NRL News
Page 10
October 2009
Volume 36
Issue 10

Rationing Dangers in the Senate Health Care Bills

BY Burke Balch, J.D.

Senate Majority Leader Harry Reid (D-Nv.), Senators Max Baucus (D-Mt.) and Chris Dodd (D-Ct.), and Obama Administration officials are meeting to decide how to combine the different bills reported by the Senate Finance and Health, Education, Labor and Pensions Committees in a way that can obtain the 60 votes necessary to shut off a filibuster and pass health care restructuring.

Death Spiral

One particularly dangerous provision penalizes doctors based on how much medical treatment they direct for senior citizens on Medicare. It establishes that for at least five years, beginning in 2014, Medicare physicians who authorize treatments for their patients that wind up in the top 10% of per capita cost for a year will lose 5% of their total Medicare reimbursements for that year.

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

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

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

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

In the words of National Right to Life Committee Executive Director David N. O’Steen, Ph.D., “This is the cruelest and most effective way to ensure that doctors are forced to ration care for their senior citizen patients. It takes the telltale fingerprints from the government: instead of bureaucrats directly specifying the treatment denials that will mean death and poorer health for older people, it compels individual doctors to do the dirty work. It is an outrageous way to ‘reform’ health care—by creating a ‘death spiral’ that year after year will deny more and more life-preserving treatment to America’s senior citizens.”

Other Senate Rationing Concerns

While the bill reported out of the Senate Finance Committee contains language to prevent the use of comparative effectiveness research to deny treatment based on downgrading the “quality of life” of people with disabilities, older people, and those with terminal illness, the bill reported by the Health, Education, Labor, and Pensions committee contains no such protections. They were, in fact, voted down in committee when an amendment embodying them was offered by Senator Mike Enzi (R-Wy.). It will be essential for the protective language either to be contained in the merged bill eventually brought to the Senate floor or else added by floor amendment.

Neither Senate bill currently contains advance care planning provisions similar to those in the House legislation, but Senator Jay Rockefeller (D-W.V.) has vowed to offer an amendment based on a bill he has introduced during Senate floor consideration.

The issue of adequate funding, without which rationing is inevitable, is a concern with the Senate as with the House legislation. As it stands, the Senate Finance bill is financed about 50% through cuts in Medicare for senior citizens.

Action Alert

The most important message to give your senators at present is this:

“Please vote to eliminate the musical chairs death spiral provision in the Senate Finance bill that threatens senior citizens by annually penalizing 1 out of every 10 Medicare doctors based on the cost of the treatment and tests their elderly patients need, without regard to evaluating the quality or benefit of the care.”

If you have the opportunity for an extended dialogue, make the points in the House Action Alert as well.