Obama's Death Panel: A Double Dose of Anti-Constitutional Outrages

Obamacare's death panel, a.k.a. the Independent Payment Advisory Board (IPAB), is a constitutional travesty:

The point of PPACA [Obamacare] is cost containment. This supposedly depends on the Independent Payment Advisory Board. The IPAB, which is a perfect expression of the progressive mind, is to be composed of 15 presidential appointees empowered to reduce Medicare spending - which is 13 percent of federal spending - to certain stipulated targets. IPAB is to do this by making "proposals" or "recommendations" to limit costs by limiting reimbursements to doctors. This, inevitably, will limit available treatments - and access to care when physicians leave the Medicare system.

The PPACA repeatedly refers to any IPAB proposal as a "legislative proposal" and speaks of "the legislation introduced" by the IPAB. Each proposal automatically becomes law unless Congress passes a measure cutting medical spending as much as IPAB would.

This is a travesty of lawmaking: An executive branch agency makes laws unless Congress enacts legislation to achieve the executive agency's aim.

And it gets worse. Any resolution to abolish the IPAB must pass both houses of Congress. And no such resolution can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. And if passed, it cannot take effect until 2020. It is transparently designed to permanently entrench IPAB - never mind the principle that one Congress cannot by statute bind another Congress from altering that statute.

...the IPAB is doubly anti-constitutional. It derogates the powers of Congress. And it ignores the separation of powers: It is an executive agency, its members appointed by the president, exercising legislative powers over which neither Congress nor the judiciary can exercise proper control.

[emphasis added]

Note that the author, George Will, assumes that physicians will be leaving the system en masse. In my humble opinion, he is correct in doing so.

In all the excitement over Anthony's Weiner, this important piece by George Will has been largely overlooked. Go read the rest and share it with your friends.

Obama's End-of-Life Agenda

Let them eat painkillers!

Do you know your DNR status? You should. So why are Obama & Co. sneaking around behind your back get your doctor to bring it up?

Background:

To reduce the controversy surrounding the Democrats' health care legislation, section 1233 was removed. Section 1233 would have provided for financial compensation for end-of-life counseling. According to the New York Times, Section 1233 is making a comeback via Obama's bureaucratic machine:

Under the new policy, outlined in a Medicare regulation, the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment.

Congressional supporters of the new policy, though pleased, have kept quiet. They fear provoking another furor like the one in 2009 when Republicans seized on the idea of end-of-life counseling to argue that the Democrats’ bill would allow the government to cut off care for the critically ill.

The full text of Section 1233 is here.

By default, you get a "full code" if you haven't specified otherwise. That means that in an emergency, anything that can be done will be done. All aggressive, invasive and heroic options are on the table.

At the other end of the spectrum, a DNR (Do Not Resuscitate) order means that a patent does not want aggressive forms of life-saving intervention such as CPR, mechanical ventilation (life support) or defibrillation/cardioversion.

If you are of advanced age, or if you are in very poor health, you might prefer a DNR order ― and that's where end-of-life counseling is appropriate. You can talk with your physician (or under Obama's plan, a nurse or a physician's assistant) and sort the issues out in advance.

The complexities of a real-world medical emergency can render end-of-life plans or "advance care planning" perfectly useless, but a discussion with your physician on these issues can be very productive.

So why won't the Obama administration address this issue openly? Why hide behind a thousand layers of bureaucratic opacity? Perhaps it is because the implementation of Obama's end-of-life agenda raises some difficult questions:

• Is compensation specifically for end-of-life counseling necessary? If so, why? Physicians can bill for general counseling already... Why is there a fierce urgency to single out this issue?
• Will patients and their families be adequately educated on the reversibility of DNR orders?
• Does the government have a conflict of interest in this matter? (Saving money with more DNR orders).

Dying quickly!

Where are the potential conflicts of interest?

Ed Morrissey:

It also appears to make this a voluntary conversation (at least for now), one the patient can decline without any repercussions.

There is, however, something at least vaguely disturbing about a government incentivizing doctors to [provide end-of-life counseling] as part of an expansive regulatory program that has, as one of its primary goals, cost reduction.

I would point out that the language of 1233 appears to be written to begin the process of making end-of-life counseling mandatory for physicians:

Physician's Quality Reporting Initiative...

...the Secretary shall include quality measures on end of life care and advanced care planning that have been adopted... Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment.

What is the Physician's Quality Reporting Initiative (PQRI)? Big brother explains:

The 2006 Tax Relief and Health Care Act required the establishment of a physician quality reporting system, including an incentive payment for eligible professionals who satisfactorily report data on quality measures for covered professional services...

For many physicians, because of the way these funds are filtered through hospitals, these "incentives" take on all the characteristics of a mandate. The coercive quality of this initiative is expected to increase over time.

Obama's end-of-life agenda turned out to be too controversial to implement under the glaring light of the legislative process, so it's being sneaked in through the murky channels of unchecked bureaucratic power. As usual, William Jacobson gets to the heart of the matter:

Procedurally, we all should care. This is a textbook example of what I have been warning. Obamacare simply is the infrastructure. The details and the demons will be worked out in regulations.

The fact that such a controversial change was kept quiet for so long, and that the Obama administration took steps to keep it quiet, is most troublesome of all.

Defunding is the only option at this point, because the regulators cannot be trusted.

Nibbling away at the edges of ObamaCare will never suffice. Repeal it!

Discussion: Memeorandum

X-posted

Update:

Nick Rowe asks some important questions:

As conservatives and libertarians, most of us want Medicare and Medicaid eliminated or, at least, curtailed. So why are we attacking Obama and the Demon Rats on the very rationing of health care that we ourselves would impose? Just because it is politically convenient at the moment?

As conservatives and libertarians we don't approve of central planning or bureaucratic restrictions on the consumption of goods and services. That's one of the many problems with so-called "death" panels, arbitrary quality of life scores, and other artificial rationing mechanisms.

Medicare resources should be allocated carefully. But as a proponent of free-market mechanisms, I would prefer to see those decisions made by individual health care consumers, rather than by politicians and bureaucrats. A Medicare voucher program could play a role in that.

Problems created by market distortions aren't solved by more market distortions. Providing government-financed incentives for physicians to prompt their patients to choose minimal end-of-life health care is just another market distortion that has the potential to create all kinds of moral hazards.

Physicians should receive compensation for any service that is valued by their patients, including counseling on any health care question. But is counseling on end-of-life care somehow more valuable to patients than counseling on any other issue?

Should patients and physicians be left alone to decide how their scarce time together will be spent, or do bureaucrats need to use carrots and sticks to get us moving in the right direction?

Should we blanket the population with end-of-life counseling, or should the advice and education be targeted? Should end-of-life counseling crowd out counseling on diet, exercise, tobacco cessation and proper use of medications... or should counseling on all these topics receive equal compensation?

How will these decisions be made?

If we ration time in the doctor's office based on incentives created by the Department of Health and Human services, will time be spent in the best interests of patients or in the best interests of Uncle Sam?

No Health Care For You!

The Democrats' buddies at the New York Times are now singing the virtues of bureaucratic rationing and health care denial panels via the Federal Government:

The federal government is now starting to build the institutions that will try to reduce the soaring growth of health care costs. There will be a group to compare the effectiveness of different treatments, a so-called Medicare innovation center and a Medicare oversight board that can set payment rates...

So figuring out how we can say no may be the single toughest and most important task facing the people who will be in charge of carrying out reform. “Being able to say no,” Dr. Alan Garber of Stanford says, “is the heart of the issue.”

...It’s easy to come up with arguments for why we need to do so. Above all, we don’t have a choice. Giving hospitals and drug makers a blank check will bankrupt Medicare.

Well there you go...we don't have a choice. The Federal Government must make the life-and-death decisions for you.

But wait a minute! Didn't the left-wingers say that health care is a right?

Now that ObamaCare is law, I guess the Democrats will become known as the party of "no."

No health care for you!

Discussion: Memeorandum

It's True: Democrats Want to Let You Die

I've been careful to avoid inflammatory "death panel" rhetoric. And I hesitated to post the video above, because when I first saw it, I questioned its authenticity. But it is legitimate, and it is important, and it's not a joke. Here's the transcript courtesy of the Wall Street Journal:

What an Honest President Would Say

I will actually give you a speech made up entirely--almost at the spur of the moment, of what a candidate for president would say if that candidate did not care about becoming president. In other words, this is what the truth is, and a candidate will never say, but what candidates should say if we were in a kind of democracy where citizens were honored in terms of their practice of citizenship, and they were educated in terms of what the issues were, and they could separate myth from reality in terms of what candidates would tell them:

"Thank you so much for coming this afternoon. I'm so glad to see you, and I would like to be president. Let me tell you a few things on health care. Look, we have the only health-care system in the world that is designed to avoid sick people. [laughter] That's true, and what I'm going to do is I am going to try to reorganize it to be more amenable to treating sick people. But that means you--particularly you young people, particularly you young, healthy people--you're going to have to pay more. [applause] Thank you.

"And by the way, we are going to have to--if you're very old, we're not going to give you all that technology and all those drugs for the last couple of years of your life to keep you maybe going for another couple of months. It's too expensive, so we're going to let you die. [applause]

"Also, I'm going to use the bargaining leverage of the federal government in terms of Medicare, Medicaid--we already have a lot of bargaining leverage--to force drug companies and insurance companies and medical suppliers to reduce their costs. But that means less innovation, and that means less new products and less new drugs on the market, which means you are probably not going to live that much longer than your parents. [applause] Thank you."

— A speech that Robert Reich, who served as President Clinton's labor secretary, delivered in 2007.

Discussion: LCR

More

The Wall Street Journal: 'We're Going to Let You Die.' Who said it? Hint: It wasn't Sarah Palin.

Newsbusters: Robert Reich Reveals Brutal Health Care Truths; MSM Snores

MUST READ: The Senate Finance Health Bill Has No Clothes

Free-Market Death Panels

Liberals give themselves a big pat on the back when they point out the inconveniences and imperfections of the free market:

"You don't like government bureaucrats? Private health insurance companies have bureaucrats, too."

"You don't want rationing? Well, private insurance companies ration by denying claims."

"You're afraid of Federal death panels? Private companies have their own death panels. They deny treatment and people die!"

Sorry, but these arguments don't work for me. I can't ignore the fact that the Federal Government is infinitely more powerful and belligerent than any single private insurance company.

I can't ignore the fact that there is only one Federal Government from which to choose. If the Federal Government becomes abusive, I don't have 1,300 other Federal Governments competing for my future business.

I can't ignore the fact that when governments are entrusted with health care, they tend to crush the private alternatives, create shortages and punish those who seek refuge elsewhere.

If we give the Federal Government the power to squeeze out the private insurance companies (whether we give it the power to do so immediately or over time), the health care freedom we now take for granted will probably be lost forever.

More

Death Panels: The Freedom Lover's Worst Nightmare

Death Panels: The Government Lover's Worst Nightmare

British Health Care: A Pregnant Woman's Nightmare