ANALYSIS OF DANGEROUS
ELEMENTS PRESENT IN HOUSE
The House Bill contains important
elements that would greatly impact the ability of patients to receive
unrationed medical care. These elements, combined with inadequate funding –
a scheme of “robbing Peter to pay Paul” wherein half of the funding comes
from cuts in Medicare spending, would result in rationing life-saving
treatment for senior citizens.
Limiting Senior Citizens’ Right to Use Their Own Money to Save Their Own
The House bill would effectively allow
federal bureaucrats at the Centers for Medicaid and Medicare Services (CMS)
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.
What most people do not realize is that,
as a result of legislative changes in 1997 and 2003 undertaken at the
instance of 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 imposed by government regulation.
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 1165v 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.
There is a similar
provision which allows an exchange to exclude “particular health insurance
issuers ... based on a pattern or practice of excessive or unjustified
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 create a “chilling effect,” deterring insurers who hope to be able to compete within the exchange from offering adequately funded plans even outside of it, limiting consumers’ access to adequate and unrationed health care.
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.
For those eligible to participate in the insurance exchange, H.R. 3962 limits their right to spend their own money to save their own lives. Section 104 empowers the Commissioner of the Health Insurance Exchange to exclude from the exchange plans offered by health insurance issuers 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.
There is language in the Reid bill that protects against discriminatory use of comparative effectiveness research on the basis of age, disability or terminal illness.vii However, this important language is not in the House version.
Consequently, 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 2401viii 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 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). For more on this see hereix. 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 1401x, which creates a Center for Comparative Effectiveness Research, and from Section 1159'sxi 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” planningxii, while Section 1233xiii reimburses Medicare providers for “advance care planning consultations” with senior citizens. While the National Right to Life Committee supports advance directives and indeed promotes its own version, the “Will to Live,”xiv 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.” xv
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….”xvi
Indeed, a medical journal article of which Priegerson was lead author concluded that the mean cost of care was 35.7% less for patients who reported having end-of-life discussions, compared with patients who did not.xvii A recent study published in the Journal of the American Medical Association similarly concluded, "[P]atients 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."xviii
Myra Christopher, a friend of Health and Human Services Secretary Kathleen Sebelius, heads a major "bioethics" think tank - Center for Practical Bioethics - that has long pushed for advance directives. In an October speech, she 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 . . . ." [emphasis added]xix
What is particularly disturbing about this “cost-savings” rationale for this provision of the bill is that it appears to follow President Obama’s call this past spring for “a very difficult democratic conversation” about “those toward the end of their lives [who] are accounting for potentially 80 percent of the total health care bill out here.”xx
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 – and while 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, Section 1233 contains no such limitation on the “advance care planning consultations” with Medicare patients that it finances.xxi
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.”xxii 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.”
Note: Since its inception, the pro-life movement has been just as committed to protecting older people and people with disabilities from euthanasia as to protecting unborn children from abortion. We have long recognized that denial of treatment, food and fluids necessary to sustain life against the will of the patient is a form of involuntary euthanasia, and thus have fought to protect the vulnerable from rationing of health care, whether by health care providers such as hospital ethics committees or by the government. For these reasons NRLC opposed the Clinton Health Care Rationing Plan of 1993-94, and has fought rationing in Medicare restructuring (see herexxiii), as well as today (see herexxiv). H.R. 3962 contains provisions that threaten these lives.
iv Beginning on page 34 of H.R.3962, “SEC. 104. SUNSHINE ON PRICE GOUGING BY HEALTH IN SURANCE ISSUERS.” <available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3962eh.txt.pdf>
v Beginning on page 539 of H.R.3962, “SEC. 1165. LIMITATION OF WAIVER AUTHORITY FOR EMPLOYER GROUP PLANS.” <available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3962eh.txt.pdf>
vi Beginning on page 549 of H.R.3962, SEC. 1175. AUTHORITY TO DENY PLAN BIDS…(C) REJECTION OF BIDS.—Nothing in this section shall be construed as requiring the Secretary to accept any or every bid by an MA organization under this subsection.”
vii Section 6301( c) of the bill [adding Section 1182 ( c), (d) and (e)] to the Social Security Act), pp. 1685-87.
viii Beginning on page 1333 of H.R.3962, “SEC. 2401. IMPLEMENTATION OF BEST PRACTICES IN THE DELIVERY OF HEALTH CARE.” <available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3962eh.txt.pdf>
x Beginning on page 741 of H.R.3962, “SEC. 1401. COMPARATIVE EFFECTIVENESS RESEARCH.” <available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3962eh.txt.pdf>
xi Beginning on page 510 of H.R.3962, “SEC. 1159. INSTITUTE OF MEDICINE STUDY OF GEOGRAPHIC VARIATION IN HEALTH CARE SPENDING AND PROMOTING HIGH-VALUE HEALTH CARE.” <available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3962eh.txt.pdf>
xii Beginning on page 134 of H.R.3962, “SEC. 240. DISSEMINATION OF ADVANCE CARE PLANNING INFORMATION. (a) IN GENERAL.—The QHBP offering entity — (1) shall provide for the dissemination of information related to end-of-life planning to individuals seeking enrollment in Exchange-participating health benefits plans offered through the Exchange;2) shall present such individuals with— A) the option to establish advanced directives and physician’s orders for life sustaining treatment according to the laws of the State in which the individual resides; and(B)information related to other planning tools;”
xiii Beginning on page 649 of H.R.3962, “SEC. 1233. VOLUNTARY ADVANCE CARE PLANNING CONSULTATION.” <available at: http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h3962eh.txt.pdf>
xvii “Health Care Costs in the Last Week of Life Associations With End-of-Life Conversations,” Arch Intern Med. 2009;169(5):480-488.
xviii Wright AA, Zhang B, et al. “Associations Between End-of-Life Discussions, Patient Mental Health, Medical Care Near Death, and Caregiver Bereavement Adjustment.” JAMA. 2008;300(14):1665-1673.
xix Transcript available at: http://www.nrlc.org/HealthCareRationing/MyraChristopherspeech.html
xx April 14 interview, published in the New York Times Magazine April 29, 2009 <Available at http://www.nytimes.com/2009/05/03/magazine/03Obama-t.html?pagewanted=all >
xxi See endnotes 12 and 13.
xxii Washington's assisted-suicide law, the Washington "Death with Dignity Act," states: "Nothing in this chapter authorizes a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with this chapter do not, for an purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law. State reports shall not refer to practice under this chapter as 'suicide' or 'assisted suicide." (RCW 70.245.180) and Oregon's assisted-suicide law, the Oregon "Death with Dignity Act" states: "Nothing in ORS 127.800 to 127.897 shall be construed to authorize a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia. Actions taken in accordance with ORS 127.800 to 127.897 shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law. (ORS 127.880. s. 3.14)