face of Senate opposition to his appointments to the Board.

Responding to an inquiry from pro-life Senator Tom Coburn (R-OK), the non-partisan Congressional Research Service concluded that President Obama could make enough recess appointments, including a chair, to conduct business. While the law does not require the Board to begin issuing reports until 2014, it provides funding for its operations starting October 1 of this year when federal Fiscal Year 2012 begins.

Both President Obama and Kathleen Sebelius, his Secretary of Health and Human Services, have been insistent in defending the Board. In an April 13 deficit speech, the President advocated directing the Board to limit even further which of their resources private citizens will be permitted to devote to saving their lives and those of their family members. In a recent op-ed piece, Sebelius lashed back at its critics, making the self-contradictory claim that it will be both “independent” and “accountable to Congress and the president.”

To prevent an end-run, the House of Representatives could use its constitutional power to prevent the Senate from adjourning for more than three days without its consent to attempt to prevent the occurrence of a “recess” that would enable Presidential recess appointments. Those concerned about the dangerous rationing in which the IPAB recommendations would play so critical a role would be well advised to urge their Representatives to ensure that the House does so.

More details on the rationing in the Obama Health Care Law are available here.

Even Critics of ObamaCare’s Independent Payment Advisory Board Miss Its Worst Rationing

2011-05-03T12:00:00.000-07:00

Recently there has been a fair amount of press coverage of the effort to repeal a central aspect of the Obama Health Care Law—the unelected 18-member Independent Payment Advisory Board given sweeping powers to limit what people are allowed to spend for health care. Strangely, however, most critics focus only on its impact on Medicare spending, and at least one of its defenders appears ignorant of the authority it will exercise to limit Americans’ use of their own private funds.

Democratic representatives are increasingly joining Republicans in co-sponsoring H.R. 452, a bill to repeal the Independent Payment Advisory Board. As noted in an April 19 New York Times article by Robert Pear,

Democrats and Republicans are joining to oppose one of the most important features of President Obama’s new deficit reduction plan, a powerful independent board that could make sweeping cuts in the growth of Medicare spending. Mr. Obama wants to expand the power of the 15-member [sic] panel, which was created by the new health care law, to rein in Medicare costs. But not only do Republicans and some Democrats oppose increasing the power of the board, they also want to eliminate it altogether. Opponents fear that the panel, known as the Independent Payment Advisory Board, would usurp Congressional spending power over one of the government’s most important and expensive social programs. Under the law, spending cuts recommended by the presidentially appointed panel would take effect automatically unless Congress voted to block or change them. In general, federal courts could not review actions to carry out the board’s recommendations.

In an April 21 piece defending the board, Paul Krugman, one of the paper’s op-ed columnists, wrote, “Before you start yelling about ‘rationing’ and ‘death panels,’ bear in mind that we’re not talking about limits on what health care you’re allowed to buy with your own (or your insurance company’s) money. We’re talking only about what will be paid for with taxpayers’ money.”

Yet Krugman’s statement is flatly wrong.

As documented with specific quotes from the legislation at http://bit.ly/itblQZ, the Obama Health Care Law specifically directs the board to make “recommendations to slow the growth in national health expenditures” for private—not just governmentally funded—dollars devoted to health care. These recommendations are supposed to limit what ordinary citizens and their health insurance coverage can pay for medical treatment to force it below the rate of medical inflation.

To implement these recommendations, the federal Department of Health and Human Services is empowered to impose so-called “quality” and “efficiency” measures on health care providers. Doctors who violate a “quality” standard by prescribing more lifesaving medical treatment than it permits will be disqualified from contracting with any of the health insurance plans that individual Americans, under the Obama Health Care Law, will be mandated to purchase. Few doctors would be able to remain in practice if subjected to that penalty.

This means that treatment that a doctor and patient deem advisable to save that patient’s life or preserve or improve the patient’s health, but which exceeds the standard imposed by the government, will be denied even if the patient is willing and able to pay for it.

“It is truly astounding that this extreme form of rationing has gone almost unremarked even by critics of the Independent Payment Advisory Board,” said National Right to Life Executive Director David N. O’Steen, Ph.D. “That means it is up to grassroots pro-lifers to make both their elected representatives and media outlets aware of the facts, and of how important it is that the Independent Payment Advisory Board be repealed.”

More details on the rationing in the Obama Health Care Law are available at http://bit.ly/161yrt.

OBAMA PROPOSES TO LIMIT AMERICANS’ HEALTH CARE EVEN MORE THAN UNDER OBAMACARE

2011-04-16T05:40:00.000-07:00

In the much ballyhooed debt-reduction “framework” President Obama revealed this week in a speech at George Washington University, the President proposed a dramatically graver limit on what Americans will be allowed to spend for our own healthcare than that which will be imposed by the Obama Health Care Law if it is not repealed before 2015.

As now enacted, the Obama Health Care Law directs an unelected 18-member panel called the “Independent Payment Advisory Board” to limit what Americans are permitted to spend on health care out of their own, nongovernment, funds to less than enough to keep up with medical inflation. However, Obama is now proposing what the White House framework calls “a more ambitious target of holding . . . cost growth . . . to GDP [gross domestic product] plus 0.5 percent beginning in 2018, through strengthening the Independent Payment Advisory Board (IPAB).”

Suppose this proposal had been in effect in 2009, the most recent year for which statistics are available. In 2009, because of the recession the overall real GDP per capita, as reported by the Bureau of Labor and Statistics, actually shrank by 2.1 percent. If you use President Obama’s formula for that period of time, after adding .5% , Americans would have been forced to decrease what we would be allowed to spend to save our lives and preserve our health by 1.6 percent.

In 2009, the actual rate of medical inflation was 2.7%. Had the Obama Health Care Law (ObamaCare) been in effect, Americans would have been able to increase their medical spending, but not enough to keep up with the 2.7% medical inflation rate.

But under the Obama proposal announced this week, what Americans of all ages would be permitted to spend for health care, taking into account the increased cost of medical goods and services, would in real terms be 3.3% less than in the previous year.

While there has been increasingly widespread opposition to the Independent Medical Payment Advisory Board from physician groups, Republicans, and an increasing number of Democrats, the public focus has been on its mission to make cuts in government Medicare spending. Far too little attention has been given to the rationing it would impose through limits on the resources Americans will be allowed to devote to our own health care.

Under the Obama Health Care Law, these limits will be subject to enforcement by the federal Department of Health and Human Services, which will be empowered to impose so-called “quality” and “efficiency” measures on health care providers. Any doctor who dares to provide life-saving treatment in excess of these limits will be disqualified from contracting with any of the insurance plans which, under the individual mandate, Americans will be required to purchase.

The Obama Health Care Law must be repealed, and his still more draconian proposals defeated. If not, as is now true of Canadians who must often come to the United States to obtain life-saving health care, Americans will increasingly have to find locations abroad if we want to be able to use our own money effectively to save their own lives.

SENATE VOTE EXPECTED THIS WEEK

2011-04-13T09:48:00.000-07:00

This week, the Senate is scheduled to vote on H. Con. Res. 35, which would remove funding for the entire Obama health care law that was enacted in 2010. The Obama health care law contains multiple provisions that will, if fully implemented, result in government-imposed rationing of lifesaving medical care.

Among the most dangerous provisions: The Department of Health and Human Services (HHS) will be empowered to impose so-called “quality” and “efficiency” measures on health care providers, based on recommendations by the Independent Payment Advisory Board, which is directed to force private health care spending below the rate of medical inflation. In many cases treatment that a doctor and patient deem needed or advisable to save that patient’s life or preserve or improve the patient’s health but which runs afoul of the imposed standards will be denied, even if the patient wants to pay for it.

Information regarding NRLC’s position on rationing in the Patient Protection and Affordable Care Act may be obtained by visiting here.
The action alert is available here.

PRESIDENT’S SUPPORT FOR STATE “FLEXIBILITY” IN IMPLEMENTING OBAMA HEALTH CARE LAW WON’T AVOID RATIONING

2011-03-04T14:57:00.000-08:00

President Obama made headlines in a speech before the National Governors Association, when he endorsed a Senate bill described as allowing states to seek “waivers” of certain requirements in the Obama Healthcare Law. However, the offer comes with strings, and would do nothing to change the elements of the federal law that will impose rationing of medical treatment if it is not repealed.

There would be no “waiver” from the duty of the Independent Payment Advisory Board to recommend, or the authority of the federal Department of Health and Human Services to impose, so-called “quality” and “efficiency” standards on health care providers designed to limit what Americans will be permitted to spend on life-saving medical care for themselves and their families, forcing it below the rate of medical inflation.

Senate Bill 248, for which the President expressed support, would move from 2017 to 2014 the date when states would be allowed to seek exemptions from certain Obama Health Care Law requirements, such as state insurance exchanges, and the individual and employer mandates. Such a waiver would be granted, however, only if the Administration is convinced that the state’s alternative would 1) make insurance just as "affordable" as under Obamacare (translation: limit what resources people are allowed to devote to their own health care); 2) Cover as many people as Obamacare with health insurance which is as “comprehensive” as Obamacare; and 3) Not increase the federal budget deficit.

Most States are struggling with their health care budgets, and many expect the situation to become worse under the requirements of the Obama health care law. Politico reported, “The move comes as governors, particularly Republican state leaders, say the law is overly burdensome on the already stretched states. Much of the expansive legislation has to be implemented at the state level.”

Were the bill to be enacted, the most likely result would be that proposals threatening the most dangerous rationing would see new life in the states. For example, Vermont officials are pushing hard to secure a waiver to implement their proposed “single-payer” system – under which all Vermont citizens would be forced into a single state government health plan, subject to state budgetary limits, with no opportunity to choose other insurance less likely to ration. Said Senator Bernard Sanders (Socialist-VT), “At a time when 50 million Americans lack health insurance and when the cost of health care continues to soar, it is my strong hope that Vermont will lead the nation in a new direction through a Medicare-for-all, single-payer approach.”

While it is, in theory, possible for states to craft any sort of plan they wish within the requirements, it is difficult to see how the Obama administration might approve ones that did not dramatically curtail what people are allowed to spend for their health care. It is precisely the policy of preventing people from being allowed, if they choose, to use their own funds to keep up with health care inflation that creates the gravest threat of rationing.

The Senate proposal may have a difficult time in the House, where congressional Republicans want states to have much more flexibility. Inside Health Policy wrote that the plan to bump up the waiver dates, “was met with disdain from GOP lawmakers, who said the opt-out criteria are too stringent and called the move a confession that the bill is unworkable in its current form.”

Politico reported, “Mandating many of the same requirements, this plan would treat states as agents of the very law these governors are running away from,” said Michael Steel, spokesman for Speaker John Boehner. “A better approach would be working with reform-minded governors to give states more flexibility . . . . Now that the administration has conceded that Obamacare is unworkable, we hope they will work with us to repeal the law and replace it with common-sense reforms . . . .”

STATE OF THE UNION: HONEYED WORDS HERALD WORSE RATIONING AHEAD

2011-01-26T11:09:00.000-08:00

Suppose a government official announced a plan to limit the automobiles you were allowed to buy, so that only the smallest and cheapest would be available. It is likely most Americans would oppose it. Announce a plan limiting what automobile manufacturers can charge you for cars, however, and it would sound appealing to many people. Yet both proposals would amount to the same plan. When the government imposes limits on what people can choose to spend for a product or service, it means that only those items that producers can afford to provide at or below the government limit will be available. Instead of letting consumers balance cost against benefit, and decide what they can afford to and want to spend their own money on, the government takes that choice away from them.

Now consider what President Obama said in his January 25, 2011 State of the Union speech about health care. He said his health care law “prevents the health insurance industry from exploiting patients.” That certainly sounds good: no one wants patients to be “exploited.” But what does it mean? Obama considers it “exploiting” people when they are given the option of paying more to save the lives of their families, through the purchase of unrationed health insurance, than Obama thinks they should be allowed to choose to pay.

There is an old joke about a man being stopped by a thief who points a gun at him and says, “Your money or your life!” The man replies, “Take my life. I’m saving my money for my old age.”

It’s very foolish to pay less than you can afford for health insurance if that means you and your family will be stuck with a cheap “managed care” plan that will use “utilization review” and limited drug “formularies” to limit the treatment or drugs you may need to save your lives. It’s foolish to look only at the price without also considering the quality you will get for that price.

Americans balance quality and price all the time. Of course we look for the “better deal” that will save us money, but we also keep in mind that sometimes paying bottom dollar for shoddy merchandise is no bargain.

In the State of the Union speech, President Obama said of what people are allowed to spend on health care, “The health insurance law we passed last year will slow these rising costs.” And he called for “further reducing health care costs.”

What he didn’t mention was how the Obama health care law will “slow . . . rising costs.” It will do so in large part by forcing doctors and other health care providers to limit care, through “quality and efficiency” standards imposed on them that will establish one uniform national standard of care for what treatment may – and may not – be offered patients. Beginning in 2015, these “quality and efficiency” standards will be drawn from recommendations of an 18-member Independent Payment Advisory Board that is directed to come up with ways to limit what private citizens choose to pay, using their own funds and private insurance, so that they cannot keep up with the rate of medical inflation. (For details and documentation, see http://www.nrlc.org/HealthCareRationing/Index.html .)

If you’re not allowed to keep up with medical inflation, what do you think will happen to the quantity and quality of the health care you can get? It will go into a steady decline.

Yet Obama is not only pledged to veto any repeal of the health care rationing law– he is now threatening to seek unspecified (so far) measures that will limit the resources Americans are allowed to use to save their own lives still further.

Honeyed words – but words that mean one thing: worse and worse health care rationing ahead.

HOUSE TO VOTE ON OBAMA HEALTHCARE LAW REPEAL NEXT WEEK

2011-01-06T08:44:00.000-08:00

Last night, H.R. 2, to repeal the Obama Healthcare Law, was introduced in the House of Representatives. The bill is scheduled to come up for a vote on Wednesday, January 12th. Repeal would protect Americans from the rationing that would deny or limit life-saving health care. Unless the Obama Healthcare Law is repealed or dramatically altered, the following will occur:

1. Bureaucrats in Washington (the Department of Health and Human Services, based on recommendations by the Independent Payment Advisory Board) will be able to dictate what treatment your doctor or hospital can – and can’t – give you through so-called “quality and efficiency measures.”

2. As Medicare is slashed by billions of dollars, federal bureaucrats will be empowered to deny or limit older Americans' choice of adding their own money, if they wish, to get unrationed insurance.

3. Consumers will be denied the choice of plans offered by insurers who allow their customers to spend what state bureaucrats deem an “excessive or unjustified” amount for their health insurance.

Full documentation of these and other rationing elements can be found here.

NEW & UPDATED RATIONING RESOURCES

2010-11-04T19:02:00.000-07:00

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

2010-10-21T09:42:00.000-07:00

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?

2010-10-08T13:17:00.000-07:00

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

2010-08-19T10:46:00.000-07:00

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

2010-08-12T08:17:00.000-07:00

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

2010-07-02T13:11:00.000-07:00

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

2010-06-14T09:26:00.000-07:00

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

2010-03-25T12:27:00.000-07:00

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

2010-03-21T20:05:00.000-07:00

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

2010-03-15T11:22:00.000-07:00

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

2010-03-14T20:05:00.000-07:00

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

2010-03-10T13:43:00.000-08:00

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

2010-03-03T07:17:00.000-08:00

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

2010-02-25T13:50:00.000-08:00

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

2010-02-22T11:40:00.000-08:00

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

2010-02-22T10:07:00.000-08:00

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

2010-02-17T08:59:00.000-08:00

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

2010-02-09T06:08:00.000-08:00

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

2010-02-02T14:40:00.000-08:00

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

2010-02-01T13:11:00.000-08:00

“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

2010-01-27T15:05:00.000-08:00

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

2010-01-25T16:52:00.000-08:00

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?

2010-01-22T12:53:00.000-08:00

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

2010-01-21T19:45:00.000-08:00

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

2010-01-21T15:53:00.000-08:00

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

2010-01-21T14:08:00.000-08:00

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

2010-01-20T16:13:00.000-08:00

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

2010-01-14T10:26:00.000-08:00

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”

2010-01-11T13:28:00.000-08:00

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

2010-01-05T13:30:00.000-08:00

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.

NEW YORK TIMES STORY SHOWS HOW HEALTH BILL'S EFFORTS TO CUT DOWN WHAT HEALTH CARE PROVIDERS ARE ALLOWED TO DO CAN RESULT IN LIVES LOST

2009-12-23T06:08:00.000-08:00

December 22. The health care bill which the Senate is about to adopt authorizes the Secretary of Health and Human Services to impose "efficiency" measures on doctors and hospitals throughout the country, [1] and it changes the way health care providers treating senior citizens under Medicare will be paid – instead of getting a set amount for each test or procedure, their reimbursement will be changed depending on what "value" the government believes will come from it.

However, an article in this morning’s New York Times challenges the idea that this approach will save money without denying needed and effective lifesaving care.

The Obama Administration’s director of the Office of Management and Budget, Peter Orzag, has attacked the fact that the Ronald Reagan University of California at Los Angelos [UCLA] Medical Center spends more than Rochester, Minnesota's Mayo Clinic. "One of them costs twice as much as the other, and I can tell you that we have no idea what we’re getting in exchange for the extra $25,000 a year at U.C.L.A. Medical. We can no longer afford an overall health care system in which the thought is more is always better, because it’s not."

But the Times article cites recent research showing that "[T]he hospital that spent the most on heart failure patients had one-third fewer deaths after six months of an initial hospital stay."

The Times reports:

Take the case of Salah Putrus, who at age 71 had a long history of heart failure After repeated visits to his local hospital near Burbank, Calif., Mr. Putrus was referred to U.C.L.A. this year to be evaluated for a heart transplant.

Some other medical centers might have considered Mr. Putrus too old for the surgery. But U.C.L.A.’s attitude was "let’s see what we can do for
him," said his physician there, Dr. Tamara Horwich.

Indeed, Mr. Putrus recalled, Dr. Horwich and her colleagues "did every test." They changed his medicines to reduce the amount of water he was retaining. They even removed some teeth that could be a potential source of infection.

His condition improved so much that more than six months later, Mr. Putrus has remained out of the hospital and is no longer considered in active need of a transplant.

The Obama Administration and Congressional architects of the health care bill have relied heavily on a series of studies by researchers at Dartmouth which seem to show that the greater amounts of money spent on health care in some regions of the country don’t produce better outcomes and hence are wasted. This conclusion is the basis for much of the health care bill’s efforts to use the power of the federal government to force doctors and hospitals to spend less per patient.

But, as the Times story points out, "Because Dartmouth’s analysis focuses solely on patients who have died, a case like Mr. Putrus’s would not show up in its data. That is why critics say Dartmouth’s approach takes an overly pessimistic view of medicine: if you consider only the patients who die, there is really no way to know whether it makes sense to spend more on one case than another."
　

Dr.[J. Thomas] Rosenthal [, chief medical officer of the U.C.L.A. Health System,] and his U.C.L.A. colleagues . . . say that unless the distinction can be clearly drawn between excellence and excess in medical care, efforts to cut wasteful spending could be little more than blunt rationing.

"There’s a real risk of doing harm here — real harm," he said.

NRLC WRITES SENATORS LISTING ABORTION, RATIONING ELEMENTS OF SENATE HEALTH BILL

2009-12-23T03:59:00.000-08:00

The National Right to Life Committee has sent a letter to Senators setting forth the abortion and summarizing the rationing elements in the Senate health care restructuring bill, avaliable here.

KEY RATIONING ELEMENTS IN SENATE BILL

2009-12-22T08:33:00.000-08:00

Below is a summary of some of the most important rationing elements that threaten Americans's lives in the Senate's health care restructuring bill headed toward final passage on Christmas Eve:

– The "Independent Payment Advisory Board, " as a result of the Manager’s Amendment, not only dictates cuts in Medicare but also is directed to make recommendations to "slow the growth" in PRIVATE (non-federal) "health expenditures . . . that the Secretary [of Health and Human Services] or other Federal agencies can implement administratively." Section 10320(a)(5), adding Section 1899A (o)(1)(A) of the Social Security Act, p. 188. To the extent these are effective, they will limit the ability of private citizens to spend their own money to protect their own lives, by obtaining health care or health insurance that is not rationed.

– Section 1003 empowers the Commissioners of the state Health Insurance Exchanges to exclude from the exchange plans offered by health insurance issuers whom the they consider to have "excessive or unjustified premium increases." This essentially grants to state bureaucrats the discretion to impose price controls on insurance premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain "private fee-for-service" Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid "managed care" limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 3209 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Provisions in the bill could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or "quality of life." Section 3014, as altered by the Manager’s Amendment, empowers the Secretary of Health and Human Services to impose "efficiency measures," in addition to the "quality measures" already provided for under the Reid Substitute, on health care providers. Much of the professional literature advocates the use of "quality of life" standards that devalue the lives of older people and people with disabilities in such measures. While there are limits on the use of comparative effectiveness research to justify denial of treatment based on quality of life criteria under Section 6301( c) of the bill, the quality and efficiency measures are not made subject to these critically important anti-discrimination protections.

-- Under the "Shared Decisionmaking" provisions in Section 3506 funding is authorized to develop "patient decision aids" that are supposed to help "patients, caregivers or authorized representatives . . . to decide with their health care provider what treatments are best for them based on their treatment options, scientific evidence, circumstances, beliefs, and preferences." Under the bill, the Department of Health and Human Services would contract with an "entity" that is to "develop and identify consensus-based standards to evaluate patient decision aids for preference sensitive care . . . and develop a certification process" for these "patient decision aids." Additional grants and contracts would be awarded to develop such "patient decision aids" which are to include "relative cost of treatment or, where appropriate, palliative care options" and to "educate providers on the use of such materials, including through academic curricula." Money would be awarded to establish "Shared Decisionmaking Resource Centers . . . to provide technical assistance to providers and to develop and disseminate best practices . . ." While there is language stating the materials are to be "balanced" to help patients and their representatives "understand and communicate their beliefs and preferences related to their treatment options," the concern, is the same as that with the promotion of advance care planning: Given the strong views many in the medical community have about poor quality of life and the considerable emphasis on saving costs, these measures will in fact subtly or otherwise "nudge" in the direction of rejecting costly life-saving treatment.

In early 2010, a final bill composed of negotiated compromises between the Senate and House bills will be submitted for a final vote in both chambers. Rationing provisions in the House bill are similar to, and in some cases worse than, those in the Senate bill.

MANAGER’S AMENDMENT INTENSIFIES RATIONING

2009-12-19T19:07:00.000-08:00

The Manager’s Amendment to the Senate health care restructuring bill offered by Majority Leader Harry Reid (D-NV) on December 19 contains two provisions that intensify the rationing already present in the Reid Substitute.

– Taking a significant step closer to the powerful Federal-Reserve-Board-like Federal Health Board envisioned by former Senator Tom Daschle, Obama’s original nominee for health czar, the Manager’s Amendment renames and expands the authority of what the Reid Substitute called the "Independent Medicare Advisory Board." Its new title is the "Independent Payment Advisory Board" [Section 10320(b), p. 189] and it is directed to make recommendations to "slow the growth" in PRIVATE (non-federal) "health expenditures . . . that the Secretary [of Health and Human Services] or other Federal agencies can implement administratively." Section 10320(a)(5), adding Section 1899A (o)(1)(A) of the Social Security Act, p. 188. To the extent these are effective, they will limit the ability of private citizens to spend their own money to protect their own lives, by obtaining health care or health insurance that is not rationed.

– Section 10304 (p. 152) empowers the Secretary of Health and Human Services to impose "efficiency measures," in addition to the "quality measures" already provided for under the Reid Substitute, on health care providers. Much of the professional literature advocates the use of "quality of life" standards that devalue the lives of older people and people with disabilities in such measures. While there are limits on the use of comparative effectiveness research to justify denial of treatment based on quality of life criteria under Section 6301( c) of the Reid Substitute, the quality and efficiency measures are not made subject to these critically important anti-discrimination protections.

A more detailed analysis of these rationing-promoting elements of the Manager’s Amendment follows:

INDEPENDENT PAYMENT ADVISORY BOARD AUTHORITY TO RECOMMEND, AND HHS SECRETARY TO LIMIT, RIGHT TO USE ONE’S OWN MONEY TO SAVE ONE’S OWN LIFE

Under the Reid Substitute’s Section 3403 (pp. 1000- 1053) as modified by the Manager’s Amendment Section 10320 (pp. 180-90), the "Independent Payment Advisory Board" will have sweeping powers.

As originally set forth in the Reid Substitute, the Board was called the "Medicare" Advisory Board, and its mission was focused on cutting Medicare reimbursement rates (see below) – a duty it retains. However, the Manager’s Amendment dramatically expands its authority, so as to work to limit nonfederal health care spending, as well. Starting in 2014, "and at least once every two years thereafter," the Board is to make recommendations "to slow the growth in national health expenditures" other than Federal health care programs – recommendations "that the Secretary or other Federal agencies can implement administratively," as well as recommendations for legislative action. To the extent these are effective, they will limit the ability of private citizens to spend their own money to protect their own lives, by obtaining health care, or health insurance, that is not rationed.

For 2015, unless Medicare spending is projected NOT to keep up with the rate of medical inflation (specifically, unless it is projected to come in at or below a "target" set at the midway point between medical inflation and the average inflation rate for all goods and services , the "Consumer Price Index-Urban"), the Board is to specify how to cut Medicare payments by either the difference from the target or half a percent, whichever is less.

For 2016, the Board is to specify how to cut Medicare by the lesser of the difference from the target for that year or 1 percent, and for 2017 by the lesser of the difference from the target for that year or 1.25 percent.

For 2018 and subsequent years, the target shifts to the growth in Gross Domestic Product (GDP) per capita, and the Board must specify how to cut Medicare payments by the lesser of the difference from that target and 1.5 percent.

Each year, the Secretary of Health and Human Services must implement the Board’s directives unless Congress, within a given deadline, legislates an alternative set of restrictions to accomplish the same result. However, Congress could not reduce the net of the targeted cuts unless three-fifths of both chambers voted to do so. The bill goes so far as to forbid a future Congress from repealing these provisions, except for a one-time opportunity in 2017! Section 3403, adding Social Security Act Section 1899A(d)(3)( C), p. 1020.

How is the Board to bring about these Medicare reductions? On its face the bill instructs the Board not "to ration health care, raise revenues or Medicare beneficiary premiums . . . , increase Medicare beneficiary cost-sharing . . . , or otherwise restrict benefits or modify eligibility criteria." Section 3403, creating Social Security Act Section 1899A(c)(2)(A)(ii) , p. 1004. Predominately, the reductions will have to come in reimbursement rates for health care providers.

This is likely to have either – or, more likely, both– of two rationing effects. First, an increasing number of Medicare providers, being paid further and further below their costs of providing care, would stop accepting new Medicare patients. Second, the Board could change the way reimbursement rates are structured, away from a fee-for-service model toward a "capitated" model, for example, under which practitioners are paid a set annual amount per patient, or toward an "episode" model somewhat similar to the DRG payment system for hospitals, under which a set amount is paid per illness or injury. In either of these cases, the physician or other health care provider would have a strong financial incentive to limit treatment, especially if it is costly. So, in compliance with the statute, the Board itself would not be "rationing" treatment – instead, it would be compelling health care providers to do so.

"EFFICIENCY" MEASURES THAT MAY LEAD TO DISCRIMINATORY DENIAL OF TREATMENT BASED ON DISABILITY, AGE, AND OTHER QUALITY OF LIFE CRITERIA

Section 10304 (p. 152) empowers the Secretary of Health and Human Services to impose "efficiency measures," in addition to the "quality measures" provided for under the Reid Substitute, on health care providers. These measures are to be incorporated "in workforce programs, training curricula, and any other means of dissemination determined appropriate by the Secretary." Section 3014(b) adding Social Security Act Section 1890A(b)(1)(A) (p. 709). They are to be used in the calculation of value-based purchasing from hospitals, and renal dialysis services must abide by them or be penalized. Health care providers, including hospices, ambulatory surgical centers, rehabilitation facilities, home health agencies, physicians and hospitals must provide reports, generally made publicly available, based on these measures. Consequently, they exercise considerable influence on how health care providers practice medicine, and consequently on what treatment patients do – and do not – receive.
In the medical and bioethical literature, quality and efficiency measures are often based on "quality of life" standards that discriminate on the basis of age and disability.

Accordingly, during the period when the group of six Senators were negotiating in an attempt to achieve a bipartisan health care bill, agreement was reached to make anti-discrimination language applicable to the results of comparative effectiveness research. See note 1. This language remains in the Reid Substitute, Section 6301( c), adding Social Security Act Section 1182 ( c), (d) and (e) , pp. 1685-87. However, the quality and efficiency measures are NOT made subject to the same limits on employment of quality of life criteria that are applied to the use of comparative effectiveness research under Section 6301( c) of the Reid Substitute. Consequently, the Secretary is free to formulate such measures in a way that has the effect of rationing treatment on the basis of disability, age, or other "quality of life" criteria, as advocated by many mainstream bioethicists.

NELSON GIVES REID 60TH VOTE; SENATE BILL WILL PASS; MANAGER'S AMENDMENT INTRODUCED

2009-12-19T05:56:00.000-08:00

9am Saturday, December 19, 2009: Senator Ben Nelson (D-NE) has agreed to vote for cloture, which will enable passage of the Senate bill and Senate Majority Leader Harry Reid (D-NV) has introduced the Manager's Amendment in containing all the compromises and provisions he has agreed to in order to secure the 60 votes needed to close debate (cloture) and thus enable passage of the bill. Senator Nelson sought to make a floor statement announcing the reasons for his decision, but Senate Republicans objected, and also insisted on Senate clerks reading the Manager's Amendment.

NRLC's Powell Center for Medical Ethics will analyze and report on the rationing aspects of the 383-page Manager's Amendment, which will take some hours.

THE CONTROVERSIAL HOUSE 1233 ADVANCE PLANNING REAPPEARS IN SENATE

2009-12-18T13:13:00.000-08:00

Sen. Rockefeller (D -Wv.) has filed an amendment that would incorporate the House's controversial 1233 Advance Planning Provisions. Although time is running out for this amendment to be considered on the floor, there is the very real possibility that this dangerous language appears in the "manager's amendment"(this will serve as one large amendment meant to address all outstanding Democratic concerns).

During the summer there was considerable criticism of provisions in the House health care bill that would reimburse Medicare physicians to discuss "advance care planning" with their senior citizen patients, in the express expectation that many would complete advance directives rejecting life-preserving medical treatment and thus save substantial sums of money, as well as other sections promoting such advance directives. More on how these dangerous provisions would work is available here.

In reaction, neither the bill reported in July from the Senate Health, Education, Labor and Pensions Committee nor that reported in October from the Senate Finance Committee contained similar provisions. The Reid bill did incorporate advance planning language (explained here), but did not mirror the dangerous House language.

During the Senate Finance Committee deliberations, Senator Rockefeller spoke out strongly in favor of including House-style advance planning provisions. More recently, a speech from a long-time advocate reveals that his strategy is to do so "at the llth hour."[1]

Presumably, that 11th hour has arrived, and there is a very great possibility that Sen. Rockefeller may be successful in having these Advance Planning provisions inserted into the "manager's amendment."

Author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

The shading in of human particulars is what makes [House Bill section 1233] so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling. [2]

[1] "Senator [Jay] Rockefeller [(D-WV)] . . . has had legislation in place to promote advance care planning . . . [;] his staff has said that he plans to, at the 11th hour, to step in and try to use his influence to put it back into the legislation as an amendment."

Myra Christopher, President, Center for Practical Bioethics, in October 1, 2009 Kansas City Rotary Club speech

[2] www.thedailybeast.com/blogs-and-stories/2009-08-11/obamas-euthanasia-mistake/

RATIONING IN SENATE BILL LIKELY TO INTENSIFY

2009-12-17T17:17:00.000-08:00

An amendment likely to be added to the Senate health care restructuring bill by Majority Leader Harry Reid would empower federal bureaucrats to impose requirements on private insurance plans with the explicit intent of limiting Americans’ right to spend their own money, if they choose, to save their own lives.

On Wednesday, Senators Jay Rockefeller (D-WV), Joseph Lieberman (I-Ct.), and Sheldon Whitehouse (D-RI) introduced an amendment (# 3240) to the Senate health care restructuring bill, which it is widely reported Senate Majority Leader Reid (D-NV) will include in the mammoth “Manager’s Amendment” he will introduce just in advance of the key “cloture” votes designed to end debate preparatory to adopting the bill. Amendment 3240, which the sponsors went to the Senate floor Thursday to advocate, expands the powers of the Independent Medicare Advisory Board (the Board) so that it will cover not only Medicare, but also all the private insurance plans in the “exchanges” the bill establishes for people annually to choose their health insurance.

The Board would be directed to make recommendations that the Secretary of Health and Human Services could then impose that, in the sweeping and vague language of the amendment, would in their opinion promote “integrated care, care coordination, prevention and wellness, and quality and efficiency[,] ... decrease health care spending, and [bring about] other appropriate improvements.” In addition to the elements characteristic of managed care plans that would be required, note the explicit directive to “decrease health care spending.” All of the requirements presumably are aimed at forcing the privately insured to spend less on healthcare, and the list of requirements is open-ended. Plans deemed to spend too much money on health care would be evicted from the exchange.

Instead of allowing Americans themselves to balance cost, benefits, and quality when choosing among competing health plans in the exchanges, their choice would be subject to potentially drastic restrictions. Americans’ choice to spend their own money for health insurance they judge will be less likely to deny treatments and otherwise ration care would be limited.

SENATE VOTE BEFORE CHRISTMAS -- WILL THEY OR WON'T THEY?

2009-12-13T10:30:00.000-08:00

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

According to InsideHealthPolicy.com, at a meeting with "key stakeholders" late last week, senior staff from the majority leadership sketched out a scenario for a vote on Tuesday, December 22 or Wednesday, December 23. The end game would be triggered by the filing of cloture motions -- to cut off debate and proceed to a vote-- on 3 items. One would be the so-called "manager's amendment" which is expected to contain all the compromises necessary to get 60 votes. A second would be on the Reid Substitute, as amended by adoption of the manager's amendment. The third would be on the adoption of the bill itself, a House-passed revenue measure,as replaced by the amended Reid Substitute. Once cloture is voted on each of these, there would still be 30 hours of debate permitted under the Senate rules before it could come to a vote. During that period any "germane", that is to say, related, amendments could be offered, but each could be subject to an undebatable motion to "lay on the table," which has the effect of killing it. (This, for example, is the mechanism that was used to defeat the Nelson-Hatch amendment against abortion funding in the bill.)

This scenario would require that the cloture motions be filed no later than Tuesday or Wednesday of this week. In order for that to occur, Majority Leader Reid would presumably have to be sure of his 60 votes by then, meaning that the Congressional Budget Office score on the "public option" compromise would have be delivered soon, and that it would have to satisfy the relevant Senators or else lead to quick "tweaks" that do.

It has been observed that while this schedule is technically possible, any complication, such as an inability to reach quick agreement yielding 60 votes, would scuttle it. In that case, the vote would have to be deferred until after Christmas. There have been different predictions concerning what the schedule would be in that case. One possibility is that the Senate could take only what has been called a "long lunch break," recessing, for example, only for Christmas Eve through the following weekend, and returning for the week between Christmas and New Year's Day. Others have speculated that there would be so much resistance to such a schedule that if the Senate cannot get to a final vote by Christmas, it might recess until after New Year's Day.

If there is a final Senate vote on the pending health care legislation, the differences between the Senate and House versions would still have to be resolved before a bill could be sent to President Obama for signature. One option that has been discussed would be to send the Senate-passed version directly to the House for a vote, but according to InsideHealthPolicy.com, at the stakeholders' meeting last week the senior Congressional staff suggested that would be impossible -- that there would need to be negotiations among the leaders of the two houses, even if a formal conference committee were not convened.

The White House and its allies have long sought to avoid the health care debate going over into next year, both because they want to get the public's attention focused on planned efforts to address the high unemployment rate and other effects of a poor economy and because it is widely believed that votes to adopt the measure will become more and more difficult to achieve the farther they are pushed into a Congressional election year. December polls have consistently shown majority opposition to the health care bill: by 51 to 41 percent in a December 4/5 Rasmussen poll, by 52 to 38 percent in a December 1/6 Quinnipiac poll, by 61 to 36 percent in a December 2/3 CNN/Opinion Research poll, and by 57 to 34 percent in a December 8/9 Fox News poll.

Nevertheless, the White House and key Democratic leaders remain convinced that failure to pass a health care bill in some form will be more disadvantageous politically than passing even an unpopular one -- in addition to their strong conviction that such legislation is a critically important public policy objective.

“PUBLIC OPTION” COMPROMISE – WILL IT REALLY BREAK THE DEADLOCK?

2009-12-09T10:12:00.000-08:00

Multiple sources this morning are reporting that Senate Democrats, behind closed doors, have reached agreement on several key matters associated with the “public option” debate – getting them closer to the necessary 60 votes. It will be sent for a Congressional Budget Office score today, which is expected to take two days, and the details will not be released until after the score is completed, so the compromise can be “tweaked” if deemed desirable at that time.

One reported agreement has come on a proposal to expand eligibility for Medicare to those 55 or older (currently one must normally be 65).

The American Medical Association (AMA), American Hospital Association, and Federation of American Hospitals (FAH) quickly charged that the proposal would harm the availability of treatment because Medicare reimbursement rates to health care providers are significantly below the cost to them of treating Medicare beneficiaries, something that is possible only because providers “cost shift” by charging privately insured individuals more than it costs to treat them and using the resulting surplus to make up for what they lose when treating Medicare patients.

AMA President Dr. J. James Rohack, noting that “the AMA has longstanding policy opposing the expansion of Medicare given the financial projections for the future. Currently, . . . 28% of Medicare patients looking for a new primary care physician are having trouble finding one.”

The American Hospital Association noted, “Medicare pays hospitals just 91 cents for each dollar of care provided, yet the proposal being considered would allow people 55-65 to enroll in Medicare instead of the insurance exchange . . . “

According to InsideHealthPolicy.com, FAH says that “[t]he buy-in policy would „crowd-out‟ private insurance, would be controlled by CMS [the federal government‟s Centers for Medicare and Medicaid Services] and would only pay Medicare rates. The FAH also suggested that members point to MedPAC, which has “„documented negative and declining Medicare hospital margins for seven years.’”

The agreement also reportedly incorporates a provision from Sen. Jay Rockefeller (D-W.V.) which would require insurers to spend at least 90 percent of premium money on medical care, rather than on administrative costs or profits. This is known as a medical loss ratio.

Although no language from Sen. Rockefeller‟s proposal has emerged, generally speaking, a medical loss ratio is the ratio between what the company actually pays out in claims or medical services and what it has left over to cover sales, marketing, underwriting, taxes, and other administrative expenses and profits.

This would occur at the same time as other provisions in the health care bill impose significant additional administrative expenses on insurers involving reporting on quality and efficiency as well as “managing” care to achieve greater “value” for the funds expended. With a narrower margin for administrative expenses, this restriction could lead to is the inability of insurers to operate in the black and have the effect of driving many of them out of the market.

Despite press reports describing a “breakthrough,” these consequences and the opposition they stir may mean that the end of the Senate‟s battle over health care restructuring may not be as imminent as Majority Leader Senator Harry Reid (D-Nev.) would hope.

“COST CONTAINMENT” AMENDMENT WOULD AUTHORIZE HHS SECRETARY TO REQUIRE HEALTH CARE PROVIDERS TO ABIDE BY “EFFICIENCY” STANDARDS

2009-12-08T16:47:00.000-08:00

A cost-containment amendment drafted by freshman Democratic Senators Mark Udall, Tom Udall, Jeanne Shaheen, Mark Warner, Kay Hagan , Jeff Merkley, Mark Begich, Roland Burris, Ted Kaufman, Michael Bennet, Al Franken, and Paul Kirk (see prior blog posting) would expand the authority the health care restructuring bill would give to require doctors, hospitals, and other health care providers to abide by "quality measures" so that the Secretary could also impose "efficiency" measures.

This seemingly small provision, in section 10007 on page 13 of the amendment, would have dramatic consequences. It would give authority to the federal government to regulate the "efficiency" of health care providers throughout the country. It takes little imagination to recognize that denial of treatment whose cost is deemed – by federal bureaucrats – to exceed its benefit could thus be imposed by administrative ruling on all patients– in short, government-imposed rationing.

NEW DETAILS ON MEDICARE COMMISSION AMENDMENT

2009-12-04T14:55:00.000-08:00

Our Wednesday (December 2) blog post titled “Senate Amendment With More Extreme Rationing Coming?” warned about a potential “cost containment” amendment that might apply the Medicare Commission reimbursement limitations beyond Medicare into the private sector.

More details of this amendment have become available. An internal memo circulated yesterday, although not including amendment language, provides a more specific outline.

It appears that the proposed amendment is intended to authorize the Medicare Commission to make “cost containment” recommendations for private insurance, but (unlike the panel’s recommendations for Medicare, which become law unless Congress acts to override them) these recommendations would require further legislation or administrative regulation to be implemented.

The proposal (being worked on by Senators Mark Udall (CO), Tom Udall (NM), Jeanne Shaheen (NH), Mark Warner (VA), Kay Hagan (NC), Jeff Merkley (OR), Mark Begich (AK), Roland Burris (IL), Ted Kaufman (DE), Michael Bennet (CO), Al Franken (MN), and Paul Kirk (MA)) is described as follows:

“We broaden the scope of the new Independent Medicare Advisory Board to look at total health system spending and make system wide recommendations to assure that we are lowering costs not shifting them. Recommendations for the non Medicare sector would be advisory and non binding.” [emphasis added]

Another aspect of the proposal would increase the authority of the Secretary of Health and Human Services:

“Under this bill, Medicare will reward high quality care, rather than high volume care – with the belief that private payors will follow suit. Medicare will also be able to experiment with promising new models to further lower costs, improve quality and improve patient health. Our amendments would take Medicare further by replacing studies with action, recognizing success stories already underway, modernizing Medicare’s tools to evaluate and implement delivery system reforms that work, and broadening the scope of the Secretary’s authority to put effective cost containment in place.” [emphasis added]

Authorizing the Secretary to determine what is “quality care," without proper protections [1] to prevent discrimination (based on characteristics like age, disability, or terminal illness) against these could be dangerous.

While possible additional threats loom in potential amendments and must be monitored, the Reid Substitute now being debated and amended on the Senate floor already contains significant provisions that, unless corrected, will lead to rationing of lifesaving medical care.

[1] The Reid substitute contains such protection applicable to how Comparative Effectiveness Research may be used, but these protections do not in the current version apply to the already significant authority under the bill of the HHS Secretary to regulate the “quality” of American medical care. See Section 6301(c) [adding Section 1182 (c), (d) and (e)] to the Social Security Act), pp. 1685-87 of the Reid substitute.

Urge Senate Not to Limit Senior Citizens’ Choice to Spend Own Money to Ensure Access to Life-Saving Health Care

2009-12-02T14:13:00.000-08:00

Senior citizens’ ability to use their own money, if they choose, to avoid involuntary denial of medical treatment under Medicare could be severely limited by a provision in the Reid health care bill.

Section 3209 of Senate Majority Leader Harry Reid’s (D-NV) proposed health care bill, which the Senate is now debating and amending, would change current law, which now prevents the federal government from limiting the right of senior citizens voluntarily to add their own money of top of the government Medicare contribution so as to be able to obtain health insurance plans under the "Medicare Advantage" program that are less likely to deny treatment.

Instead, the Reid bill provision would authorize the Secretary of Health and Human Services, in her unlimited discretion, to refuse to allow such plans to be offered to senior citizens.

The provision duplicates the little-noticed section 1175 of the bill passed by the House of Representatives. Neither provision was in bills reported by the committees of either chamber; at the last minute, both were slipped into the versions sent to the floor for action.

The fundamental question is whether seniors will be prevented from using their own money, if they wish, to gain access to insurance that will not ration medical treatment. The significant cuts that the Senate and House health care bills make in Medicare increase the importance of protecting the right of older Americans, if they choose, to use their own money to save their own lives. It is critical to change Section 3209 of the Reid bill to keep this alternative available.

PLEASE CONTACT YOUR SENATORS TODAY !!

To phone your Senators (the approach most likely to be effective) or write them, you can get contact information.

Send an email to your Senators.

Additional information on this issue, and on other provisions in the Senate bill that threaten to ration lifesaving medical treatment.

SENATE AMENDMENT WITH MORE EXTREME RATIONING COMING?

2009-12-02T13:01:00.000-08:00

The Reid Substitute now being debated and amended on the Senate floor contains significant provisions that, unless corrected, will lead to rationing of lifesaving medical care. However, it may be that a still greater danger of rationing looms.

According to both the Washington Post and InsideHealthPolicy.com (a subscription-only service) this morning (December 2, 2009), a group of "centrist" Democratic Senators are fashioning new provisions "to strengthen the bill’s existing cost-containment measures," and are doing so in private consultation with committee and Senate leaders.

Among the most dangerous possibilities reportedly under discussion is a proposal to extend the authority of the Medicare Commission, which in the Reid Substitute has the duty to cut Medicare growth below the rate of medical inflation, to cover nongovernmental health insurance as well. If a government commission is given authority to limit what private insurance plans are able to charge and the treatment they are allowed to provide, this would track proposals to create a "Federal Health Board" first put forth by former Senate Majority Leader Tom Daschle, whose original nomination to be Obama’s Secretary of Health and Human Services was withdrawn because of concerns over back taxes and financial conflicts of interest. It has been reported that despite his lack of a formal position, Daschle has been heavily involved in strategizing with White House and Senate leadership about how to guide the Senate bill to the finish line. An analogue to such a board exists as the National Institute for Clinical Excellence (N.I.C.E.) in Great Britain.

Opponents of rationing are put into a bind by the reports. On the one hand, until an actual "cost-containment" proposal is made public, it is impossible to determine whether it will compel rationing and, if so, mobilize to oppose it. On the other hand, by the time it is made public, it may already have the support of the majority caucus negotiated behind the scenes, making it very difficult to stop.

Check back often . . . .

SENATE DEBATE BEGINS DEBATE ON REID RESTRUCTURING BILL

2009-12-01T07:48:00.000-08:00

Yesterday afternoon, the Senate began debating Major Leader Harry Reid’s Health Care restructuring bill known formally as the “Patient Protection and Affordable Care Act." Two amendments were raised for debate, but not voted on.

The first, offered by Sen. Barbara Mikulski (D-Md), seeks to reinsert a "Women's Preventive Care" provision that was dropped when Senate leadership merged the health and Finance committees' health bills. The other amendment, offered by Sen. John McCain (R-Az.), was a motion to recommit the bill to the Senate Finance Committee in order to remove the massive Medicare cuts that are made in the bill in order to fund the restructuring effort.

Sen. McCain, in defense of his amendment made the following statement:

“Slashing Medicare by nearly $500 billion, one-half a trillion dollars, to create a new Federal health care entitlement is not health care reform. These reductions include $120 billion to the Medicare Advantage program, $150 billion to providers including hospitals, hospice, and nursing homes, and $23 billion in unspecified decreases to be determined by an ‘Independent Medicare Advisory board.’ Simply put, these Medicare cuts will impact seniors' access to quality care. This is a price that Americans should not be asked to pay.

Votes on amendments are expected this afternoon as debate continues.

DEBATE ON REID BILL TO BEGIN AFTER THANKSGIVING

2009-11-23T07:19:00.000-08:00

The Reid Senate health restructuring bill cleared its first hurdle Saturday with a 60-39 cloture vote to begin debate. The party-line vote (Sen. Voinovich, R-Ohio did not vote) allows the full Senate to begin debating the bill. The bill, with its numerous rationing concerns, will be debated after this week's Thanksgiving recess. Please see earlier posts - one by one, for analysis of the numerous rationing concerns.

Price Controls (Medicare)
Price Controls
Shared Decision Making (Advance Care Planning)
The Medicare Commission
Assisted Suicide Funding?

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Price Controls (Medicare)

2009-11-20T11:51:00.000-08:00

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

Price Controls (Medicare)

The Reid bill includes the House provision that would effectively allow the Centers for Medicaid and Medicare Services (CMS) to bar senior citizens from adding their own money, if they choose, to the government contribution 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.

Three alternatives exist.

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 will 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.
What most people do not realize is that, as a result of legislative changes in 1997 and 2003, supported by the National Right to Life Committee, this third alternative is now 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 is not limited by what the government may pay toward it. These plans can set premiums and reimbursement rates for providers without upward limits set by government regulation.

This means that such plans will not be forced to ration treatment, as long as senior citizens choose to pay more for them. This option means that Medicare can operate in such a way that whatever the government provides serves as the floor, not the ceiling, for what health care senior citizens can get. As government contributions sink, private fee-for-service plans can provide a way to escape rationing. For more on the background of this program see here.

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. This means that providers engage in “cost shifting” by using funds they receive in payment for treating 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.

This program faces elimination in the Reid bill. Section 3209 indirectly amends the section in existing law allowing private fee-for-service plans to set their premiums without approval by CMS to say, “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.” [1] This allows CMS to refuse to allow private-fee-for-service plans that charge what CMS regards as premiums that are too high – or, literally, allows CMS to refuse to allow private-fee-for-service plans (or any other MA plans) altogether, for any reason or no reason.

With this dangerous provision in the Reid bill will eliminate the only way that seniors have to escape rationing - taking away their right to spend their own money to save their own lives.

[1] At page 920

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Price Controls

2009-11-20T10:27:00.000-08:00

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

Price Controls

In the Reid bill, a new provision –Section 1003 -- will allow the government to impose price controls.[1] With minor modifications, Section 1003, adopts the House bill provision allowing an exchange to exclude “particular health insurance issuers ... based on a pattern or practice of excessive or unjustified premium increases.” The provision, like in the House bill, will allow an exchange to exclude “particular health insurance issuers ... based on a pattern or practice of excessive or unjustified premium increases”[2]

The ability of Americans to choose to use their own money to obtain insurance policies less likely to ration in the exchanges would be destroyed. Originally, state-based "exchanges" were designed to allow comparison shopping among all insurance plans that provided the basic benefits. Now, however, the exchanges will limit the value of the insurance policies that Americans using the exchanges may purchase.

Not only will the exchanges be allowed to exclude policies when government authorities do not agree with the premiums, but they will be able to look at any increases plans charge, outside the exchange – and remove those insurers from the exchange. This would effectively allow the imposition of price controls, even outside of the exchange, limiting consumers’ access to adequate and unrationed health care. People would be limited in their ability to use their own money 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.

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

[1] Section 1003 creates a new Section 2794 of the Public Health Service Act (pp. 37-40)
[2] Ironically, Section 1311(e)(B)(ii) (p.143) retains the provision, added in the HELP committee, barring an exchange from excluding health plans “through the imposition of premium price controls.” Presumably the two provisions would be construed together to prevent the imposition of specific, explicit premium price control while allowing exclusion of insurers whose premiums the exchange deems to have a “pattern or practice” of being too high.

In addition, Section 1001, creating Section 2718(b) of the Public Health Service Act (pp. 31-32), mandates that group plans spend no more than 20%, and individual plans no more than 25% of their premium revenue on non-claims costs, limiting what can be used for administration, marketing, and profit. (The individual plan percentage may be increased in a state if the HHS Secretary determines that it would “destabilize” the individual market there.)

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Shared Decisionmaking

2009-11-20T10:11:00.001-08:00

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

“Shared Decisionmaking” – Advance Care Planning By Another Name?

The Reid bill does not include provisions paralleling those in the House bill designed to create incentives for “advance care planning.”[1] But, Section 936 [2] provides funding to develop “patient decision aids” that are supposed to help “patients, caregivers or authorized representatives . . . to decide with their health care provider what treatments are best for them based on their treatment options, scientific evidence, circumstances, beliefs, and preferences.”

Under the Reid bill, the Department of Health and Human Services would contract with an “entity” that is to “develop and identify consensus-based standards to evaluate patient decision aids for preference sensitive care . . . and develop a certification process” for these “patient decision aids.” [3] Additional grants and contracts would be awarded to develop such “patient decision aids” which are to include “relative cost of treatment or, where appropriate, palliative care options” and to “educate providers on the use of such materials, including through academic curricula.”[4] Money would be awarded to establish “Shared Decisionmaking Resource Centers . . . to provide technical assistance to providers and to develop and disseminate best practices . . .”[5]

Furthermore, there is also language in this section about ensuring the materials are “balanced” to help patients and their representatives “understand and communicate their beliefs and preferences related to their treatment options.”[6]

The concern, however, is the same as that with the promotion of advance care planning. Given the stong views many in the medical community have about poor quality of life and the considerable emphasis on saving costs, these measures will in fact subtly or otherwise “nudge” in the direction of rejecting costly life-saving treatment.

[1] Note: The Reid bill provides for encouraging minors in foster care to prepare advance directives- in the same manner as the house bill.
[2] Sec. 936(b)(1), p. 1106
[3] At p. 1108
[4] At p. 1110
[5] At p. 1110
[6] At p. 1109

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Medicare Commission

2009-11-19T22:46:00.000-08:00

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

The Medicare Commission

The Reid bill provides for an “Independent Medicare Advisory Board,” given the task of ensuring senior's Medicare meets budget goals (that will tighten each year).

For fiscal years 2015 through 2019, the bill sets a target rate of growth for Medicare midway between medical inflation and average inflation; for subsequent years the target is the growth in Gross Domestic Product per capita plus 1%.[1]

To the extent the Center for Medicare and Medicaid Services project that Medicare growth rates would exceed these targets, the Board would have to act to reduce the gap by specified percentages varying by year. This gap-reducing would likely come at the expense of reduction of Medicare Advantage benefits, and reductions in payments to doctors and so forth.

The Congressional Budget Office notes, “The provision would place a number of limitations on the actions available to the board, including a prohibition against modifying eligibility or benefits, so its recommendations probably would focus on [r]eductions in subsidies for non-Medicare benefits offered by Medicare Advantage plans; and [c]hanges to payment rates or methodologies for services furnished in the fee-for-service sector by providers other than hospitals [but hospitals would be included beginning in 2020], physicians, hospices [but hospices would be included beginning in 2020], and suppliers of durable medical equipment that is offered through competitive bidding.[2]

The recommendations of the Board would automatically go into effect unless Congress, through an expedited procedure, adopted another means resulting in the same reductions; to waive this would require a 3/5 vote. It would also require a 3/5 vote to repeal or amend the provisions of the Reid bill establishing the Board and its duties and authority; in 2017 there would be an expedited procedure essentially guaranteeing a vote on a proposal to repeal the Board, but this vote would require 3/5 of each House to pass.

[1] Section 3403, beginning on page 1000.
[2] Letter from Douglas Elmendorf, Director, Congressional Budget Office to Senate Majority Leader Harry Reid (November 18, 2009), p. 11.

RATIONING IN THE REID BILL - ISSUE BY ISSUE - Assisted Suicide?

2009-11-19T15:59:00.000-08:00

Rationing Issues with the Reid Senate Bill:
With the various concerns related to rationing and euthanasia, we will post a series of concerns - the following analysis being one among several.

Assisted Suicide?

On assisted suicide, the language agreed to unanimously by the Senate Finance Committee that specifically said that federal dollars “shall not pay for or reimburse” any health entity for assisted suicide does NOT appear in the Reid bill. The Reid bill only retains the provision preventing discrimination against those who refuse to participate in assisting suicide.[1]

Why was the prohibition on funding assisted suicide stripped? The argument may be it is “unnecessary” because the Assisted Suicide Funding Restriction Act of 1997 (ASFRA) bars such funding by any “funds appropriated by Congress for the purpose of paying (directly or indirectly) for the provision of health care services ,”[42 U.S.C. Sec. 14402(a)] and it states, “The provisions of this Act supersede other Federal laws (including laws enacted after the date of the enactment of this Act [enacted April 30, 1997]) except to the extent such laws specifically supersede the provisions of this Act.” [2]

However, the provision was adopted unanimously in the Finance committee, emphatically affirming federal policy of no funding for assisted suicide, and removes any danger that some administrator or court might say the broad benefit mandates in the health care bill repealed the ASFRA limits by implication. What possible purpose was served by stripping it out?

[1]Section 1553, p. 364.

[2] 42 U.S.C. Sec. 14408.

FIRST VOTE SATURDAY, NO RECONCILIATION

2009-11-19T10:25:00.000-08:00

From this afternoon's Politico article:

Senate Majority Leader Harry Reid said the first key test vote on his health care bill will be taken Saturday, but he declined to say whether he has 60 senators lined up. "We will find out when the votes are taken," he told reporters at a midday event. Reid also said he would not use a procedural maneuver known as reconciliation to pass the bill - a shift from previous statements when he would say all options are on the table. "I 'm not using reconciliation," he said flatly.

Please check back this afternoon for analyses of the rationing concerns present in the Reid bill.

FIRST VOTE ON SENATE BILL EXPECTED SATURDAY

2009-11-18T15:53:00.000-08:00

According to the Congressional Budget Office's preliminary analysis, the overall cost of the bill is $849 billion. Senate Democrats are currently in a caucus meeting, being briefed on the bill by leadership aides. The bill will be released to the caucus tonight, and made available publicly tomorrow at noon. Majority Leader Harry Reid will likely file for cloture tomorrow on a motion to proceed, which would almost certainly mean a vote on Saturday.

SENATE BILL EXPECTED SHORTLY

2009-11-17T12:25:00.000-08:00

Late word is that the Congressional Budget Office score for the Reid Substitute Senate health care restructuring bill is not yet available, contrary to expectations earlier today that the Senate Majority Leader would reveal its numbers at a luncheon for Democratic members of the Senate today. It may become available Wednesday. The Talking Points Memo D.C. blog reports that "Once the numbers are in and the bill has distributed to Democrats, Reid will likely hold one or two more meetings with the [Democratic] caucus, to answer any questions, and allay any concerns, before holding the first procedural vote--on the motion to proceed to debate--later this week, or possibly this weekend."

A 4pm post by the inside-the-Beltway publication The Hill noted, "A handful of centrist Democrats, including Sens. Ben Nelson (Neb.), Blanche Lincoln (Ark.) and Mary Landrieu (La.), have not committed to support the first test vote on the bill, which would enable the Senate to begin debating and amending the bill."

The Hill quoted Senate Finance Committee Chairman Max Baucus (D-MT) as saying, "I’m talking to [centrists], I’m talking to the liberals. In the past, they’ve not been talking to each other much at all. They’re going to have to start talking to each other to get an agreement. But I’m talking to both. I have today and I will continue doing so."

[Post from earlier today follows:]
It is being widely reported that a CBO score of the highly anticipated Senate bill will be released today. The actual bill, written by Sen. Reid (D-Nev.) and leadership behind closed doors, will likely be made available publically tomorrow. A procedural vote that would start the Senate's consideration could come as soon as Friday, if a motion were filed tomorrow. Reid has said that once he gets the score, he will then unveil the bill to give Senators time to review the bill prior to the first test vote. This vote, which cannot occur until Friday if a bill is filed tomorrow, will require 60 votes. If that happens, debate would then start when members return after Thanksgiving week. Please check back frequently, as analyses of the bill will be posted here as quickly as possible once the bill is made available.

A CLOSER LOOK - MEDICARE COMMISSION AND RATIONING

2009-11-16T15:21:00.001-08:00

In the newly passed House Health Bill (and certainly in the yet-to-be released Senate bill), the bulk of financing Health Reform comes at the expense of the Medicare program for America’s seniors. Specifically, the House intends to glean $571 billion from the Medicare program.

The Health Care legislation intends to accomplish this gleaning of Medicare in an assortment of ways: through cuts to benefits in the Medicare Advantage program, by reducing payments to providers, and notably, by having a Commission make payment decisions. Over the weekend, the Centers for Medicare and Medicaid Services issued a report casting a long shadow of skepticism over the claim that such savings are truly possible.

The report writes, “It is important to note that the estimated savings shown in this memorandum for…Medicare proposals may be unrealistic….While such payment update reductions would provide strong incentive for institutional providers to maximize efficiency, it is doubtful that many could improve their own productivity…Thus, providers for whom Medicare constitutes a substantive portion of their business…might end their participation in the program (possibly jeopardizing access to care for beneficiaries)."

A piece titled “The Rationing Commission” from this weekend’s Wall Street Journal speaking to the commission charged with making these cuts writes,

“As usual, the most dangerous parts of ObamaCare aren't receiving the scrutiny they deserve—and one of the least examined is a new commission to tell Congress how to control health spending….quietly attempting to impose a "global budget" on Medicare, with radical implications for U.S. medicine.
Like most of Europe, the various health bills stipulate that Congress will arbitrarily decide how much to spend on health care for seniors every year—and then invest an unelected board with extraordinary powers to dictate what is covered and how it will be paid for. White House budget director Peter Orszag calls this Medicare commission "critical to our fiscal future" and "one of the most potent reforms."
On that last score, he's right. Prominent health economist Alain Enthoven has likened a global budget to "bombing from 35,000 feet, where you don't see the faces of the people you kill."

The Senate version will (if the Senate Finance bill serves as the basis) have a 15 member commission appointed by the President. The commission would have to meet certain budget targets each year while limiting spending dramatically until 2019, when it would only be permitted to grow at the same rate as Gross Domestic Product, plus one percentage point.

Not too encouragingly, the just-released CMS report also writes, “Except in the case of physician services, we are not aware of any empirical evidence demonstrating the medical community's ability to achieve productivity improvements equal to those of the overall economy.”

Under the Senate Finance version, in order for Congress to overturn the Commission’s dictates would require a 2/3 vote. Consequently, the Commission, without a vote by the people’s representatives in Congress, could, for example, significantly curtail the Private-Fee-for-Service alternative in Medicare Advantage. Under current law, the private fee-for-service alternative is the only one that permits senior citizens, without being subject to limits that could be imposed by the Center for Medicare and Medicaid Services, to add their own money on top of the government contribution in order to get health insurance that is less likely to limit access to medical treatment through managed care techniques or other means. With the significant cuts in Medicare funding that this legislation imposes in order to finance extending subsidies to cover the uninsured, it is particularly important to preserve this option for older Americans to allow them to protect their own life and health with their own money.

We have seen this kind of cost rationing over again, not only from the National Institute for Health and Clinical Excellence, which rations care in England, but also in the U.S. in Washington State’s six year old cost-controlling board.

Again, from Sunday’s Wall Street Journal article “The Rationing Commission”:

“The Washington commission, called the Health Technology Assessment, is manned by 11 bureaucrats, including a chiropractor and a "naturopath" who focuses on alternative, er, remedies like herbs and massage therapy. They consider the clinical effectiveness but above all the cost of medical procedures and technologies. If they decide something isn't worth the money, then Olympia won't cover it for some 750,000 Medicaid patients, public employees and prisoners.
So far, the commission has banned knee arthroscopy for osteoarthritis, discography for chronic back pain, and implantable infusion pumps for pain not related to cancer. This year, it is targeting such frivolous luxuries as knee replacements, spinal cord stimulation, a specialized autism therapy and MRIs of the abdomen, pelvis or breasts for cancer. It will also rule on routine ultrasounds for pregnancy, which have a "high" efficacy but also a "high" cost.
Currently, the commission is pushing through the most restrictive payment policy in the nation for drug-eluting cardiac stents—simply because bare metal stents are cheaper, even as they result in worse outcomes. If a patient is wheeled into the operating room with chest pains in an emergency, doctors will first have to determine if he's covered by a state plan, then the diameter of his blood vessels and his diabetic condition to decide on the appropriate stent. If they don't, Washington will not reimburse them for "inappropriate care."”

With the threat of rationing contained in the structure of the Medicare Commission, coupled with the unrealistic savings that CMS says the House Health Reform bill is attempting to squeeze, those on Medicare will be at real risk under this sort of dangerous short-sighted financing scheme.

REVEALING NEW REPORT EXPOSES DANGERS OF MEDICARE RATIONING

2009-11-15T16:49:00.000-08:00

An article from today’s Washington Post, titled “Report: Bill would reduce senior care” details a new report which warns that Medicare cuts approved by House Health Restructuring bill are not only insufficient to provide needed funding for reform, but also may affect access to health care providers. The full Washington Post article is available here. The CMS report is available here.

The article (in part) explains, “A plan to slash more than $500 billion from future Medicare spending -- one of the biggest sources of funding for President Obama's proposed overhaul of the nation's health-care system -- would sharply reduce benefits for some senior citizens and could jeopardize access to care for millions of others, according to a government evaluation released Saturday.

The report, requested by House Republicans, found that Medicare cuts contained in the health package approved by the House on Nov. 7 are likely to prove so costly to hospitals and nursing homes that they could stop taking Medicare altogether. Congress could intervene to avoid such an outcome, but "so doing would likely result in significantly smaller actual savings" than is currently projected, according to the analysis by the chief actuary for the agency that administers Medicare and Medicaid. That would wipe out a big chunk of the financing for the health-care reform package, which is projected to cost $1.05 trillion over the next decade....

The report offers the clearest and most authoritative assessment to date of the effect that Democratic health reform proposals would have on Medicare and Medicaid, the nation's largest public health programs. It analyzes the House bill, but the Senate is also expected to rely on hundreds of billions of dollars in Medicare cuts to finance the package that Majority Leader Harry M. Reid (D-Nev.) hopes to take to the floor this week.”

------
This report makes clear what many predict - that the insufficient funding of the proposals under consideration will lead to rationing. A substantial part of health care subsidies, under any current proposal, would be paid for by “robbing Peter to pay Paul” – reducing Medicare funding for older people in order to cover the uninsured. Over-promising while under-funding health insurance for the uninsured will almost surely lead to rationing.

RIGHT OF SENIORS TO ADD OWN MONEY TO SAVE OWN LIVES IN DANGER

2009-11-11T12:12:00.000-08:00

NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. One of these concerns relates to the ability of seniors to spend their own moeny to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurancepremiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

ALL EYES ON THE SENATE

2009-11-10T10:10:00.000-08:00

With few legislative work weeks remaining this year, Senate Democrats are up against the clock if they hope to finish health care restructuring this year. Majority Leader Harry Reid (D-Nev.) has indicated that debate will likely begin next week. If this happens, this means that debate would be interrupted by the Thanksgiving week-long recess (it is widely expected that debate will last at least two weeks). Reid hopes to get a Congressional Budget Office (CBO) score on the submitted bill by the end of this week - after responding to a series of questions from CBO raised late Monday.

HOUSE BILL SQUEAKS BY, MAJOR RATIONING CONCERNS REMAIN

2009-11-09T10:59:00.000-08:00

The following is excerpted from a letter (full letter available here) sent Saturday night to members of the House prior to passage of the House Health Restructuring Bill by 220 to 215 -- in a chamber where Democrats hold 258 seats:

....However, as we have advised in previous communications, NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. We reserve the right to score the roll call vote on the conference report, or on any Senate-passed bill, if these concerns are not adequately resolved....

Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities from euthanasia, including the involuntary denial of treatment, food, and fluids necessary to prevent death, as it has been dedicated to protecting unborn children from abortion. H.R. 3962 contains provisions that threaten these lives. (Documentation of and further details concerning the points made below are available at http://www.nrlc.org/HealthCareRationing/HouseLegislation.html.)

For both those eligible to participate in the insurance exchange and older Americans covered by Medicare, H.R. 3962 limits their right to spend their own money to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurance

premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– In addition, Section 1165 effectively ends the ability of unions and employers to offer such plans nationwide – or on anything other than a local basis. Since a given company’s or industry’s retirees are likely to be spread around the country, this greatly undermines, if it does not effectively eliminate, the ability of unions and business to offer to their retirees plans that allow them to add their own money to the government Medicare contribution in order to reduce the prospect of being denied needed treatment.

Provisions in H.R. 3962 could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or “quality of life.”

– Section 2401 creates a “Center for Quality Improvement” which is to promote “best practices” in health care by doing four things: 1) identify existing best practices, 2) develop new ones, 3) evaluate both, and 4) implement them. It contains a provision that states that the Center “shall not develop quality-adjusted life year measures or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.” (Emphasis added.) As far as this goes, it provides a critically important protection against the widespread emphasis in the comparative effectiveness scholarly literature on the use of discriminatory criteria in standards of medical practice, an approach unapologetically employed in Great Britain by that nation’s National Institute for Health and Clinical Excellence (NICE). Unfortunately, this protection applies only to one of the Center’s four missions – the development of “best practices.” It leaves a gaping loophole with regard to the Center’s identification, evaluation, and implementation of existing “best practices.”

– Anything like this anti-discriminatory protective language is missing entirely from Section 1401, which creates a Center for Comparative Effectiveness Research, and from Section 1159's provisions commissioning the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care” which will be implemented automatically unless vetoed by Congress.

Advance care planning provisions could be used to “nudge” patients toward accepting denial of treatment as a means of cost control, and despite apparent prohibitions, could include assisted suicide.

– Section 240 requires health insurers participating in the exchange to provide beneficiaries with the option to establish advance directives and disseminate information about “end-of-life” planning, while Section 1233 reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee recognizes the legal right to execute advance directives and promotes its own version, the “Will to Live,” the author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

For those of us who believe that the absence of universal health care is America’s burning shame, the spectacle of opposition to Obama’s health-care plan is Alice-in-Wonderland bewildering and also enraging but on one point the plan’s critics are absolutely correct. One of the key ideas under end-of-life care is morally revolting.

[Section 1233] . . . offers to pay once every five years for a voluntary, not mandatory, consultation with a doctor, who will not blatantly tell the patient how to end his or her life sooner, but will explain to the patient the set of options available at the end of life, including living wills, palliative care and hospice, life sustaining treatment, and all aspects of advance care planning, including, presumably, the decision to end one’s life.

The shading in of human particulars is what makes this so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling.

What gives weight to Siegel’s concerns is the focus by advocates on the money such “nudging” is expected to save. For example, Holly Prigerson of Boston’s Dana Farber Cancer Institute has been quoted as saying, “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…..”

Moreover, these provisions could lead to federal facilitation of direct killing. While both sections state that they do not authorize “promotion” of “suicide” or “assisted suicide,” providing information about its availability in states where it is legal could well be described as not “promoting” it, only making patients aware of legal options. Section 240 states that it does not require health insurers participating in the exchange to inform beneficiaries about advance directives that include assisted suicide in states where it is legal. However, Section 1233 contains no express limitation on including advance directives that direct assisted suicide as part of the federally funded “advance care planning consultations” with Medicare patients.

What is more, a section in the statutes of both Oregon and Washington State pertaining to what most people recognize as the legalization of assisted suicide explicitly provides that what these state laws authorize “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” In light of this, it is troubling that the final drafters of Sections 240 and 1233 rejected the inclusion of a federal definition of “suicide” and “assisted suicide” based the existing federal Assisted Suicide Funding Restriction Act, opening the possibility that provision of information about the option of obtaining lethal prescriptions in these states would be construed not to constitute the excluded provision of information about “suicide” or “assisted suicide.”

Thank you for your consideration of NRLC’s objections to these provisions of H.R. 3962.However, as we have advised in previous communications, NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. We reserve the right to score the roll call vote on the conference report, or on any Senate-passed bill, if these concerns are not adequately resolved. Moreover, NRLC would certainly score the roll call on any conference report that did not contain the Stupak-Pitts language.

Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities from euthanasia, including the involuntary denial of treatment, food, and fluids necessary to prevent death, as it has been dedicated to protecting unborn children from abortion. H.R. 3962 contains provisions that threaten these lives. (Documentation of and further details concerning the points made below are available at http://www.nrlc.org/HealthCareRationing/HouseLegislation.html.)

For both those eligible to participate in the insurance exchange and older Americans covered by Medicare, H.R. 3962 limits their right to spend their own money to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurance

premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– In addition, Section 1165 effectively ends the ability of unions and employers to offer such plans nationwide – or on anything other than a local basis. Since a given company’s or industry’s retirees are likely to be spread around the country, this greatly undermines, if it does not effectively eliminate, the ability of unions and business to offer to their retirees plans that allow them to add their own money to the government Medicare contribution in order to reduce the prospect of being denied needed treatment.

Provisions in H.R. 3962 could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or “quality of life.”

– Section 2401 creates a “Center for Quality Improvement” which is to promote “best practices” in health care by doing four things: 1) identify existing best practices, 2) develop new ones, 3) evaluate both, and 4) implement them. It contains a provision that states that the Center “shall not develop quality-adjusted life year measures or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.” (Emphasis added.) As far as this goes, it provides a critically important protection against the widespread emphasis in the comparative effectiveness scholarly literature on the use of discriminatory criteria in standards of medical practice, an approach unapologetically employed in Great Britain by that nation’s National Institute for Health and Clinical Excellence (NICE). Unfortunately, this protection applies only to one of the Center’s four missions – the development of “best practices.” It leaves a gaping loophole with regard to the Center’s identification, evaluation, and implementation of existing “best practices.”

– Anything like this anti-discriminatory protective language is missing entirely from Section 1401, which creates a Center for Comparative Effectiveness Research, and from Section 1159's provisions commissioning the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care” which will be implemented automatically unless vetoed by Congress.

Advance care planning provisions could be used to “nudge” patients toward accepting denial of treatment as a means of cost control, and despite apparent prohibitions, could include assisted suicide.

– Section 240 requires health insurers participating in the exchange to provide beneficiaries with the option to establish advance directives and disseminate information about “end-of-life” planning, while Section 1233 reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee recognizes the legal right to execute advance directives and promotes its own version, the “Will to Live,” the author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

For those of us who believe that the absence of universal health care is America’s burning shame, the spectacle of opposition to Obama’s health-care plan is Alice-in-Wonderland bewildering and also enraging but on one point the plan’s critics are absolutely correct. One of the key ideas under end-of-life care is morally revolting.

[Section 1233] . . . offers to pay once every five years for a voluntary, not mandatory, consultation with a doctor, who will not blatantly tell the patient how to end his or her life sooner, but will explain to the patient the set of options available at the end of life, including living wills, palliative care and hospice, life sustaining treatment, and all aspects of advance care planning, including, presumably, the decision to end one’s life.

The shading in of human particulars is what makes this so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling.

What gives weight to Siegel’s concerns is the focus by advocates on the money such “nudging” is expected to save. For example, Holly Prigerson of Boston’s Dana Farber Cancer Institute has been quoted as saying, “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…..”

Moreover, these provisions could lead to federal facilitation of direct killing. While both sections state that they do not authorize “promotion” of “suicide” or “assisted suicide,” providing information about its availability in states where it is legal could well be described as not “promoting” it, only making patients aware of legal options. Section 240 states that it does not require health insurers participating in the exchange to inform beneficiaries about advance directives that include assisted suicide in states where it is legal. However, Section 1233 contains no express limitation on including advance directives that direct assisted suicide as part of the federally funded “advance care planning consultations” with Medicare patients.

What is more, a section in the statutes of both Oregon and Washington State pertaining to what most people recognize as the legalization of assisted suicide explicitly provides that what these state laws authorize “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” In light of this, it is troubling that the final drafters of Sections 240 and 1233 rejected the inclusion of a federal definition of “suicide” and “assisted suicide” based the existing federal Assisted Suicide Funding Restriction Act, opening the possibility that provision of information about the option of obtaining lethal prescriptions in these states would be construed not to constitute the excluded provision of information about “suicide” or “assisted suicide.”

Thank you for your consideration of NRLC’s objections to these provisions of H.R. 3962.However, as we have advised in previous communications, NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. We reserve the right to score the roll call vote on the conference report, or on any Senate-passed bill, if these concerns are not adequately resolved. Moreover, NRLC would certainly score the roll call on any conference report that did not contain the Stupak-Pitts language.

Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities from euthanasia, including the involuntary denial of treatment, food, and fluids necessary to prevent death, as it has been dedicated to protecting unborn children from abortion. H.R. 3962 contains provisions that threaten these lives. (Documentation of and further details concerning the points made below are available at http://www.nrlc.org/HealthCareRationing/HouseLegislation.html.)

For both those eligible to participate in the insurance exchange and older Americans covered by Medicare, H.R. 3962 limits their right to spend their own money to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurance

premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– In addition, Section 1165 effectively ends the ability of unions and employers to offer such plans nationwide – or on anything other than a local basis. Since a given company’s or industry’s retirees are likely to be spread around the country, this greatly undermines, if it does not effectively eliminate, the ability of unions and business to offer to their retirees plans that allow them to add their own money to the government Medicare contribution in order to reduce the prospect of being denied needed treatment.

Provisions in H.R. 3962 could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or “quality of life.”

– Section 2401 creates a “Center for Quality Improvement” which is to promote “best practices” in health care by doing four things: 1) identify existing best practices, 2) develop new ones, 3) evaluate both, and 4) implement them. It contains a provision that states that the Center “shall not develop quality-adjusted life year measures or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.” (Emphasis added.) As far as this goes, it provides a critically important protection against the widespread emphasis in the comparative effectiveness scholarly literature on the use of discriminatory criteria in standards of medical practice, an approach unapologetically employed in Great Britain by that nation’s National Institute for Health and Clinical Excellence (NICE). Unfortunately, this protection applies only to one of the Center’s four missions – the development of “best practices.” It leaves a gaping loophole with regard to the Center’s identification, evaluation, and implementation of existing “best practices.”

– Anything like this anti-discriminatory protective language is missing entirely from Section 1401, which creates a Center for Comparative Effectiveness Research, and from Section 1159's provisions commissioning the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care” which will be implemented automatically unless vetoed by Congress.

Advance care planning provisions could be used to “nudge” patients toward accepting denial of treatment as a means of cost control, and despite apparent prohibitions, could include assisted suicide.

– Section 240 requires health insurers participating in the exchange to provide beneficiaries with the option to establish advance directives and disseminate information about “end-of-life” planning, while Section 1233 reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee recognizes the legal right to execute advance directives and promotes its own version, the “Will to Live,” the author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

For those of us who believe that the absence of universal health care is America’s burning shame, the spectacle of opposition to Obama’s health-care plan is Alice-in-Wonderland bewildering and also enraging but on one point the plan’s critics are absolutely correct. One of the key ideas under end-of-life care is morally revolting.

[Section 1233] . . . offers to pay once every five years for a voluntary, not mandatory, consultation with a doctor, who will not blatantly tell the patient how to end his or her life sooner, but will explain to the patient the set of options available at the end of life, including living wills, palliative care and hospice, life sustaining treatment, and all aspects of advance care planning, including, presumably, the decision to end one’s life.

The shading in of human particulars is what makes this so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling.

What gives weight to Siegel’s concerns is the focus by advocates on the money such “nudging” is expected to save. For example, Holly Prigerson of Boston’s Dana Farber Cancer Institute has been quoted as saying, “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…..”

Moreover, these provisions could lead to federal facilitation of direct killing. While both sections state that they do not authorize “promotion” of “suicide” or “assisted suicide,” providing information about its availability in states where it is legal could well be described as not “promoting” it, only making patients aware of legal options. Section 240 states that it does not require health insurers participating in the exchange to inform beneficiaries about advance directives that include assisted suicide in states where it is legal. However, Section 1233 contains no express limitation on including advance directives that direct assisted suicide as part of the federally funded “advance care planning consultations” with Medicare patients.

What is more, a section in the statutes of both Oregon and Washington State pertaining to what most people recognize as the legalization of assisted suicide explicitly provides that what these state laws authorize “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” In light of this, it is troubling that the final drafters of Sections 240 and 1233 rejected the inclusion of a federal definition of “suicide” and “assisted suicide” based the existing federal Assisted Suicide Funding Restriction Act, opening the possibility that provision of information about the option of obtaining lethal prescriptions in these states would be construed not to constitute the excluded provision of information about “suicide” or “assisted suicide.”

Thank you for your consideration of NRLC’s objections to these provisions of H.R. 3962.However, as we have advised in previous communications, NRLC has very serious concerns about aspects of H.R. 3962 as they relate to involuntary denial of lifesaving medical treatment. We will continue to work to correct provisions that we find objectionable in this area, both in the health care legislation that will come before the Senate, and in any conference committee on health care legislation. We reserve the right to score the roll call vote on the conference report, or on any Senate-passed bill, if these concerns are not adequately resolved. Moreover, NRLC would certainly score the roll call on any conference report that did not contain the Stupak-Pitts language.

Since its inception, the pro-life movement has been as concerned with protecting the lives of older people and people with disabilities from euthanasia, including the involuntary denial of treatment, food, and fluids necessary to prevent death, as it has been dedicated to protecting unborn children from abortion. H.R. 3962 contains provisions that threaten these lives. (Documentation of and further details concerning the points made below are available at http://www.nrlc.org/HealthCareRationing/HouseLegislation.html.)

For both those eligible to participate in the insurance exchange and older Americans covered by Medicare, H.R. 3962 limits their right to spend their own money to save their own lives.

– Section 104, as modified by the Managers’ Amendment, empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers whom the Commissioner considers have “excessive or unjustified premium increases.” This essentially grants to one federal official the discretion to impose price controls on insurance

premiums. While no one wants to pay more for anything, including health care, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– Under current law, Medicare recipients have the legal option, if they choose, of adding their own money on top of the government contribution in order to obtain “private fee-for-service” Medicare Advantage plans that can use the additional premiums to ensure access by paying providers higher rates and to avoid “managed care” limitations on treatments and tests. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like. The consequence is to give the Centers for Medicare and Medicaid Services (CMS) the discretion to deny older Americans the choice of plans whose premiums CMS deems too high. This amounts to the imposition of price controls, thus limiting what older Americans are permitted to spend for health insurance. Again, being prohibited from paying what may be needed to obtain unrationed health insurance amounts to government-imposed health care rationing.

– In addition, Section 1165 effectively ends the ability of unions and employers to offer such plans nationwide – or on anything other than a local basis. Since a given company’s or industry’s retirees are likely to be spread around the country, this greatly undermines, if it does not effectively eliminate, the ability of unions and business to offer to their retirees plans that allow them to add their own money to the government Medicare contribution in order to reduce the prospect of being denied needed treatment.

Provisions in H.R. 3962 could be used to establish standards that would result in the denial of lifesaving medical care based upon degree of disability, age, or “quality of life.”

– Section 2401 creates a “Center for Quality Improvement” which is to promote “best practices” in health care by doing four things: 1) identify existing best practices, 2) develop new ones, 3) evaluate both, and 4) implement them. It contains a provision that states that the Center “shall not develop quality-adjusted life year measures or any other methodologies that can be used to deny benefits to a beneficiary against the beneficiary’s wishes on the basis of the beneficiary’s age, life expectancy, present or predicted disability, or expected quality of life.” (Emphasis added.) As far as this goes, it provides a critically important protection against the widespread emphasis in the comparative effectiveness scholarly literature on the use of discriminatory criteria in standards of medical practice, an approach unapologetically employed in Great Britain by that nation’s National Institute for Health and Clinical Excellence (NICE). Unfortunately, this protection applies only to one of the Center’s four missions – the development of “best practices.” It leaves a gaping loophole with regard to the Center’s identification, evaluation, and implementation of existing “best practices.”

– Anything like this anti-discriminatory protective language is missing entirely from Section 1401, which creates a Center for Comparative Effectiveness Research, and from Section 1159's provisions commissioning the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care” which will be implemented automatically unless vetoed by Congress.

Advance care planning provisions could be used to “nudge” patients toward accepting denial of treatment as a means of cost control, and despite apparent prohibitions, could include assisted suicide.

– Section 240 requires health insurers participating in the exchange to provide beneficiaries with the option to establish advance directives and disseminate information about “end-of-life” planning, while Section 1233 reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee recognizes the legal right to execute advance directives and promotes its own version, the “Will to Live,” the author and blogger Lee Siegel, a strong advocate of universal health care coverage, points out an important danger in these provisions:

For those of us who believe that the absence of universal health care is America’s burning shame, the spectacle of opposition to Obama’s health-care plan is Alice-in-Wonderland bewildering and also enraging but on one point the plan’s critics are absolutely correct. One of the key ideas under end-of-life care is morally revolting.

[Section 1233] . . . offers to pay once every five years for a voluntary, not mandatory, consultation with a doctor, who will not blatantly tell the patient how to end his or her life sooner, but will explain to the patient the set of options available at the end of life, including living wills, palliative care and hospice, life sustaining treatment, and all aspects of advance care planning, including, presumably, the decision to end one’s life.

The shading in of human particulars is what makes this so unsettling. A doctor guided by a panel of experts who have decided that some treatments are futile will, in subtle ways, advance that point of view. Cass Sunstein [who is the Obama Administration’s regulatory czar] calls this “nudging,” which he characterizes as using various types of reinforcement techniques to “nudge” people’s behavior in one direction or another. An elderly or sick person would be especially vulnerable to the sophisticated nudging of an authority figure like a doctor. Bad enough for such people who are lucky enough to be supported by family and friends. But what about the dying person who is all alone in the world and who has only the “consultant” to turn to and rely on? The heartlessness of such a scene is chilling.

What gives weight to Siegel’s concerns is the focus by advocates on the money such “nudging” is expected to save. For example, Holly Prigerson of Boston’s Dana Farber Cancer Institute has been quoted as saying, “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…..”

Moreover, these provisions could lead to federal facilitation of direct killing. While both sections state that they do not authorize “promotion” of “suicide” or “assisted suicide,” providing information about its availability in states where it is legal could well be described as not “promoting” it, only making patients aware of legal options. Section 240 states that it does not require health insurers participating in the exchange to inform beneficiaries about advance directives that include assisted suicide in states where it is legal. However, Section 1233 contains no express limitation on including advance directives that direct assisted suicide as part of the federally funded “advance care planning consultations” with Medicare patients.

What is more, a section in the statutes of both Oregon and Washington State pertaining to what most people recognize as the legalization of assisted suicide explicitly provides that what these state laws authorize “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.” In light of this, it is troubling that the final drafters of Sections 240 and 1233 rejected the inclusion of a federal definition of “suicide” and “assisted suicide” based the existing federal Assisted Suicide Funding Restriction Act, opening the possibility that provision of information about the option of obtaining lethal prescriptions in these states would be construed not to constitute the excluded provision of information about “suicide” or “assisted suicide.”

Thank you for your consideration of NRLC’s objections to these provisions of H.R. 3962.

TENS OF THOUSANDS OF PHYSICIANS OPPOSE DEATH SPIRAL

2009-11-05T09:28:00.000-08:00

Yesterday, the American College of Surgeons alongside 20 additional surgeon groups sent a letter to Senate leaders expressing major concerns with the health care restructuring bill.

Their intent is to put Senate Majority Leader Harry Reid (D-NV) on notice that the surgeons will oppose health care restructuring unless several key provisions in the Finance Committee's bill are removed or revised. One of these provisions that they point to is the "Death Spiral" provision. For other posts see here and for articles see here.

As the letter (available here) explains it, the provision is "reducing payments to physicians who are found to have the highest utilization of resources -- without regard for patient acuity or complexity of the care being provided..."

Under the Senate Finance Committee health care restructuring bill, this "Death Spiral" provision mandates that doctors who authorize treatments for their Medicare patients that wind up in the top 10% of per capita cost for a year will lose 5% of their total Medicare reimbursements for that year.[1] In the game of musical chairs, there is always one chair less than the number of players – so no matter how fast the contestants run, someone will always be the loser when the music stops. Similarly, under the penalty provision, a moving target is created – by definition, there will ALWAYS be a top 10%, no matter how far down the total amount of money spent on Medicare is driven.

It has also been reported that these groups (representing nearly a quarter of a million physicians) intend to bring up their complaints at this weekend's American Medical Association conference.

[1] The provision is (from language available at the Senate Finance Committee website) in "SEC. 3003. IMPROVEMENTS TO THE PHYSICIAN FEEDBACK PROGRAM." Beginning on page 683, the bill reads:
“(b) INCENTIVES FOR AVOIDING EXCESS UTILIZATION.—Section 1848(a) of the Social Security Act (42 U.S.C. 1395w–4(a)), as amended by section 3002(b), is amended by adding at the end the following new paragraph:9) INCENTIVE FOR AVOIDING EXCESS UTILZATION.—(A) IN GENERAL.—With respect to physicians’ services furnished by an applicable physician on or after January 1, 2014, the fee schedule amount for such services furnished by the applicable physician during the year (including the fee schedule amount for purposes of determining a payment based on such amount) shall be 95 percent of the fee schedule amount that would otherwise apply to such services under this subsection (determined after application of paragraphs (3), (5), (7),and (8), but without regard to this paragraph).(B) APPLICABLE PHYSICIAN.—In this paragraph: (i) IN GENERAL.—The term ‘applicable physician’ means a physician which the Secretary determines is at or above the 90th percentile of resource use (or, if applicable, the standard measure of utilization specified under subparagraph (C))with respect to a composite measure per individual, such as the composite measure under the methodology established under subsection (n)(9)(C)(iii).

While these adjustments may reduce the degree to which physicians are disproportionately penalized if they have sicker patients or work in high-cost areas, they do not change the fundamental danger of this provision, which (as explained above) is to create continual pressure on doctors to make ever-increasing reductions in the treatments and tests they order for their patients so as to avoid being in the penalized top 10%. The Congressional Budget Office rates this as taking almost $1 billion from Medicare payments over a period of 6 years. See CBO 10/07/09 letter to Chairman Baucus, Table, page 3 of 9.

HOUSE VOTE ANTICIPATED THIS WEEK

2009-11-04T10:39:00.000-08:00

The House will most likely begin debate on its health restructuring legislation Friday afternoon, allowing few, if any, amendments despite its many rationing dangers. A vote on passage could occur as early as Friday or Saturday but could slip to Monday or Tuesday of next week. A manager's amendment was released late last night. Rules Chair Louise Slaughter (D-NY) told reporters this afternoon that Democrats intend to vote on the legislation on Saturday evening.

On the Senate side, Majority Leader Harry Reid (D-Nev.) has said that he won't rush things in order to meet a deadline. It has been reported that inside sources are indicating that although it is possible to compete a bill by the end of the year, it is more likely slip into 2010.

HOUSE HEALTH BILL CONTAINS DANGEROUS RATIONING PROVISIONS

2009-10-29T10:26:00.000-07:00

This morning, House Speaker Nancy Pelosi (D-Ca.) unveiled the House Health Care Restructuring bill. H.R. 3962 contains many dangerous mechanisms, when coupled with inadequate funding, will inevitably lead to rationing. A manager's amendment to the bill is expected early next week, with the full bill scheduled to be brought up on the floor Friday (Nov. 6). House Leadership has promised that both the bill and the manager's amendment would be available for review 72 hours before a vote.

RATIONING THROUGH INADEQUATE FUNDING
H.R. 3962 contains premium subsidies to help the uninsured obtain health insurance. The problem is that a substantial part of the subsidies are paid for by “robbing Peter to pay Paul” – reducing Medicare funding for older people in order to cover the uninsured. The dangerous consequence is that in a few years, having over-promised and under-funded, the government will be faced with the choice of adding other means of revenue or, far more likely, in some way imposing rationing.

RATIONING THROUGH COMPARATIVE EFFECTIVENESS PROVISIONS
The House bill, as reported, allows comparative effectiveness research (CER) to be used in making coverage decisions, determining reimbursement rates, and in establishing incentive programs in ways that discriminatorily deny or limit health care based on age, present or predicted disability, or expected length of life.

SAVING MONEY THROUGH DANGEROUS END-OF-LIFE PROVISIONS
Section 3962, contains the newly renamed “Voluntary Advance Care Planning Consultation.” The section provides for government funded “advanced care planning” sessions. These could easily be used to subtly or not so subtly pressure patients and older people to reject treatment. Advocates of such measures frequently cite the cost savings if, as they expect, this promotion results in more directives rejecting life-saving treatment. Efforts to push patients and older people to prepare advance directives may in practice become a means of persuading or pressuring them to agree to less treatment as a means of saving money.

Further, Section 240 also requires qualified health benefit offering entities to disseminate information related to “end-of-life” planning to people seeking enrollment in the exchange.

There have been several recent studies showing how advance directives and end of life conversations generally yield cost savings. See here for more description.

RATIONING THROUGH PRICE CONTROLS
The bills give broad authority to the Exchange Commissioner to review bids and any premium increases and to use that review as the basis for the exclusion and expulsion of plans. This will effectively lead to premium price controls.

When the government limits by law what can be charged for health care, it limits what people are allowed to pay for medical treatment. Under a scheme of premium price controls, health insurance companies will ration life-saving medical treatment as they are squeezed more and more tightly each year by declining “real” (adjusted for health care inflation) value of the premiums they take in. 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.”

SENATE VOTE LIKELY ON FUNDING MEDICARE DOCTORS TO TALK WITH SENIOR CITIZENS ABOUT REJECTING TREATMENT

2009-10-27T09:13:00.000-07:00

"Senator [Jay] Rockefeller [(D-WV)] . . . has had legislation in place to promote advance care planning . . . [;] his staff has said that he plans to, at the 11th hour, to step in and try to use his influence to put it back into the legislation as an amendment."

Myra Christopher, President, Center for
Practical Bioethics, in October 1, 2009 Kansas City Rotary Club speech

During the summer there was considerable criticism of provisions in the House health care restructuring bill that would reimburse Medicare physicians to discuss "advance care planning" with their senior citizen patients, in the express expectation that many would complete advance directives rejecting life-preserving medical treatment and thus save substantial sums of money, as well as other sections promoting such advance directives. In reaction, neither the bill reported in July from the Senate Health, Education, Labor and Pensions Committee nor that reported in October from the Senate Finance Committee contained similar provisions.

During the Senate Finance Committee deliberations, however, Senator Rockefeller spoke out strongly for their inclusion, and a speech from a long-time advocate reveals that his strategy is to do so "at the llth hour," presumably meaning toward the end of Senate floor consideration of the merged bill developed for submission to the full Senate by Majority Leader Harry Reid (D-NV).

Christopher, a friend of Health and Human Services Secretary (and former Kansas Governor) Kathleen Sebelius, heads a major "bioethics" think tank that has long pushed for advance directives. Her talk left no doubt of the economic motive for promoting advance care consultations.

"The reality is that 9% to 11% of the entire health care budget is spent on end of life care – nearly 27 to 30% depending on whose data you want to believe of the Medicare budget is spent on end of life care," she said. "Conservatively, conservatively, $6.1 billion every year of Medicare is wasted on what we refer to as futile care . . . ."

REID TO SUBMIT BILL FOR COST ESTIMATE TODAY

2009-10-26T13:28:00.000-07:00

Senate Majority Harry Reid (D-Nv.) said today at a news conference that he will be sending a complete package to the Congressional Budget Office (CBO) later today -- with some policies having multiple options. That score is predicted to take about two weeks to complete. Whether the public will have access to the legislative language before the cost is calculated is unclear. Once the bill comes back from CBO, it will take 60 votes to begin debate - which might be limited to two weeks.

While the Senate bill appears to be nearly complete - though unscored - the House has made less progress. After failing to count enough votes for the public option, Democrats met late on Friday to move toward a solution, reaching no compromise.

PAYMENTS TO MEDICARE PHYSICIANS DELAYED- DECOUPLED FROM REFORM

2009-10-21T21:30:00.000-07:00

Today, Senate sources again confirmed that there might be a merged bill this week. Once a merged bill is revealed, the Congressional Budget Office would likely release a score very quickly. At that point, Democrats hope to keep debate to two weeks.

On a separate but related front, Senate Majority Leader Harry Reid (D-NV) has delayed action on a “multi-year” Medicare physician payment proposal (docfix), with a pledge to work on it after action on broader health reform. The pledge followed a failed vote to end debate. No Repblican voted for, and 12 Democrats opposed the measure- largely due to the failure to provide a way of paying for the exensive measure. Prior to the vote on Tuesday, a reporter asked Sen. Majority leader Reid (D-NV) whether Democrats could "still say health-care reform is paid for if you pass a quarter-trillion-dollar doc fix and don't pay for it." And when inadequate financing is present, coupled with the mechanisms* present in the Senate bill, rationing becomes a very real threat.

*The Finance committee product contains: 1. cuts to Medicare, 2. the dangerous "Death Spiral" provision, 3. a grant of nearly unlimited power to the Medicare Commission to reduce Medicare payments to fit with the limits on growth, and 4. verbal promises to consider price controls.
The HELP committee product's rationing concerns can be found here.

NO RUMORS -- REAL RATIONING

2009-10-20T13:37:00.000-07:00

Recent and intensifying reports of systematic rationing in the United Kingdom have gone largely unreported. As Sen. Reid, along with the White House and leadership, edges closer towards a final bill, these very real rationing dangers ought to be brought out into the open.

In September, a group of experts who care for the terminally ill wrote a letter to the United Kingdom’s The Daily Telegraph, expressing deep concern over wide-spread treatment of those deemed to be dying.

The letter in part states,

“The Government is rolling out a new treatment pattern of palliative care into hospitals, nursing and residential homes. It is based on experience in a Liverpool hospice. If you tick all the right boxes in the Liverpool Care Pathway, the inevitable outcome of the consequent treatment is death. As a result, a nationwide wave of discontent is building up, as family and friends witness the denial of fluids and food to patients. Syringe drivers are being used to give continuous terminal sedation, without regard to the fact that the diagnosis could be wrong.”

The letter from the doctors came a mere week after a report by the UK Patients Association estimated that up to one million patients had received poor or cruel care on the NHS.

The Liverpool Care Pathway to which the doctors refer was initially developed by a Liverpool hospice, and was designed to reduce cancer patient suffering in their final hours (but now includes a vastly larger group). In 2004, the National Institute for Health and Clinical Excellence (Nice), recommended widespread use. Today, more than 300 hospitals, 130 hospices and 560 care homes in England currently use the system.

Author and lawyer Wesley J. Smith writes,

“The Pathway’s guidelines instruct doctors to put patients thought to be near death into a drug-induced coma, after which all food and fluids, as well as medical treatments such as antibiotics, are withdrawn until death. The problem with such a protocol is that no matter how well motivated — and undoubtedly, the Pathway’s creators had good intentions — follow-the-dots medical protocols often lead to patients’ being treated as members of a category rather than as individuals. At that point, nuance often goes out the door, and mistakes, neglect, and even oppression frequently follow.”

The personal stories filtering through are quite unbelievable.

Nine days ago, the Times of London reported on the case of Hazel Fenton, identified by doctors as terminally ill and left to starve to death – now recovered for nine months (needing only antibiotics and food/fluids) after her daughter intervened.

Seven days ago, The Daily Mail reported, “A grandfather who beat cancer was wrongly told the disease had returned and left to die at a hospice which pioneered a controversial 'death pathway.' Doctors said there was nothing more they could do for 76-year- old Jack Jones, and his family claim he was denied food, water, and medication except painkillers. He died within two weeks. But tests after his death found that his cancer had not come back and he was in fact suffering from pneumonia brought on by a chest infection."

Here is evidence of how Government promulgated rules are leading to outright denials of treatment. We have yet to see a health care restructuring proposal that will provide the kind of long-term sustainable financing needed to prevent this very thing from happening in the U.S. - a fact that ought to be a deep cause of concern.

For more on this and further accounts see articles by Wesley J. Smith here, and from Real Clear Politics here.

POSSIBLE MERGED BILL THIS WEEK

2009-10-19T15:26:00.000-07:00

As the Senate Finance bill and Health, Education, Labor and Pensions bill continue to me merged behind closed doors, legislative language of the Senate Finance version is finally released. Several sources have said that a final bill could be expected as early as Thursday or Friday of this week.

Along with the final Senate Finance legislative language, Sen. Rockefeller (D-WV) released an accompanying statement adding, "I am extremely concerned that the Committee mark does nothing to inform consumers of their treatment options at the end of life or help them document their individual wishes for care." We can look for Sen. Rockefeller to introduce amendments once the bill moves to the Senate floor. It is nearly certain that the merged House (for more see here) will contain provisions relating to end-of-life counseling.

MEDICAL JOURNAL STUDIES HIGHLIGHT DANGER OF "ADVANCE CARE PLANNING" AND "COMPARATIVE EFFECTIVENESS" HEALTH BILL PROVISIONS

2009-10-16T20:41:00.000-07:00

Two New England Journal of Medicine (NEJM) studies published yesterday show how medical conclusions based on the perceived quality of life of certain groups or of older people can pose risks in the areas of Advance Care Planning and “comparative effectiveness” research. Central to the Health Care Restructuring bills is the concept that cost cutting measures will be sufficient to make up for financing shortfalls. One of these measures is the promotion of advance directives. There have been several recent studies showing how advance directives and end of life conversations generally yield cost savings. For more see here.

The NEJM studies focus on two conditions in particular – Kidney Dialysis and Dementia.

One of the studies, entitled “The Clinical Course of Advanced Dementia,” concluded that, “Distressing symptoms and burdensome interventions are also common among such patients [patients with high 6-month mortality rates]. Patients with health care proxies who have an understanding of the prognosis and clinical course are likely to receive less aggressive care near the end of life.”

The study states that in the last three months of life 49.7% of those in the study underwent at least one “burdensome intervention.” Those included hospitalization, visits to the ER, parenteral therapy or tube feeding. The patients were mainly treated for pneumonia, fever, and eating problems -- complications frequently experienced by patients with advanced dementia.

As the study found, these “burdensome interventions” were less likely to be given to those who had a surrogate decisionmaker. In those cases, the study fails to highlight that the patients were not dying from the underlying dementia, but from starvation that a feeding tube could have avoided or an infection that ‘parenteral therapy’ (also known as an injection or infusion – probably of an antibiotic) could have treated. The phrase “burdensome interventions” is a conclusion based on a very subjective determination. It employs a value judgment that a person with dementia lacks value or an adequate quality of life. An antibiotic for a fever or a feeding tube would certainly not be considered “ burdensome” for –for example - a young mother with an injury.

The study suggests that instead of life-preserving interventions more attention should be given to treating distressing symptoms such as dyspnea (a breathing problem characterized by unpleasant or uncomfortable respiratory sensations), pain, pressure ulcers, aspiration, and agitation. The study implies that more emphasis ought to be on keeping those near death comfortable – an admirable goal – but not one that ought to be coupled with neglect of treatable conditions like fevers and dehydration.

This sort of study, and others like it that are becoming more prevalent, will pave the way for two different dangerous roads. The first is in the area of advance planning.

The study shows that patients with proxy decisionmakers tend to die from non-treatment (and save money). When a person being counseled to make advance decisions about accepting or rejecting treatments (for oneself or for a person for whom he or she holds a health care power of attorney) is encouraged to think of these sort of life-preserving treatments as“burdensome” for those with dementia, then the counseled individual will no doubt be more likely to authorize denial of treatment that will cause death– perhaps unknowingly – from fairly commonplace non-treatment.

The other dangerous road is that of comparative effectiveness research. Without proper protections, studies such as this one could be cited as comparative effectiveness research and be used to make coverage decisions in ways that treat the life of a person with dementia as having less value This could result in outright denial of medical coverage for many treatments that are simple and necessary to preserve the lives of patients with dementia.

The other study, entitled, “Functional Status of Elderly Adults before and After Initiation of Dialysis,” looked at nursing home patients who received dialysis. It did not include a comparison group of patients who did not receive dialysis, so a true comparison rate of extra life gained by dialysis is unknown. The study shows that despite dialysis, there was “substantial and sustained decline in functional status.” The danger is that such studies may be used to deny coverage (or encourage patients subjected to “advance care planning” to reject) dialysis because it does not “restore health or functional status” despite the fact that it likely prevents a hastened death.

TIMETABLE TIGHTENING

2009-10-15T09:36:00.000-07:00

With all five committees who have jurisdiction over healthcare having completed work, the task is now for the House and the Senate to each create a merged bill. Senate Majority Leader Harry Reid (D-Nv.) has stated that the Senate bill could be on the floor on October 26. House Majority Leader Steny Hoyer (D-Md.) expects his bill shortly after, saying, “I think it would be very doubtful that we would get a vote prior to the first week of November.”

What ends up in the respective bills is unclear as these negotiations take place behind closed-doors. However, there have been indications that House leaders are warming up to the idea of taxing high-cost insurance plans- the one source of funding that would keep pace with the rising resources devoted to health care . For more on this see here.

ALL COMMITTEES HAVE REPORTED BILLS WITH RATIONING CONCERNS - NEGOTIATIONS NOW MOVE BEHIND CLOSED DOORS

2009-10-13T11:54:00.000-07:00

Health care restructuring cleared another hurdle when it was voted favorably out of the Senate Finance Committee 14-9 this afternoon. Republican Olympia Snowe (ME) along with every Democrat, voted to move the bill forward. Sen. Snowe, while maintaining that “My vote today is my vote today. It does not predict my vote tomorrow,” ultimately concluded that inaction was riskier than the “imperfect bill.” Several Republican senators continued to warn of the dangers of rationing – with Senator Roberts(KS) in particular noting that the bill contains “robust tools to ration your healthcare.” A good deal of time was spent in committee today by Democrats criticizing an industry-commissioned report by PriceWaterhouseCoopers that found health insurance premiums would increase faster under the Senate's bill than they would without it. Also, Sen. Rockefeller (D-WV) again lamented the lack of inclusion of end-of-life planning. The Senator will likely offer a related amendment on the Senate floor. For more on similar end-of-life planning provisions in the house bill see here.

The Finance committee product contains 1. cuts to Medicare, 2. the dangerous "Death Spiral" provision, 3. a grant of nearly unlimited power to the Medicare Commission to reduce Medicare payments to fit with the limits on growth, and 4. verbal promises to consider price controls.

Negotiations will now shift into a closed-door setting. After today’s vote, Sen. Baucus (D-MT), majority leader Reid (D-NV), and Sen. Dodd (D-CT), along with and a handful of top White House officials, will meet to meld the Finance bill alternative bill that Dodd led through the HELP committee in July.

Leaders in the House have been meeting over the past months in an effort to merge three bills passed out of committees and to bring down projected costs. House Speaker Pelosi (D-CA), has said she expects a final version for consideration by the full chamber soon, although she has not provided a specific timetable. While attempting to shave their $1.2 trillion plan down to $900 billion, the final bill is likely to reduce subsidies, place more people into state Medicaid programs, and employ several of the taxes raised in the Senate Finance Committee. However, House leaders have rejected the Senate Finance plan’s tax on high-value plans – the one financing mechanism that would keep pace with the rising resources devoted to health care would be the 40% levy on health insurance premiums. For more on this see here. House leaders are instead relying on a modified version of their original plan to impose a surcharge on higher income Americans.

It has also been reported today by the Washington Post that in order to come in under $900 billion dollars, House Democrats will cut out a provision that ensures that doctors receive their Medicare payment update formula. This would then be addressed in an expensive stand-alone bill. In the Senate version, the billions required to stop those same scheduled cuts in Medicare payments to physicians is only addressed for one year (then docs take a drastic 25% pay cut if no other action is taken). Not addressing this very integral and expensive aspect of healthcare in these comprehensive bills can give the incorrect appearance that the bills are able to be paid for - when that is not the case. And when inadequate financing is present, coupled with the dangerous mechanisms, rationing becomes a very real threat.

How soon floor action will occur in either chamber is unclear- though leadership insists that they mean to act soon.

SENATE PANEL TO VOTE TUESDAY

2009-10-08T14:56:00.000-07:00

Senate Majority Leader Harry Reid (D-NV) announced this afternoon that the Senate Finance Committee will vote next Tuesday on its health restructuring bill. The Congressional Budget Office (CBO) released a preliminary cost estimate of $829 billion over the next 10 years. The CBO did warn that there could be changes once the final legislative text emerges. The $829 billion dollar price tag comes substantially at the expense of the senior’s Medicare program. For more see here.

After the panel votes, Reid will merge the Finance bill with the one passed by the Health, Education, Labor, and Pensions panel in July. North Dakota Sen. Kent Conrad (D-ND) on the finance committee told reporters the legislative process has a long way to go, noting, “It will be months before this is concluded.”

The Finance bill calls for new taxes on more expensive insurance plans and fees on industries including drug-makers and medical device manufacturers. The House versions employ surtaxes based on income.

WALL STREET JOURNAL WARNS 5% PENALTY WILL HURT LIFE-SAVING SPECIALISTS MOST

2009-10-06T05:54:00.000-07:00

October 6. The Wall Street Journal has published a warning that the health care restructuring bill is "trying to engineer a 'cheaper' system so that government can afford to buy health care for all--even if the price is fewer and less innovative ways of extending and improving lives."

The paper takes note of the "provision in the Baucus bill that would punish any physician whose 'resource use' is considered too high. Beginning in 2015, Medicare would rank doctors against their peers based on how much they cost the program-- and then automatically cut all payments by 5% to anyone who falls into the 90th percentile or above. ... Since there will always be a missing chair when the music stops, every year one of 10 physicians will be punished if he orders too many tests, performs too many procedures, or prescribes too many drugs--whether or not the treatments result in better patient outcomes. The 5% fine is substantial given that Medicare's price controls already pay only 83 cents on the private dollar."

The paper points out that this rule will impact specialists, like oncologists and cardiologists, and will operate in conjunction with changes in payment methodology that will impose severe cuts in treatment for heart disease and cancer -- because they are among the most expensive ailments to treat.

Also see pieces in the Washington Times: http://www.washingtontimes.com/news/2009/oct/05/the-haunting-of-medicare-clawbacks/ and http://washingtontimes.com/news/2009/sep/25/death-panels-by-proxy/
and a piece by syndicated columnist Nat Hentoff http://www.wnd.com/index.php?fa=PAGE.view&pageId=110710

SENATE FINANCE COMMITTEE WRAPS UP LATE THURSDAY

2009-10-02T07:52:00.001-07:00

The Senate finance committee wrapped up late Thursday night. Voting on over one-hundred amendments, the Congressional Budget Office will now be charged with the task of giving the bill a final score on its cost. Once a preliminary score is given (and so long as it does not go over the anticipated amount- which would mean further amending next week), the Finance committee will meet and have a final vote. The bill is expected to pass.

At that point, the Help, Education, Labor and Pensions Bill must be merged with what is voted out of the Finance Committee and then this merged bill will come before the full Senate for more amendments, debate, and a final vote.

Sen. Rockefeller (D-WV) had submitted several Advance Care Planning amendments, but none were brought up in the committee. These dangerous amendments can still be offered when the full Senate begins debate on a merged bill.

PRICE CONTROLS REAR THEIR UGLY HEAD

2009-10-01T20:51:00.000-07:00

October 1, 2009. The ability of Americans to choose to use their own money to obtain insurance policies less likely to ration in the exchanges to be set up by the health restructuring bill may be in danger. Originally, state-based "exchanges" were designed to allow comparison shopping among all insurance plans that provided the basic benefits. Now, however, a proposal is afoot to authorize states to limit the value of the insurance policies all Americans using the exchanges may purchase, by allowing them to exclude policies government authorities believe "do not offer good value and cost-effectiveness." This would effectively allow the imposition of price controls, limiting consumers’ access to adequate and unrationed health care. People would be limited in their ability to use their own money to save their own lives.

As the Senate Finance Committee consideration of amendments to its health care restructuring bill drew to a close this evening, Senators Jay Rockefeller (D-WV) and Kent Conrad (D-ND) got a commitment from Chairman Max Baucus (D-MT) to attempt to add such a to the bill, as it is melded with the version reported from the Senate Health, Education, Labor and Pensions Committee in July before the product goes to the Senate floor to a vote.

In a similar vein, Senator Maria Cantwell's (D-WA) amendment narrowly passsed earlier in the day. Agreed to by a vote of 12 -11 (with Sen. Blanche Lincoln (D-AR) joining Republicans), Sen. Cantwell's amendment allows states to establish insurance plans and negotiate rates for people earning between 133 to 200 percent of the federal poverty level- removing them from the exchange.

Sen. Cantwell claimed that 75 percent of the uninsured fall into that range. However, the concern is that "government negotiation" is not really negotiation, but in practice, has been shown to be price control. When there is only one buyer, they can set a price much lower than in a competitive market. Many of the details of the Cantwell Amendment are unclear, but it is one example of how people's access to unrationed care will be limited under this bill.

MEDICARE DOCTORS, PATIENTS AFFECTED BY HEALTH BILL PROVISION PENALIZING 1 IN 10 DOCTORS ANNUALLY

2009-10-01T10:33:00.000-07:00

[Revised October 23, 2009]

Under the Senate Finance Committee health care restructuring bill, doctors who authorize treatments for their Medicare patients that wind up in the top 10% of per capita cost for a year will lose 5% of their total Medicare reimbursements for that year.[1] In the game of musical chairs, there is always one chair less than the number of players – so no matter how fast the contestants run, someone will always be the loser when the music stops. Similarly, under the penalty provision, a moving target is created – by definition, there will ALWAYS be a top 10%, no matter how far down the total amount of money spent on Medicare is driven.

As one editorial puts it:

Forget results. This provision makes no account for the results of care, its quality or even its efficiency. It just says that if a doctor authorizes expensive care, no matter how successfully, the government will punish him by scrimping on what already is a low reimbursement rate for treating Medicare patients. The incentive, therefore, is for the doctor always to provide less care for his patients for fear of having his payments docked. And because no doctor will know who falls in the top 10 percent until year's end, or what total average costs will break the 10 percent threshold, the pressure will be intense to withhold care, and withhold care again, and then withhold it some more. Or at least to prescribe cheaper care, no matter how much less effective, in order to avoid the penalties.[2]

In committee debate, Senator Kent Conrad (D-ND) said,

"As I try to put my feet in the shoes of a doctor, I don’t know how you separate out overutilization that is really overutilization. There is no way of knowing when you go through the year, what you are going to do at the end of the year."

He expressed concern there could be unintended consequences, adding that the penalty “leaves me cold.”

In a September 21, 2009 letter to Chairman Max Baucus (D-MT), the American Medical Association attacked its wisdom, noting, "Private and state insurance programs have experienced serious problems with the accuracy and validity of episode grouper methodologies to ‘profile’ physicians."

Civil libertarian columnist Nat Hentoff has written,

"Medicare doctors will not be the only losers. As the doctors struggle to keep abreast of the continually falling limit of the money they can authorize for their contingent of patients, consider what those patients will lose in the quality of their treatment."[3]

Senator Jon Kyl (R-Az) is expected to offer an amendment after the bill comes to the Senate floor (presently expected during November 2009) to strike the penalty provision, similar to one he unsuccessfully offered in the Senate Finance Committee, which was endorsed by the Alliance of Specialty Medicine. The Alliance is a coalition of 11 national medical specialty societies representing more than 200,000 physicians.

NOTES:
[1] The provision is (from language available at the Senate Finance Committee website) in "SEC. 3003. IMPROVEMENTS TO THE PHYSICIAN FEEDBACK PROGRAM." Beginning on page 683, the bill reads:

“(b) INCENTIVES FOR AVOIDING EXCESS UTILIZATION.—Section 1848(a) of the Social Security Act (42 U.S.C. 1395w–4(a)), as amended by section 3002(b), is
amended by adding at the end the following new paragraph:

9) INCENTIVE FOR AVOIDING EXCESS UTILZATION.—
(A) IN GENERAL.—With respect to physicians’ services furnished by an applicable physician on or after January 1, 2014, the fee schedule amount for such services furnished by the applicable physician during the year (including the fee schedule amount for purposes of determining a payment based on such amount) shall be 95 percent of the fee schedule amount that would otherwise apply to such services under this subsection (determined after application of paragraphs (3), (5), (7),
and (8), but without regard to this paragraph).

(B) APPLICABLE PHYSICIAN.—In this paragraph: (i) IN GENERAL.—The term ‘applicable physician’ means a physician which the Secretary determines is at or above the 90th percentile of resource use (or, if applicable, the standard measure
of utilization specified under subparagraph (C))with respect to a composite measure per individual, such as the composite measure under the methodology established under subsection (n)(9)(C)(iii).

While these adjustments may reduce the degree to which physicians are disproportionately penalized if they have sicker patients or work in high-cost areas, they do not change the fundamental danger of this provision, which (as explained above) is to create continual pressure on doctors to make ever-increasing reductions in the treatments and tests they order for their
patients so as to avoid being in the penalized top 10%. The Congressional Budget Office rates this as taking almost $1 billion from Medicare payments over a period of 6 years. See CBO 10/07/09 letter to Chairman Baucus, Table, page 3 of 9.

[2] Washington Times, September 25.

[3] Nat Hentoff column.

SENATE FINANCE COMMITTEE AFFIRMS DEATH SPIRAL IN PARTY LINE VOTE; CONRAD SUGGESTS HE MAY VOTE AGAINST IT ON FLOOR WITH DIFFERENT OFFSET

2009-09-30T19:56:00.000-07:00

September 30. An amendment proposed by Senator Jon Kyl (R-AZ) to get rid of a 5% penalty for Medicare doctors who order treatments and tests for their patients that wind up in the 10% most expensive per patient over a year was defeated 13-10 in the Senate Finance Committee this evening, with all committee Republicans voting to end the penalty and all committee Democrats voting to keep it.

Before the vote, however, Senator Kent Conrad (D-ND), said, "We’d be well advised ... to drop the penalty. I want to commit to working with Senator Kyl to find [another] offset before we go to the floor." This was in line with Conrad’s remarks on September 29 when Senator Kyl first brought up the amendment and temporarily withdrew it in order try to work out an alternative way of paying for the elimination of the penalty, which is scored by the Congressional Budget Office as cutting Medicare payments by $1 billion over ten years. The senators and their staffs were unable to agree on such an alternative during the intervening 24 hours, but, as Senator Conrad’s remarks indicate, will continue to try to agree on one so as to be able to support a jointly acceptable amendment by the time the measure goes before the full Senate for a vote.

Of course, even if Senators Conrad and Kyl agree, that is no guarantee that an amendment they both support will in fact be adopted when offered on the Senate floor. "Those concerned with the grave danger that Medicare doctors will be induced to ration more and more each year by this ‘musical chair’ penalty need to redouble their efforts to convince their Senators in the short weeks before the Senate votes on health care restructuring," said Burke J. Balch, director of National Right to Life’s Powell Center for Medical Ethics.

“DEATH SPIRAL” IN TROUBLE? NEGOTIATIONS BEHIND THE SCENES CONTEMPLATED

2009-09-29T19:37:00.000-07:00

September 29. This evening in the Senate Finance Committee, Senator Jon Kyl (R-AZ) offered his amendment to strike from the health care restructuring bill a provision imposing a 5 % penalty on one in ten Medicare physicians yearly, those whose costs per senior citizen wind up in the top 10%. However, he agreed temporarily to withdraw it at the request of Senator Kent Conrad (D - ND), who spoke out strongly against the penalty provision but sought modifications in the offset originally proposed by Senator Kyl. The temporary withdrawal raises the prospect that an agreed method might be worked out to strike the penalty provision.

The National Right to Life Committee strongly supports the Kyl Amendment and opposes the penalty provision. Senator Kyl quoted Executive Director David N. O'Steen, Ph.D., "This provision creates a cruel death spiral. By financially penalizing Medicare providers, the Baucus bill sets up the cruelest and most effective way to ensure that doctors are forced to ration care for their senior citizen patients. Instead of bureaucrats directly specifying the treatment denials that will mean death and poorer health care for older people, it compels individual doctors to do the dirty work."

Under the bill as it stands, any physician treating Medicare patients who ordered treatments and tests whose cost turned out to be in the highest ten percent per capita would have to pay back to the federal government five percent of all the Medicare reimbursements the physician had received for that year. Senator Kyl warned this would force a "race to the bottom." He said, "If we’re focused on evidence-based criteria, how can we in good conscience simply take an arbitrary number? Ten percent will take a hit regardless of results." He warned that it would create a "conflict of interest" for doctors who would be deterred from ordering what is in the best interests of their patients for fear that they might end up among the 10% of doctors who would face a hefty financial penalty each year. Kyl noted that the Alliance of Specialty Medicine, a coalition of 11 medical organizations representing 200,000 doctors, has endorsed his amendment.

Senator Conrad remarked, "As I try to think about putting … my feet in the shoes, of a doctor who might be treating Medicare patients facing this construct, it is one thing to have the feedback, I think we should absolutely… I think we should do that. But I think this putting in a penalty, that really leaves me cold. I don’t know how you separate out overutilization that is really overutilization from those doctors who may have a group of patients who require more treatment than another group of patients and when you’re put in the position of, there is no way of knowing as you go through the year what is going to happen at the end of the year. And so what do any doctor who wants to avoid being in this penalty box have to do? …I think this is one part of this that I think we should think long and hard about. There is no way of knowing when you go through the year, what you are going to do at the end of the year. . . . I think this is something we would get down the road and we’d regret."

Committee Chairman Senator Max Baucus (D-MT), although he emphasized what he saw as the need to reduce "overutilization," said, "Maybe Senator Kyl has a point here" and offered to "see what modification we can make to address his concern."

Under the rules regulating amendments in the committee, any amendment that strikes a provision "scored" by the Congressional Budget Office (CBO) as cutting costs must include a measure that cuts the same amount in some other way. The CBO scored the penalty provision as cutting Medicare by $ 1 billion over ten years, and as proffered Senator Kyl’s amendment offset that by taking a corresponding amount from funding for the cooperative plans designed by Senator Conrad, and included in the bill proposed by Chairman Baucus, as a replacement for the much-debated "public plan."

Whether the Kyl Amendment to strike the "death spiral" provision, with a different offset, will be brought back with broad support, or whether it will face a closely divided vote, the next day or so is likely to show. Chairman Baucus has expressed his hope that the Senate Finance Committee will complete its consideration of amendments and take a final vote on approving the bill as amended by the end of the week.

MARK-UP TO RESUME TOMORROW

2009-09-28T20:00:00.000-07:00

The Senate Finance Committee hearings on healthcare restructuring will resume Tuesday due to the Monday holiday. The hearing is expected to continue over this week, with many of the most contentious amendments still awaiting consideration. Sen. Baucus hopes to complete the mark-up Thursday or Friday of this week.

It has been reported that the Senate as a whole could take up its health care reform bill as soon as the week of Columbus Day Oct. 12. It is expected that once the Senate Finance Committee mark-up is complete, that Majority Leader Harry Reid, Sen. Chris Dodd (who was at the helm of the Senate HELP mark-up), and Sen. Baucus will attempt to mesh the two Senate versions together. Sen. Reid has repeatedly suggested the Senate could take Columbus day week off for a recess, "but the health care reform debate would likely take precedence."

WASHINGTON TIMES BLASTS DEATH SPIRAL PROVISION IN SENATE FINANCE BILL

2009-09-25T06:20:00.000-07:00

September 25: An editorial in this morning's Washington Times warns of the rationing dangers in the Senate Finance Committee bill provision that would penalize 1 out of every 10 Medicare doctors each year for giving too much medical treatment to their senior citizen patients. Kyl Amendment D2 (Senate Finance Committee number 125) would eliminate this dangerous provision.

SENATE FINANCE COMMITTEE ADOPTS ROCKEFELLER AMENDMENT MAKING MEDICARE COMMISSION’S ABILITY TO ALTER MEDICARE STILL MORE POWERFUL

2009-09-24T13:51:00.000-07:00

September 24: By a vote of 15 to 3 , with 5 members "passing," the Senate Finance Committee reduced the ability of the representatives of the people to check the enormous authority of an unelected Medicare Commission. The original proposal from Chairman Baucus allowed Congress to pass a different set of limits on Medicare growth than recommended by the Commission by a majority vote. Under the Rockefeller Amendment, in order for Congress to overturn the Commission’s dictates would require a 2/3 vote.

The Medicare Commission is given almost unlimited powers to change Medicare in order to reduce Medicare payments to fit with the limits on growth it is designed to achieve. The only limits in the Chairman’s Mark not qualified by the term "if feasible" are that its proposals "not impact providers scheduled to receive a reduction to their inflationary payment updates in excess of a reduction due to productivity in a year in which the Commission’s proposals would take effect" and that they not "ration care, increase revenues, or otherwise change Medicare beneficiary cost-sharing, benefits, or eligibility standards." (Page 156 of Chairman’s Mark as modified).

Consequently, the Commission, without a vote by the people’s representatives in Congress, could, for example, significantly curtail the Private-Fee-for-Service alternative in Medicare Advantage. Under current law, the private fee-for-service alternative is the only one that permits senior citizens, without being subject to limits that could be imposed by the Center for Medicare and Medicaid Services, to add their own money on top of the government contribution in order to get health insurance that is less likely to limit access to medical treatment through managed care techniques or other means. With the significant cuts in Medicare funding that this legislation imposes in order to finance extending subsidies to cover the uninsured, it is particularly important to preserve this option for older Americans to allow them to protect their own life and health with their own money.

The three "no" votes came from Senators Hatch, Bunning, and Cornyn. Senators Grassley, Kyl, Crapo, Roberts, and Enzi passed. All Democratic Senators on the committee and Senators Snowe and Ensign voted in favor.

ROBBING PETER TO PAY PAUL – FUNDING THE SENATE FINANCE BILL BY CUTTING HEALTH CARE FUNDING FOR OLDER AMERICANS

2009-09-23T17:41:00.000-07:00

[Updated October 8, 2009]

The $829 billion (over ten years) bill for expanding health insurance coverage under the Senate Finance Committee bill as it now stands would be funded (roughly) 50% by cuts in Medicare and also 24% by a 40% tax on health insurance premiums over certain thresholds.

Thus, over half of the cost of covering the uninsured would come from “robbing Peter to pay Paul.” Older Americans, in particular, would be targeted, facing Medicare cuts of over $410 billion over the ten years from 2010 through 2019.

The one source of funding that would keep pace with the rising resources devoted to health care would be the 40% levy on health insurance premiums. Initially, this would apply (with some exceptions) to insurance plans that cost over $8000 annually for an individual or $21,000 annually for a family. These threshold amounts would increase each year by the average rate of inflation plus one percent. Since what is spent on health care consistently rises substantially more each year than the average inflation rate, the effect would be that, over time, larger and larger proportions of those with health insurance would begin to pay the tax on gradually rising portions of their premiums. [Compare NRLC's plan to extend healthcare without rationing here and an explanatory webinar here.]

DETAILS AND DOCUMENTATION

It is important to understand that the precise figures are in a state of flux, as the bill has not yet been converted to legislative language.[1] The objective here is solely to give a “big picture” rough analysis.

The total cost of expanding coverage (the subsidies for the uninsured, outlays for Medicaid and the Children’s Health Insurance Program and credits for small business) was estimated by the Congressional Budget Office at $829 billion.[2]

The total cuts to Medicare are over $410 billion dollars. [3]

The 40% excise tax on health care plans with annual premiums of more than $8000 for an individual or $21,000 for a family (with this threshold rising annually at the average rate of general inflation plus 1%), and with exceptions for over-55 retirees and those in certain high-risk professions is estimated to produce $201 billion over 10 years. [4]

NOTES
[1] The Senate Finance Bill as amended is available here.

[2] Based on tables entitled “Preliminary Estimate for Title I, Subtitle F Through Title V of the Chairman's Mark as Amended...” attached to Letter of Congressional Budget Office Director Douglas Elmendorf to Chairman Max Baucus of October 7, 2009, available here. The figure of $829 billion is derived from adding back in the offsets in that table for penalty payments and the excise tax on high premium insurance plans.

[3] Letter, from Doug Elmendorf and CBO to Chairman Max Baucus of October 7, 2009, available here. For a breakdown of Medicare spending see here.

[4] Joint Committee on Taxation, “Estimated Revenue Effects of the Revenue Provisions Contained in Title Vi Of Fiscal Years 2010 – 2019 as Amended Through October 2, 2009, And Under Consideration By The Committee On Finance" available here.

NAT HENTOFF ON THE “DEATH SPIRAL”

2009-09-23T17:17:00.000-07:00

Be sure to read the column by acclaimed civil libertarian Nat Hentoff, “Health bill's deadly fine print”: http://www.wnd.com/index.php?fa=PAGE.view&pageId=110710#

ANTI-RATIONING - MEDICARE COMMISION AMENDMENTS DEFEATED

2009-09-23T16:33:00.000-07:00

This afternoon, the Senate Finance Committee defeated two amendments related to the Medicare Commission. The first amendment (offered by Sen. Cornyn (D6/165)), which would have eliminated the Medicare Commission altogether, lost 14-9.

The other defeated amendment was offered by Sen. Kyl (D7/130). This amendment, support of which was urged by NRLC, was more limited than Sen. Cornyn’s amendment. The Kyl amendment sought eliminate a particular provision that gives the Medicare Commission almost unlimited powers to change Medicare in order to reduce Medicare payments to fit with the limits on growth it is designed to achieve (see blog immediately below for more analysis, also available at http://powellcenterformedicalethics.blogspot.com/2009/09/nrlc-urges-support-of-amendments-to.html).

Although Sen. Kyl spoke in favor of the amendment and sought to highlight many of the dangers of rationing that could be present in this Commission structure, the amendment was ultimately voted down on party lines on a procedural issue. [All amendments are required to show how they will be funded using offsets in the existing bill. Sen. Kyl argued, unsuccessfully, that his amendment needed no offset. ]

One amendment related to this issue remains, Sen. Bunning's Amendment D3 (135). It is to be hoped that many of Sen. Kyl's strong arguments of the danger of such a Commission will be raised again.

NRLC SUPPORTS AMENDMENTS TO REIGN IN ALMOST UNLIMITED MEDICARE COMMISSION POWER TO CHANGE MEDICARE

2009-09-23T12:31:00.000-07:00

With respect to the current amendment process, the National Right to Life Committee urges members of the Senate Finance Committee:

To SUPPORT Amendments 135 or 130 to require a Congressional vote in order to implement recommendations of the Medicare Commission.

Background:
The Medicare Commission is given almost unlimited powers to change Medicare in order to reduce Medicare payments to fit with the limits on growth it is designed to achieve. The only limits in the Chairman’s Mark not qualified by the term “if feasible” are that its proposals “not impact providers scheduled to receive a reduction to their inflationary payment updates in excess of a reduction due to productivity in a year in which the Commission’s proposals would take effect” and that they not “ration care, increase revenues, or otherwise change Medicare beneficiary cost-sharing, benefits, or eligibility standards.” (Page 156 of Chairman’s Mark as modified).

Consequently, the Commission, without a vote by the people’s representatives in Congress, could, for example, significantly curtail the Private-Fee-for-Service alternative in Medicare Advantage. Under current law, the private fee-for-service alternative is the only one that permits senior citizens, without being subject to limits that could be imposed by the Center for Medicare and Medicaid Services, to add their own money on top of the government contribution in order to get health insurance that is less likely to limit access to medical treatment through managed care techniques or other means. With the significant cuts in Medicare funding that this legislation imposes in order to finance extending subsidies to cover the uninsured, it is particularly important to preserve this option for older Americans to allow them to protect their own life and health with their own money.

While under the unamended Chairman’s Mark Congress could theoretically alter the Commission’s proposals so long as its legislative product resulted in the same reductions in Medicare, the burden of acting would be put on the Congress; an unelected group could eviscerate the right of senior citizens to get what they deem adequate care UNLESS majorities in the relevant committees and in both houses of Congress, with the agreement of the President, acted to preserve it. This is a risk too dangerous to take.

Therefore, the National Right to Life Committee urges support for Amendments 135 or 130, which would eliminate the automatic implementation of the Medicare Commission recommendations, requiring instead a vote by Congress to give them effect.

[The National Right to Life Committee has taken positions on other amendments – see http://powellcenterformedicalethics.blogspot.com/2009/09/position-on-certain-amendments.html and may shortly take positions on additional amendments.]

POSITION ON CERTAIN FINANCE COMMITTEE AMENDMENTS

2009-09-22T16:04:00.000-07:00

With respect to the current amendment process, the National Right to Life Committee urges members of the Senate Finance Committee:

1. TO SUPPORT Amendments 125/137 to eliminate the 5% penalty for Medicare physicians in the top 10% of spending.

2. TO SUPPORT Amendment 152 to allow senior citizens to opt out of Medicare.

3. TO OPPOSE Amendments 207, 208, and 210, relating to advance care planning, in their current form.

The National Right to Life Committee expects to take positions on additional amendments.

------------------------------
A brief statement of our reasons for the positions summarized above follows:

1. TO SUPPORT Amendments 125/137 to eliminate the 5% penalty for Medicare physicians in the top 10% of spending.

The provision penalizing doctors establishes that for at least five years, Medicare physicians who authorize treatments for their patients that wind up in the top 10% of per capita cost for a year will lose 5% of their total Medicare reimbursements for that year [see footnote 1 at bottom of release].

This means that all doctors treating older people will constantly be driven to try to order the least expensive tests and treatments for fear that they will be caught in that top 10%. It is noteworthy that this feature operates independently of any considerations of quality, efficiency, or waste - if you authorize enough treatment for your patients, however necessary and appropriate it may be, you are in danger of being one of the 1 in 10 doctors who will be penalized each year. Moreover, it creates a moving target - by definition, there will ALWAYS be a top 10%, no matter how far down the total amount of money spent on Medicare is driven.
It's like a game of musical chairs, in which there is always one chair less than the number of players – so no matter how fast the contestants run, someone will always be the loser when the music stops.

The incentive this creates is purely cost-driven, without any balancing of benefit. It will create a constant sense of uncertainty in doctors, since none can know in advance precisely what the cutoff for a given year will be - resulting in still more pressure to limit treatment and diagnostic tests to the bare minimum.

2. TO SUPPORT Amendment 152 to allow senior citizens to opt out of Medicare.
In order to pay for subsidies for insurance to the uninsured, the Chairman’s Mark includes significant reductions in payments that would otherwise be made under Medicare, including the authority for the Medicare Commission to impose limits on the rate of growth below the rate of medical inflation. This will make it increasingly difficult for senior citizens to obtain medical treatment under Medicare. They ought, at the least, to have the legal option of opting out of Medicare. Under this amendment, as with those parents who send their children to private schools, those opting out of Medicare would not be relieved of having had to pay into Medicare; they would just be able to use their own funds to obtain health insurance less constrained than that under Medicare.

3. TO OPPOSE Amendments 207, 208, and 210, relating to advance care planning, in their current form. These amendments would provide for governmental payment for advance care planning and various other ways of promoting advance directives. National Right to Life strongly encourages the execution of a pro-life advance directive, the Will to Live. However, the pro-life fear is that efforts to push patients and prospective patients to prepare advance directives may in practice become a means of persuading or pressuring them to agree to less treatment as a means of saving money.

Advocates of such measures frequently cite the cost savings if, as they expect, this promotion results in more directives rejecting life-saving treatment. Efforts to push patients and older people to prepare advance directives may in practice become a means of persuading or pressuring them to agree to less treatment as a means of saving money.

There have been several recent studies showing how advance directives and end of life conversations generally yield cost savings. A 2009 Archives of Internal Medicine study concluded, “Patient-physician discussions about [end of life] wishes are associated with lower rates of intensive interventions.”The mean cost of care was 35.7% less for patients who reported having end-of-life discussions compared with for patients who did not in their final week of life. “We refer to the end-of-life discussion as the multimillion-dollar conversation because it is associated with shifting costs away from expensive . . . care like being on a ventilator in an ICU, to less costly comfort care…,” noted Dana-Farber's Holly Prigerson PhD. A recent JAMA study reaches a similar conclusion that, "On the other hand, patients who reported having end-of-life discussions received less aggressive medical care and were more likely to receive hospice services for more than a week."

With this background, significant safeguards would need to be incorporated in any program for advance care planning – safeguards not fully present in the relevant amendments – in order for the promotion programs and consultation element to be truly protective of the values and intent of senior citizens, and to ensure they are not pressured into rejecting treatment against their true wishes. Therefore the National Right to Life Committee urges rejection of the amendments in their present form.

AMENDMENTS SEEK TO INTRODUCE END OF LIFE PROVISIONS

2009-09-21T11:13:00.000-07:00

564 amendments have been released by members of the Senate Finance Committee. They are grouped by topic: financing, coverage expansion and delivery system reform. You can find them at http://www.finance.senate.gov/sitepages/legislation.htm.

As expected, Sen. Rockefeller has sought to reincorporate many of the controversial end of life provisions relating to Advance Directives 207,208,210 (Rockefeller C27, C28, C30). National Right to Life strongly encourages the execution of a pro-life advance directive, the Will to Live (See http://www.nrlc.org/MedEthics/WilltoLiveProject.html). However, the pro-life fear is that efforts to push patients and prospective patients to prepare advance directives may in practice become a means of persuading or pressuring them to agree to less treatment as a means of saving money. This much is even admitted by the amendment as it is predicted to save money.

This batch of amendments is one among several of concern. Also, several key anti-rationing amendments have also been introduced. Check back in for more information before the Senate Finance Committee mark-up begins tomorrow morning.

AMENDMENTS SET TO BE RELEASED THIS WEEKEND

2009-09-19T07:01:00.000-07:00

Sen. Max Baucus's plan which has created deep divisions on both sides of the aisle is due to be considered in committee beginning Tuesday, September 22. At that time a slew of amendments are set to be considered. The amendments are set to be released Saturday morning. Please check back this weekend for analysis of these amendments as well as other provisions of the bill.

2009-09-17T15:47:00.000-07:00

“DEATH SPIRAL” RATIONING IN THE SENATE FINANCE BILL – DRIVING DOCTORS TO DENY CARE TO SENIOR CITIZENS

This is the cruelest and most effective way to ensure that doctors are forced to ration care for their senior citizen patients. It takes the telltale fingerprints from the government: instead of bureaucrats directly specifying the treatment denials that will mean death and poorer health for older people, it compels individual doctors to do the dirty work. It is an outrageous way to "reform" health care – by taking it away from America’s senior citizens.

National Right to Life Committee Executive Director David N. O’Steen, Ph.D.

Senate Finance Committee Chairman Max Baucus’s “Mark,” released September 16 and due to be considered in committee beginning Tuesday, September 22, contains a provision penalizing doctors based on how much medical treatment they direct for senior citizens on Medicare. It establishes that for at least five years (2015-2020), Medicare physicians who authorize treatments for their patients that wind up in the top 10% of per capita cost for a year will lose 5% of their total Medicare reimbursements for that year.

This means that all doctors treating older people will constantly be driven to try to order the least expensive tests and treatments for fear that they will be caught in that top 10%. Note that this feature operates independently of any considerations of quality, efficiency, or waste – if you authorize enough treatment for your patients, however necessary and appropriate it may be, you are in danger of being one of the 1 in 10 doctors who will be penalized each year.

Moreover, the penalty for Medicare doctors creates a moving target – by definition, there will ALWAYS be a top 10%, no matter how far down the total amount of money spent on Medicare is driven. Say that in 2015 the top 10% is anything over $10,000 per patient. In 2016 most doctors will scramble to hold down the treatments they authorize to avoid breaking that limit – with the result that the total amount spent will drop, so that the top 10% might then be, say, anything over $9,500. As the process repeats, the next year it might be anything over $9,000, the year after that anything over $8,000, and so on.

It's like a game of musical chairs, in which there is always 1 chair less than the number of players -- so no matter how fast the contestants run, someone will always be the loser when the music stops.

The disincentive to provide treatment for senior citizens the penalty creates is determined purely by cost, without any assessment of balancing cost with benefit. It will create a constant sense of uncertainty in doctors, since none can know in advance precisely what the cutoff for a given year will be – resulting in ever-increasing pressure to limit treatment and diagnostic tests to the bare minimum.

The provision to which this blog entry refers is as follows ( from documents available at http://finance.senate.gov/sitepages/legislation.htm ).

On pages 80-81, in the "Expansion of Physician Feedback Program" in Title III, Subtitle A, Part I; specifically, at the top of page 81: "Beginning in 2015, payment would be reduced by five percent if an aggregation of the physician's resource use is at or above the 90th percentile of national utilization. After five years, the Secretary would have the authority to convert the 90th percentile threshold for payment reductions to a standard measure of utilization, such as deviations from the national mean."

On page 80, the Chairman's Mark states, "In preparing feedback reports, the Secretary would be required to make appropriate data adjustments to (1) account for differences in the demographic characteristics and health status of individuals so as not to penalize those physicians who tend to serve less healthy individual [sic] who may require more intensive interventions, and (2) eliminate the effect of geographic adjustments in payment rates."

While these adjustments may reduce the degree to which physicians are disproportionately penalized if they have sicker patients or work in high-cost areas, they do not change the fundamental danger of this provision, which (as explained above) is to create continual pressure on doctors to make ever-increasing reductions in the treatments and tests they order for their patients so as to avoid being in the penalized top 10%.

CBO rates this as taking $1 billion from Medicare payments over a period of 6 years. See CBO 9/16/09 letter to Chairman Baucus, Table, page 3 of 7.

SENATE FINANCE DRAFT CONTAINS DANGEROUS PENALTIES THAT INCENTIVIZE LIMITING CARE FOR SENIORS

2009-09-16T17:41:00.000-07:00

The bill unveiled today by Sen. Max Baucus (D-MT) contains important elements that would greatly impact the ability of patients to receive unrationed medical care.

With respect to rationing, the proposal contains a Medicare provision that, beginning in 2015, would severely financially penalize physicians who are in the top 10% of medical resource use. This provision does not link funding to outcomes or quality; instead, it will force a "race to the bottom" with relentless pressure on doctors to limit health care for their older patients. On top of the significant Medicare cuts in the bill, this will gravely endanger the lives of America's senior citizens.

The bill does contain language to prevent the use of comparative effectiveness analysis in a manner that would discriminatorily deny treatment because of age, disability, or terminal illness; however, this language would not affect the financial incentive to ration care as described above.

There are other places in the bill where the Secretary of Health and Human Services is given discretion to regulate the treatment that healthcare providers can give to their patients. Please check back soon for further analysis.

THE HIGHLY ANTICIPATED SENATE FINANCE MARK EXPECTED TOMORROW

2009-09-15T22:00:00.000-07:00

The Senate Finance Committee Chairman, Sen. Baucus (D-MT), is expected to release his highly anticipated health reform mark as early as Wednesday. It has also been reported that Sen. Rockefeller (D-WV) plans to introduce amendments containing end-of-life provisions that were originally expected to be part of the Baucus mark but were taken out over the summer after concerns.

During a briefing to reporters following a meeting of Finance Democrats on Monday, Sen. Baucus conveyed optimistically, that be believed that committee amendments would not unravel bipartisanship and that some Republicans join in – in adopting the bill - even if none sign on to the initial mark. This remark was no doubt in response to the major concerns that Republican Senators Enzi and Grassley had as reported today by the New York Times writing, “Two of the three Republicans in a small group trying to forge a bipartisan compromise on health care have requested numerous major changes in a proposal drafted by the chairman of the Senate Finance Committee, reducing the chances that he can win their support.”

It has also been reported that after the chairman's mark is released Wednesday (Sept. 16), after which the committee will meet in executive session to prepare the groundwork for amendments when markup begins next Tuesday (Sept. 22).

OPEN ADVOCACY OF RATIONING - YET AGAIN

2009-09-14T10:42:00.000-07:00

Over the weekend tens of thousands gathered in Washington D.C. to voice opposition to the proposed Health Care Restructuring Plans. At the same time, President Obama at a rally in Minnesota again reiterated that he is not dissuaded from moving forward -- while at the same time presenting no credible source of financing this new health care promise.

This morning, a USA Today article gives us a peak at things to come if we cannot adequately pay for the health care restructuring contemplated by existing proposals. The new extension of health benefits and new subsidies, as the House bill, the bill reported from the Senate Health, Education, Labor and Pension Committee, and the President's outline would attempt to pay for them, will leave a funding gap that would force government-imposed rationing of life-saving medical treatment. The article, available at http://www.usatoday.com/news/health/2009-09-13-kidney-doctors_N.htm?csp=24&R, describes a commentary published in the Journal of the American Society of Nephrology by Felix Knauf and Peter Aronson.

In their commentary in the prestigious journal, the pair openly notes that dialysis rationing would curb Medicare spending on chronic kidney failure in a big way. They regretfully acknowledge that to ration in this way "would almost certainly be politically unacceptable." ...But only 'politically' unacceptable....

The Yale doctors go on to write that "physicians are often willing to provide dialysis care to patients with greatly diminished quality of life.” They note disapprovingly that a survey of kidney doctors found that nearly half would be willing to continue dialysis in a patient who develops permanent severe dementia.

Here, note that they use the phrase "diminished quality of life." Under House and Senate HELP Committee proposals, if inadequate funding is combined with the emphasis on “controlling costs”, people with disabilities, those with poor “qualities of life”(whatever that will be interpreted to mean), the elderly and the terminally could be the first in line to have their treatment labeled 'ineffective' and denied. And, of course, it will not stop with dialysis.

The emphasis on reducing cost present in White House and Congress, coupled with an increasing openness in advocating rationing present in the Knauf/Aronson piece - makes for a real threat of rationing if the gap in available funding for healthcare becomes too wide.

See older posts and www.nrlc.org/healthcarerationing for positive solutions.

MR. PRESIDENT – WE ARE GETTING MORE FOR OUR MONEY!

2009-09-11T12:09:00.001-07:00

In his September 9th speech before Congress, President Obama’s asserted that our extra money spent in the United States does not buy us better healthcare.

But, Mr. President, – we ARE getting more for our money!

What about wait times?
According to the Commonwealth Fund, there are alarming percentages of people who have to wait more than four months for non-emergency surgery. In the U.S., 5% wait more than 4 months. In Australia, Australia 23% wait more than 4 months. In New Zealand, 26% wait, in Canada 27% wait and in Britain, over one-third – 36% wait more than 4 months.

What About Survival Rates for major conditions and access to treatments?
According to the American Cancer Society in a recent 2009 report— the number of cancer deaths have steadily declined in the United States over the past 15 years, saving a possible 650,000 lives. The cancer death rate (the #2 cause of death) fell by 19.2 percent for men and 11.4 percent for women between 1990 and 2005.

An article published in 2007 in the British medical journal The Lancet strongly suggests that the United States is also outperforming the world when it comes to surviving diseases such as AIDS, heart disease, cancer, and pneumonia.

Forty-four percent of Americans who could benefit from statins, lipid-lowering medication that reduces cholesterol and protects against heart disease, take the drug. That number seems low until compared with the 26 percent of Germans, 23 percent of Britons, and 17 percent of Italians who could both benefit from the drug and receive it.[i] Similarly, 60 percent of Americans taking anti-psychotic medication for the treatment of schizophrenia or other mental illnesses are taking the most recent generation of drugs, which have fewer side effects. But just 20 percent of Spanish patients and 10 percent of Germans receive the most recent drugs.[ii]

What about life expectancy?
The 2009 CDC report (relying on the latest data from 2006) says Americans are living longer than ever now, and longer every year. Americans average 77.9 years, up from 68 years in the 1950’s.

Although there is the common perception that life expectancy in the U.S. is lower than most industrialized nations, a study by Robert Ohsfeldt and John Schneider for the American Enterprise Institute found that exogenous factors to be so distorting that if you correct for homicides and accidents, the United States rises to the top of the list for life expectancy.[iii]

What about medical advancements?
In fact, Americans played a key role in 80 percent of the most important medical advances of the past 30 years.[iv]

[i] Oliver Schoffski, “Diffusion of Medicines in Europe,” paper prepared for the European Federation
of Pharmaceutical Industries and Associations,” 2002, cited in Daniel Kessler, “The Effects of Pharmaceutical Price Controls on the Cost and Quality of Medical Care: A Review of the Empirical
Literature,” submitted to the U.S. International Trade Commission.

[ii] Ibid.

[iii] Robert L. Ohsfeldt and John E. Schneider, The Business of Health: The Role of Competition, Markets,
and Regulation (Washington: American Enterprise Institute Press, 2006).

[iv] Economic Report of the President (Washington: Government Printing Office, 2004), p. 192.

FUNDAMENTAL FLAW IN OBAMA'S HEALTHCARE SPEECH

2009-09-10T09:03:00.000-07:00

President Obama's September 9th speech to Congress advocating his health care restructuring plan suffered from a key and fatal flaw. His mistake is one that, unfortunately, is shared by many liberals, conservatives, Democrats and Republicans. He said, “[It] will slow the growth of health care cost for our families, our businesses, and our government.”

Consequently, his proposal focuses on limiting our ability to spend increasing amounts to save lives and preserve health through increasingly better healthcare as we have been doing consistently for over 75 years.

The assumption that one can reduce what is spent to save lives and preserve health -- and do so solely by attacking waste and inefficiency without rationing is simply wrong.
[See http://www.nrlc.org/medethics/AmericaCanAfford.html, http://www.nrlc.org/MedEthics/SaveNotRation.html, and our webinar at http://nrlcomm.wordpress.com/2009/06/13/hcrwebinar/ ]

In simplest form, the facts are these:
1. As a nation we have been spending more each decade on healthcare BECAUSE WE CAN: production increases in our economy have continually freed up more resources that we can devote to this life-saving product.
2. Contrary to President Obama’s assertions, this extra money buys us better healthcare – reflected in higher survival rates for life-threatening illnesses in the United States.
3. The problem of the uninsured is one of distribution not incapacity --we as a society can afford better healthcare for those with low incomes who cannot cover the costs of healthcare in the way that most working class Americans can.
4. It is government, not the economy as a whole, that has trouble paying for healthcare because of a fundamental mistake in the way that existing and proposed subsidies for healthcare are funded.
5. The solution is to finance these subsidies based on what Americans are paying for healthcare rather than on general fund revenue that cannot keep up.
6. If on the contrary, as President Obama proposes, we seek to reduce the deficit by government imposed limitations on what Americans can spend to save their own lives and preserve their health, the result will be rationing, worse health, and unnecessary deaths.

ADVANCE CARE PLANNING PROMOTION – THE GENUINE CONCERNS BEHIND THE COMPETING RHETORIC

2009-09-09T14:33:00.000-07:00

Focusing on condemnation of some exaggerations and hyperbole in the questions raised about the promotion of “advance care planning” in H.R.3200, the House health restructuring bill, President Obama and others have ignored or swept aside legitimate concerns about the troubling nature of pushing older people to consider rejecting life-saving medical treatment in the context of what is promoted as a cost-saving measure in health carereform. Testimony recently presented by the Chairman Barbara Meara of the New York State Right to Life Committee provides a well-documented and careful analysis of the dangers in these provisions as written.
[Testimony text is available at: http://www.nrlc.org/HealthCareRationing/NYtestimony.pdf]

In addition, an article by Jim Towey detailing his fight to remove a Veteran’s Administration document that illustrates precisely the sort of unbalanced pressure to reject treatment critics fear, a fight that was successful in the previous Administration but was reversed by the Obama Administration, makes chilling reading. [Article available at: http://article.nationalreview.com/?q=ZWEzMjVlODBiMmFhNDNiNTRiZTg1ZWRmNzU1NDc4YTE=&w=Mw==]