Despite Stupak, Rationing and Assisted Suicide Remain in House Health Care Bill

Bioethics   |   Steven Ertelt   |   Nov 25, 2009   |   9:00AM   |   WASHINGTON, DC

Despite Stupak, Rationing and Assisted Suicide Remain in House Health Care Bill

by Anna Franzonello
November 25, 2009 Note: Anna Franzonello is a staff attorney with Americans United for Life, a pro-life legal group involved in assessing legislation on the federal and state levels.

Even with the inclusion of the Stupak-Pitts amendment barring federal funding of abortion in the health care reform bill passed by the House, H.R. 3962, additional pro-life concerns remain.

Rationing of Care

H.R. 3962 includes Comparative Effectiveness Research (CER) provisions. It is laudable that CER attempts to identify, evaluate and promote medical best practices–across the spectrum of procedures, devices and drugs. But CER also presents very serious concerns regarding the possible denial of care (for instance, CER could result in a denial of care if that care is deemed not “cost effective”).

While the CER provisions of the original House health care reform bill, H.R. 3200, contained troubling provisions, the bill was amended to provide acceptable safeguards. The revised section now states:

Sec. 1401 (j) RESEARCH MAY NOT BE USED TO DENY OR RATION CARE. Nothing in this section shall be construed to make more stringent or otherwise change the standards or requirements for coverage of items and services under this Act.

This broad language and explicit prohibition on use of CER to deny or ration care is essential. AUL will continue to monitor the status of CER provisions, both in the Senate bill and if/when a final health care bill moves forward, to make sure this language is not stripped or weakened.

AUL remains concerned that other provisions of H.R. 3962 interfere with the doctor-patient relationship and could lead to the rationing of care.

One troubling provision is Sec. 1159, which commissions the Institute of Medicine to develop new Medicare reimbursement standards to create incentives for “high value care.”

Unlike the current framework in which Congress proposes changes to the Medicare payment system, Sec. 1159 hands the authority to make changes in Medicare reimbursement to an unelected body that will have the ultimate say in what care is reimbursed under Medicare, unless Congress acts within 145 days of any new proposal to veto the change. Under Sec.1159, mere Congressional inaction can result in new Medicare law.

This opens the door to changes in the Medicare reimbursement rate that fail to take into consideration the best outcomes for the disabled, ill, or elderly. Congress is less accountable under this framework, and Medicare beneficiaries will be more dependent on an unelected bureaucracy.

Assisted Suicide & Euthanasia

H.R. 3962 does not contain any assurance that assisted suicide and euthanasia will not be funded. The bill affords no conscience protection for health care providers regarding end-of-life concerns. Moreover, it contains a provision that allows for the promotion of assisted suicide.

H.R. 3962 Sec. 240 requires every health insurance company participating in the Exchange to make advanced directives available. A serious concern with the mandate of advance directives is that they may be used for the promotion or encouragement of assisted suicide. As the bill stands now, these mandated directives can be used to promote what is commonly understood as “assisted suicide” in Oregon and Washington.

At first glance it might seem that H.R. 3962 guards against this. Sec. 240 (a)(3) & (b)(3) prohibit “promot[ing] suicide, assisted suicide, euthanasia, or mercy killing.” And (d) adds that “suicide, assisted suicide, euthanasia, or mercy killing” shall not be listed as options on advance directives.

However, because the bill does not define “assisted suicide,” in Oregon and Washington that language would be ineffective. Both states have legalized what is commonly understood to be “assisted suicide.” But both states have explicitly defined in their “Death with Dignity” laws that what they allow is not assisted suicide.

Sec. 3.14 of the Oregon law states that a physician’s aid in purposely ending the life of the patient as allowed by the statute “shall not, for any purpose, constitute suicide, assisted suicide, mercy killing or homicide, under the law.”

Sec. 18 of the Washington law similarly states that what is allowed does not, “for any purpose, constitute suicide, assisted suicide, mercy killing, or homicide, under the law.” It requires that “State reports shall not refer to practice under this chapter as “suicide” or “assisted suicide.” … [S]tate reports shall refer to practice under this chapter as obtaining and self-administering life-ending medication.”

Therefore, in Washington and Oregon – and any state that may similarly redefine assisted suicide – advanced directives can be used to promote assisted suicide.

An amendment to the original House health care bill, H.R. 3200, would have prevented this loophole. It clarified that these directives could not be used to promote “active hastening of death.” However, that clarifying language was not included in H.R. 3962.

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