Communications Department

Analysis of the Senate Version of the Obama Health Care Law

Dec 23, 2009 | Medical Ethics

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

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 . 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 . 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.


[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”].

Categories: Medical Ethics