A CLOSER LOOK - MEDICARE COMMISSION AND RATIONING

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

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.”

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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

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

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

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

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

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.