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On December 23, 2009, the Senate
passed a bill which contains important elements that will 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, will
result in rationing life-saving treatment for senior citizens.
Limiting Senior Citizens’ Right to Use Their Own Money to Save Their Own
Lives
Limiting Exchange Users’ Right to Use Their Own Money to Save Their Own
Lives
“Shared Decisionmaking” – Advance Care
Planning By Another Name?
A Powerful
Rationing Board
Assisted Suicide Funding?
The Secretary and Quality and Efficiency Discretion
Notes
Limiting Senior Citizens’ Right to Use Their Own Money to Save Their Own
Lives
The Senate bill duplicates the House bill provision that 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.
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 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.
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.
This means that such plans will not be forced to ration treatment, as long
as senior citizens are free to choose to pay more for them. 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. 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.
This program faces potential elimination under the Senate Bill. Section 3209
indirectly amends the section in existing law allowing private
fee-for-service plans to set their premiums without approval by 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.” [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 Senate bill could lead to elimination
of the only way that seniors have to escape rationing - taking away their
right to spend their own money to save their own lives.
Limiting Exchange Users’ Right to Use Their Own Money to Save Their Own
Lives
In the Senate Bill, a new provision
–Section 1003 -- will effectively allow state bureaucrats to limit the right
of Americans who are NOT on Medicare to use their own money to save their
own lives.[2] 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.”[3]
Originally, state-based "exchanges" were designed to allow comparison
shopping among all insurance plans that provided the basic benefits. Under
Section 1003, however, exchanges would be authorized, in effect, to 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 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.
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.”
“Shared
Decisionmaking” – Advance Care Planning By Another Name?
The Senate bill does not include provisions paralleling those in the House
bill designed to create incentives for “advance care planning.”[4] Instead,
Section 3506 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 Senate 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.”
[6] 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.”[7] Money would
be awarded to establish “Shared Decisionmaking Resource Centers . . . to
provide technical assistance to providers and to develop and disseminate
best practices . . .”[8]
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,”[9] 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
A Powerful Rationing Board
Under the Senate bill, an “Independent
Payment Advisory Board” is given the authority to recommend, and the HHS
Secretary is given the authority to limit the right to use one's own money
to save one's own life
Under the Senate bill’s Section 3403 and
Section 10320, the "Independent Payment Advisory Board" will have sweeping
powers.
The “Independent Medicare Advisory Board”
is 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%.[10]
To the extent the Center for Medicare and
Medicaid Services (CMS) 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.[11]
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 Senate 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.
As originally set forth in the Reid Substitute, the Board’s mission was
focused on cutting Medicare reimbursement rates (see above) – a duty it
retains. However, the Manager's Amendment dramatically expanded 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.
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 Senate bill. The Senate bill only retains the provision preventing
discrimination against those who refuse to participate in assisting
suicide.[12]
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.”
[13]
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?
The
Secretary and Quality and Efficiency Discretion
There are numerous places in the Senate
bill where “Quality” and "efficiency" measures may lead to discriminatory
denial of treatment based on disability, age, and other quality of life
criteria.
There is language in the Senate bill that
protects against discriminatory use of comparative effectiveness research on
the basis of age, disability or terminal illness.[14] However, this
important language has not been made applicable to the multiple provisions
under which the Secretary can impose “quality” measures. [15]
Section 1559 [16] states that on the
basis of race, age, sex or disability, [17] “an individual shall not . . .
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under,” health programs or activities receiving
Federal financial assistance. Perhaps ominously, however, this
anti-discrimination language is preceded by “Except as otherwise provided
for in this title (or an amendment made by this title) . . . .” That is why
it is critical to apply the anti-discrimination language from the
Comparative Effectiveness provisions to the indicated provisions in note 15.
Section 10304 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. See
http://www.nrlc.org/news/2009/NRL07-08/CompEff.html .
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 at
http://www.nrlc.org/HealthCareRationing/SenFinCommBill.html .
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.
NOTES
[1] At page 904
[2] Section 1003 creates a new Section 2794 of the Public Health Service Act
(beginning at page 40).
[3] Ironically, Section 1311(e)(B)(ii) (p.145) 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 (Beginning on page 34), 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.)
[4] Note: The Senate bill provides for encouraging minors in foster care to
prepare advance directives- in the same manner as the house bill.
[5] Sec. 3506, pp. 1085-1093
[6] At p. 1088
[7] At p. 1110
[8] At p. 1110
[9] At p. 1109
[10] Section 3403, beginning on page 1000.
[11] Letter from Douglas Elmendorf, Director, Congressional Budget Office to
Senate Majority Leader Harry Reid (November 18, 2009), p. 11.
[12]Section 1553, p. 364.
[13] 42 U.S.C. Sec. 14408.
[14] Section 6301( c) of the bill [adding Section 1182 ( c), (d) and (e)] to
the Social Security Act), pp. 1685-87.
[15] Places in the Senate bill where anti-discrimination language would be
necessary
(a) Those described in Section 1890(b)(7)(B)(i) of the Social Security Act;
[p. 703]
(b) Any quality measure developed, and, in its improved, updated, or
expanded form, any quality measure improved, updated, or expanded under
subsection (c) ; [pp. 694-700]
(c) Strategy under Section 1311(g)(1); [p. 148]
(d) Guidelines under Section 1311(g)(2); [p. 149]
(e) Regulations under Section 1311(h)(1)(B); [p. 150]
(f) The Secretary’s application of recommendations under Section 1323(d)(3);
[p. 192]
(g) Requirements developed under Section 2717(a) of title XXVII of the
Public Health Service Act; [pp. 30-31]
(h) Measures under Section 3006(a)(2)(A) and (b)(2)(A); [pp. 666, 669]
(i) Appropriateness criteria under Section 1115A(b)(2)(B)(vi) of the Social
Security Act; [p. 713]
(j) Guidelines under Section 1115A(b)(2)(B)(xii) of the Social Security Act;
[p. 714]
(k) Best practices and proven care methods under Section 1115A(b)(2)(B)(xv)
of the Social Security Act; and
(l) The measurement of patient-level outcomes and patient-centeredness
criteria under Section 1115A(b)(4)(A) of the Social Security Act. [p. 723]
[16] At. p. 363
[17] Referencing the Civil Rights Act of 1964 (race), title IX of the
Education Amendments of 1972 (sex), the Age Discrimination Act of 1975
(age), and section 504 of the Rehabilitation Act of1973 (disability)
[“handicap”]. |