Analysis of Dangerous Elements Present in House Health Care Restructuring Bill - H.R. 3962

Analysis of Dangerous Elements Present in House Health Care Restructuring Bill - H.R. 3962

 

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.

On November 7th, the House passed the “Affordable Healthcare for America Act,” (click here) by a vote of 220 -215. National Right to Life sent a letter on the night of the vote to members of the House prior to passage of the House Health Restructuring Bill. The full letter is available here . Now, with members of Congress back to work, Democratic leadership is considering bypassing a formal conference committee in resolving health care legislation differences between the House and Senate.

Limiting Senior Citizens’ Right to Use Their Own Money to Save Their Own Lives

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.

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.

Dangerously, H.R. 3962 limits the right of seniors to spend their own money to save their own lives. Presently, the Medicare statute prevents the government from second-guessing or imposing limits on the premiums for private fee-for-service plans, allowing beneficiaries to balance cost, benefit, and affordability in making their own decisions whether to purchase such plans. Section 1175 amends that provision so as to empower the federal government to exclude from competing in Medicare Advantage those plans whose bids it does not like.

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.

Limiting Exchange Users’ Right to Use Their Own Money to Save Their Own Lives

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 premium increases.”vi

Originally, state-based "exchanges" were designed to allow comparison shopping among all insurance plans that provided the basic benefits. Under Section 104, 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.”

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.

Utilizing Comparative Effectiveness to Deny Coverage

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 2401 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 1401, 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

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 1233 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,” 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.”

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….”

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."

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]

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.”

Funding Assisted Suicide

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.

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.” 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 (click here), as well as today (click here). H.R. 3962 contains provisions that threaten these lives.

Click here for References.

Source: The Robert Powell Center for Medical Ethics
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