Proposals Contain Numerous Rationing Components
By Jennifer Popik,
Both the House and
Senate have passed bills fraught with rationing concerns, with
negotiations now having moved behind closed doors. Having
circumvented the conference process, Democratic congressional
leaders will work out differences between the House and Senate
version among themselves with no input from Republicans. Their
expressed goal is to pass a final bill to send to President Obama to
sign by February’s Presidential State of the Union Address.
The following is a
list of important rationing elements in the two bills.
Robbing Peter to
Neither bill contains
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.
Both the Senate and House bills are ripe with elements that can
enable this rationing.
Citizens’ Right to Use Their Own Money to Save Their Own Lives
The House and Senate
have duplicate provisions that would effectively allow federal
bureaucrats at the Centers for Medicaid & Medicare Services (CMS) to
bar senior citizens from adding their own money, if they choose, to
the government contribution in order to get Medicare plans less
likely to ration lifesaving treatment.
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 retirees.
As the baby boom generation moves from middle age 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.
Rather than facing
rationing or huge tax increases, the shortfall could be made up by
payments from older people themselves. Currently there is a private
fee-for-service insurance option within the Medicare Advantage
alternative. People who choose this latter option could finance
their Medicare health insurance premium partly by the government’s
contribution (derived largely from payroll taxes) and partly from
their own income and savings.
However, Senate Bill
Section 3209 and House Bill Section 104 empower the CMS to refuse to
allow senior citizens access to these private fee-for-service plans
(or any other Medicare Advantage plan) altogether, for any reason or
no reason. The ability of seniors to spend their own money to have
access to plans less likely to ration their care faces potential
elimination under either bill.
People’s Right to Use Their Own Money to Save Their Own Lives
Denial of the right
to spend one’s own money to save one’s own life is not limited to
people on Medicare. Insurance “exchanges” in the bills are meant to
create an organized marketplace in which to buy insurance to help
facilitate competition and the expansion of coverage to more people.
Originally, they were designed to allow comparison shopping among
all insurance plans that provide the basic benefits.
Under Senate Bill
Section 1003 and House Bill Section 104, however, exchanges would be
authorized, in effect, to limit the value of the insurance policies
that Americans using the exchanges may purchase. This 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
Not only will the
exchanges be allowed to exclude policies when government authorities
do not agree with the size of premiums, but they will also be able
to reject plans based on rates they charge in the regular market.
This would create a “chilling effect,” deterring insurers who hope
to be able to compete within the exchange from offering adequately
funded plans in the free market, thus limiting consumers’ access to
adequate and unrationed health care. 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.”
Instead of allowing
Americans themselves to balance the cost of insurance plans with the
benefits and quality they offer when choosing among competing health
plans in the exchanges, their choice would be subject to potentially
drastic restrictions. There would be clear limits on Americans’
ability to choose to spend their own money for health insurance that
they judge will be less likely to deny treatments and otherwise
The Senate bill
creates a powerful “Independent Payment Advisory Board.” This is a
significant step closer to the powerful Federal Reserve Board-like
Federal Health Board envisioned by former Senate Majority Leader Tom
Daschle, President Obama’s original nominee for health czar.
As one of its tasks,
this board is directed to ensure that Medicare spending increases at
a rate significantly below that of medical inflation. To the extent
the CMS projects that growth in Medicare spending would exceed this
target, the board would have to act to reduce the gap by specified
percentages that would vary by year. This gap-reducing would likely
be done by reducing Medicare Advantage benefits, payments to
doctors, and so forth.
board is also directed to make recommendations to “slow the growth”
in private (non-federal) health expenditures, recommendations that
the Department of Health and Human Services (HHS) or other federal
agencies will be permitted to impose on private insurance plans and
health care providers. This will further 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. While the House bill does not contain this board, the cost
savings this type of board promises may earn it a place in the final
Effectiveness” to Deny Coverage
so-called “Comparative Effectiveness Research” makes direct
comparison of health treatments to determine which work best for
which patients and which pose the greatest benefits and harms. Both
the House bill and the Senate bill set up centers tasked with
analyzing this data and making recommendations about what treatments
work, and ultimately, which ones the government will pay for.
The problem is that
there is great danger when the government is 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.” There is language in the
Senate bill that would forbid use of comparative effectiveness data
to deny treatment discriminatorily based on disability, age, or
terminal illness. However, this important language is absent from
the House version. Therefore, there is no guarantee that this
protective provision will be included in any final bill passed by
“Quality” and “Efficiency” Regulations
language in the Senate bill that protects against discriminatory use
of comparative effectiveness research on the basis of age,
disability, or terminal illness has not been made applicable to the
multiple provisions under which the HHS secretary can impose
“quality” and “efficiency” on all health care providers.
Much of the
professional literature advocates the use of “quality of life”
standards that devalue the lives of older people and people with
disabilities in such measures. While there are limits on the use of
comparative effectiveness research to justify denial of treatment
based on quality of life criteria under of the Senate bill, the
quality and efficiency measures are not made subject to these
critically important anti-discrimination protections.
Planning, by One Name or Another
The House and Senate
bills each contain different dangerous Advance Care Planning
provisions, all of which may ultimately end up in the final version.
There had been
considerable public outrage over the Section 1233 advance care
planning provisions in the House bill. This section would fund
recurring voluntary consultations with seniors and could be used to
“nudge” patients toward accepting denial of treatment as a means to
The House bill does
not stop here. Section 240 requires end-of-life planning information
to be disseminated to policy holders by all health plans in the
The Senate bill does
not contain these House provisions, but contains an even broader
provision for “Shared Decisionmaking” under Section 3506. This
provides funding to develop “patient decisionmaking 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.”
The Department of
Health and Human Services will contract with an “entity” that is
supposed to rely on some “broad consensus” to develope the materials
people receive. The long term goal is to standardize the way that
health providers talk with their patients about advance planning
according to the unaccountable “entity’s” recommendations.
There is language
stating the materials are to be “balanced,” but the concern is the
same as 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” the elderly and
those with low “qualities of life” in the direction of rejecting
costly lifesaving treatment.
and other provisions pose the great threat ever to the ability of
those who are ill or injured, people with disabilities, and older
people to obtain essential lifesaving medical treatment.