Rationing Dangers in the House Health Care Bills

NRL News
Page 11
October 2009
Volume 36
Issue 10

Rationing Dangers in the House Health Care Bills
By Jennifer Popik, J.D.

As NRL News goes to press, leaders in the House of Representatives are meeting in an effort to merge three health care restructuring bills passed out of committees before the August recess and to bring down projected costs. House Majority Leader Steny Hoyer (D-Md.) has said that he expects a final version for consideration in November, when the House will be in session during the first and third weeks (taking the other weeks off for Veteran’s Day and Thanksgiving).

Inadequate Financing

All versions of the House health care restructuring bill provide for premium subsidies to help the uninsured obtain health insurance as well as various forms of a public option. In an attempt to shave their $1.2 trillion plan down to $900 billion, the final bill is likely to reduce subsidies, place more people into Medicaid, and employ several of the taxes raised in the Senate Finance Committee. In large part the bill is also financed by cuts to the Medicare program.

However, House leaders have rejected the Senate Finance plan’s tax on high-value plans. (The one financing mechanism that would keep pace with the rising resources devoted to health care would be the 40% levy on health insurance premiums. For more on this see http://powellcenterformedicalethics.blogspot.com/2009/09/robbing-peter-to-pay-paul-funding.html.)

House leaders are instead relying on a surcharge on higher-income Americans. It has also been reported by the Washington Post that in order to come in under $900 billion dollars the leadership will cut out a provision that ensures that doctors receive their Medicare payment update formula. This would then be addressed in an expensive stand-alone bill.

Failing to address this very integral and expensive aspect of health care in these comprehensive bills can give the incorrect appearance that this bill is able to be paid for—when that is not the case. And when inadequate financing is present—when Congress overpromises and underpays—the only way to make ends meet in practice will be to ration health care.

Comparative Effectiveness

How can such rationing be accomplished? One method is through the use of “comparative effectiveness” research. The House bill provides significant funding for research and analysis intended to establish which treatments are most—and least—likely to benefit patients at the lowest cost. The difficulty is that one standard measure of benefit and effectiveness, the so called “quality-adjusted life year” (QALY), discriminates on the basis of disability, age, and “quality of life.”

In general, a QALY assumes that a year of life lived in perfect health is worth one QALY, and that a year of life lived in a state of less than perfect health is worth less than one. In a system that faces budget shortfalls, this calculation can be multiplied by a budgeted dollar amount for one year of life, and used to set an upper limit on the treatment that will be authorized.

This type of assessment is so dangerous, not only because it is being used to ration care abroad, such as by the National Institute for Health and Clinical Excellence in the United Kingdom, but because there are many American academics and health providers advocating this.

A September USA Today article titled “Kidney Doctors Question Dialysis Guidelines” describes a commentary published in the Journal of the American Society of Nephrology by Felix Knauf and Peter Aronson. In the prestigious journal, the pair openly notes that dialysis rationing would curb Medicare spending on chronic kidney failure in a big way. They lament that “physicians are often willing to provide dialysis care to patients with greatly diminished quality of life.”

In a featured piece in the July 19 New York Times Magazine, Princeton bioethicist Peter Singer openly advocated government rationing of health care, using QALYs. He made it clear that society should be more willing to withhold treatment from those who are old and those with disabilities.

These are two examples among many increasing instances of open advocacy of rationing.

Unlike the protections in the Senate Finance Bill, the House bills allow comparative effectiveness research to be used in making coverage decisions, determining reimbursement rates, and in establishing incentive programs in ways that discriminatorily deny or limit health care based on age, present or predicted disability, or expected length of life.

Price Controls

The House bills give broad authority to state bureaucrats to review proposed insurance premiums and to use that review as the basis for the exclusion of plans from the state “exchanges” through which much health insurance will be purchased. This will effectively lead to premium price controls. Further, an amendment adopted by the Energy and Commerce Committee places an explicit limitation on premium increases.

When the government limits by law what can be charged for health care, it limits what people are allowed to pay for medical treatment. Under a scheme of premium price controls, health insurance companies will ration lifesaving medical treatment as they are squeezed more and more tightly each year by declining “real” (adjusted for health care inflation) value of the premiums they take in. These day-to-day rationing decisions will have the most direct and visible impact on the lives—and deaths—of people with a poor “quality of life.”

Advance Care Planning

The unmelded House legislation contains provisions to promote advance directives like “living wills,” including: 1) Medicare reimbursement for consultations about “advance care planning” between health care providers and their patients when they enter Medicare, every five years thereafter, and if they become seriously ill; 2) requiring private and public health care plans to give potential enrollees the option to establish advance directives; and 3) a public education campaign, toll-free telephone hotline, and clearinghouse to promote advance directives and other advance care planning.

Advocates of such measures frequently cite the cost savings if, as they expect, this promotion results in more directives rejecting lifesaving treatment. “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 ... ,” says Holly Prigerson of Boston’s Dana-Farber Cancer Institute.

National Right to Life strongly encourages the execution of a pro-life advance directive, the Will to Live. (See http://www.nrlc.org/MedEthics/WilltoLiveProject.html)

However, the pro-life fear is that efforts to push patients and prospective patients to prepare advance directives may in practice become a means of persuading or pressuring them to agree to less treatment as a means of saving money. Moreover, governmental promotion of advance care planning must not include the “option” of assisted suicide. It is also extremely troubling that Compassion & Choices, the nation’s leading pro-assisted suicide organization, is not only aggressively promoting these provisions, but claims responsibility for the inclusion of the main provision.

Action Alert

As House leadership merges the three bills, let your representative know that:

1. Unless there is sustainable, adequate financing, overpromising while underfunding health insurance for the uninsured will almost surely lead to rationing when, down the road, government has to face the shortfall.

2. The government must not be authorized, whether through “comparative effectiveness” research using “quality-adjusted life years” or other measures, to compel or encourage denial of lifesaving medical treatment, food, or fluids based on the patient’s age, disability, or “quality of life.”

3. Price controls must not limit the right of Americans to use their own money to save their own lives.

4. Measures to promote living wills and other advance care directives, like funding for “advance care planning” consultations in Medicare, must not be used to pressure patients into rejecting lifesaving treatment as a means of saving money, nor provide for assisted suicide as an alternative.