Junkfood Science: How does healthcare reform fit with your values and ethics?

August 30, 2009

How does healthcare reform fit with your values and ethics?

The healthcare reform debate has become so discordant, it’s even been said to be a sign of a larger, irreconcilable ideological abyss growing in our country. In this environment, it can be hard to sort out the endless reports all claiming to debunk the myths surrounding healthcare reform proposals. There is one simple way to tell the difference between reports that are written to support an ideology from those giving us the facts. And increasing numbers of people are figuring out how: Go to the original source and read the healthcare reform legislation being proposed for themselves. It’s a lot harder to convince people that it doesn’t really say what is says when they’ve actually read it.

In truth, there is no easy answer to a perfect healthcare system. Every method of funding and providing healthcare is a struggle to balance access, costs, quality and patients’ rights and, while our healthcare is among the best in the world, all of us can spot areas that need improvement. The controversy comes in accurately identifying the problems and in how to address them: tackle what’s broken or have a massive government-centric overhaul. Healthcare reform to one means something very different to another. And ideological-based solutions are not the same as the consequences that play out in real life.

To sort out the proposals to decide what adheres to our own values and ethics starts with looking at what is being proposed and thinking about what “ethical” means to us.

In defining medical ethics, the guiding ethical principle that people around the world universally support is that patients should be the ones to make the most important decisions about their own bodies and health. It was born of devastating consequences and became part of the Nuremberg Code adopted internationally in 1947. It’s the basis for established medical ethical practices, such as informed consent, full disclosures and the rights of patients to refuse care or to participate in human experimentation. People no longer support having someone else, even a doctor, decide what’s best for them.

So, it might be helpful to examine healthcare reform proposals and how they will play out in real life and compare them to the fundamental guiding ethical principle of preserving people’s personal control over their own healthcare choices.

While there are variations of reform legislation, most are patterned after HR 3200, the one supported by the White House. Here’s the link to the Government Printing Office's authentic text of HR 3200. We don’t need to take anyone else’s word for what it does or doesn’t say. We can read it for ourselves. In doing so, we quickly see that “health care choices” means something very different to the government than it means to most of us. Follow along with a few examples:

Choice of plans

Section 141. HEALTH CHOICES ADMINISTRATION; HEALTH CHOICES COMMISSIONER (begins on page 41). — This establishes a new executive branch of the U.S. Government called the Health Choices Administration. It would be headed by a Health Choices Commissioner appointed by the President and confirmed by the Senate.

SEC. 142. DUTIES AND AUTHORITY OF COMMISSIONER. — The Commissioner would be given the power to decide the standards for qualifying health care plans, including the enforcement of its standards “in coordination with State insurance regulators and the Secretaries of Labor and the Treasury.” The standards the Commissioner would determine include premiums, how much providers are paid, covered treatments, drug coverage and administrative procedures.

As Sue Blevins, Editor of Health Freedom Watch explained in the latest newsletter, the Health Exchange Commissioner would have control over more than $700 billion federal dollars. “However, the Federal Acquisition Regulations (to promote competition and keep contractors ethical) would NOT apply to contracts between the Commissioner and insurance companies offering plans in the exchange.”

The Commissioner is given authority to enforce compliance with participation in a plan with qualified benefits, with remedies that include “civil money penalties” and “suspension of enrollment of individuals…until the Commissioner is satisfied that the basis for such determination has been corrected and is not likely to recur.” It can also suspend payment to providers participating in a nonqualifying plan.

The legislation defines “quality” later in Section 2410, as pay-for-performance measures, adherence to best practices established by the director and which incorporate electronic medical records that “provide for the dissemination of information and reporting.”

SEC. 201. ESTABLISHMENT OF HEALTH INSURANCE EXCHANGE; OUTLINE OF DUTIES; DEFINITIONS (begins on page 72). — This establishes a Health Insurance Exchange under the direction of the Commissioner. It would have full control over what health plans we can legally have. It would determine the “variety of choices” to be part of quality health insurance coverage, different levels of required benefits, affordability and access of individual and employers.

The Commissioner “shall establish standards for, accept bids from, and negotiate and enter into contracts with” entities wanting to offer qualifying plans through the Health Insurance Exchange.

SEC. 202. EXCHANGE-ELIGIBLE INDIVIDUALS AND EMPLOYERS (begins on page 73). — Unless people are enrolled in a Commissioner-determined qualified plan or other acceptable coverage, all eligible individuals are to be enrolled into a plan offered through the Health Insurance Exchange. “Other Acceptable Coverage” is defined on page 76 as being other government qualified health plans, Medicare or Medicaid, a member of the armed forces (including Tricare) or coverage under the veteran’s healthcare. In other words, health coverage and covered benefits for everyone would be determined by the government.

As described in SEC 102. PROTECTING THE CHOICE TO KEEP CURRENT COVERAGE (beginning on page 16), individual health insurance coverage is grandfathered in and current group health plans are also “Acceptable Coverage” only as long as “the issuer does not change any of its terms or conditions, including benefits and cost-sharing, from those in effect as of the day before the first day of Y1 [January 1, 2013].” An employer-based plan must meet the same requirements as apply to a qualified health benefits plan, including the essential benefit package requirements. After January 1, 2013, all individuals must purchase health insurance from the government-run national health insurance exchange.

SEC. 204. CONTRACTS FOR THE OFFERING OF EXCHANGE PARTICIPATING HEALTH BENEFITS PLANS (beginning on page 88). — Entities offering plans allowed to participate in the Health Insurance Exchange must be licensed by the state and “shall provide for the reporting of such information as the Commissioner may specify…” The Commissioner will also determine what makes an acceptable provider network and enforce those standards. The Commissioner also “shall collect data for purposes of carrying out the Commissioner’s duties, including for purposes of promoting quality…”

How is the legislation comparing so far with the ethical principle of preserving individuals' control over healthcare choices?

Choice of providers

SEC. 115. ENSURING ADEQUACY OF PROVIDER NETWORKS (page 24) — The Commissioner is awarded the authority to establish the adequacy of network providers in terms of the services and treatments they may provide and their costs.

As ENFORCEMENT OF NETWORK ADEQUACY on page 92 describes, an individual who is enrolled in a plan or receives services from a provider that is not within such networks will be required to pay the same costs as if services were provided by a doctor within the government network. In other words, people will no longer be allowed to independently contract with a provider and pay them an agreed upon price for their services. The ability of doctors to have their own practices is virtually eliminated. The Commissioner may terminate a contract with any healthplan found to be noncompliant and to include providers who provide care outside the standards and costs established by the Commissioner.

Under OVERSIGHT AND ENFORCEMENT RESPONSIBILITIES, the “Commissioner shall establish processes, in coordination with State insurance regulators, to oversee, monitor and enforce applicable requirements… of entities offering Exchange-participating health benefits plans and such plans, including the marketing of such plans.” The Commissioner may terminate any contract if such entity fails to comply with any requirement.

Choice of benefits

SEC. 123. HEALTH BENEFITS ADVISORY COMMITTEE. — The benefits and premiums for qualified coverage would be established by a “private-public advisory committee” chaired by the Surgeon General called the “Health Benefits Advisory Committee.”

SEC. 203. BENEFITS PACKAGE LEVELS (beginning on page 84). — “The Commissioner shall specify the benefits to be made available under Exchange-participating health benefits plans during each plan year.” It will also enter into contracts with an entity offering a qualifying plan if it offers only one basic plan for the service area and if it offers an enhanced plan, it “may offer one premium plan for such area.” In other words, the Commissioner will restrict options available in each service area.

Section 122. ESSENTIAL BENEFITS PACKAGE DEFINED (begins on page 26). — The legislation lists the mandatory benefits a plan must include to be qualified, including prescription drugs, mental health and substance use disorder services, preventive wellness services, maternity care and other coverage, regardless of if they are needed or desired by the patients or of their efficacy and cost effectiveness. It sets essential minimum benefits at 70% of actuarial value, making high-deductible plans or traditional insurance — where people pay can pay for routine care themselves and purchase insurance just to cover major medical events — illegal.

Only managed care plans with preventive wellness interventions will be permitted. As SEC. 1711. REQUIRED COVERAGE OF PREVENTIVE SERVICES on page 764 explains, preventive services are required covered benefits.

SEC. 3121. NATIONAL PREVENTION AND WELLNESS STRATEGY (beginning on page 934). — As this legislation describes, key to healthcare reform mandates is a national strategy prioritizing preventive wellness activities headed by the Secretary. Under TITLE XXXI — PREVENTION AND WELLNESS (page 931+), the legislation funds $2.4 billion next year, increasing annually to $4.6 billion for fiscal year 2018 of taxpayer dollars to go for preventive wellness programs and infrastructures. **

Choice to opt-out or self insure

SEC. 311. HEALTH COVERAGE PARTICIPATION REQUIREMENTS (beginning on page 143 under Title III). — This section requires employers to offer a plan that qualifies according to the Health Insurance Exchange and to automatically enroll employees into the plan, unless the employer opts out.

SEC. 321. SATISFACTION OF HEALTH COVERAGE PARTICIPATION REQUIREMENTS UNDER THE EMPLOYEE RETIREMENT INCOME SECURITY ACT (beginning on page 152). — The Secretary is authorized to conduct regular audits of employers and plans to discover noncompliance with health coverage participation requirements and to report findings of noncompliance “to the Secretary of the Treasury and the Health Choices Commissioner. The Secretary shall take such timely enforcement action as appropriate to achieve compliance.

SEC. 410. TAX ON INDIVIDUALS WITHOUT ACCEPTABLE HEALTH CARE COVERAGE (page 167+). — The Internal Revenue Code is amended to impose a tax on anyone caught without acceptable coverage.

SEC. 431. DISCLOSURES TO CARRY OUT HEALTH INSURANCE EXCHANGE SUBSIDIES. — This amends the Internal Revenue Code of 1986 to add a mandate for “disclosure of return information to carry out Health Insurance Exchange subsidies. The IRS “shall disclose to officers and employees of the Health Choices Administration or such state-based health insurance exchange, as the case may be, return information of any taxpayer is relevant in determining any affordability credit…”

SEC. 1801. DISCLOSURES TO FACILITATE IDENTIFICATION OF INDIVIDUALS LIKELY TO BE INELIGIBLE FOR THE LOW-INCOME ASSISTANCE… on page 819 also requires the Social Security Administration to disclose all return information to the Commissioner, benefits and retirement payments, “unearned income information and income information of the taxpayer from partnerships, trusts, estates, and subchapter S corporations for the applicable year,” and filing status, number of dependents, income from farming and from self-employment, if the individual is married and if the spouse filed a separate return.

How is the legislation comparing so far with the ethical principle of preserving individuals' control over healthcare choices?

Choice for coverage beyond government plan

SEC. 208. OPTIONAL OPERATION OF STATE-BASED HEALTH INSURANCE EXCHANGES (beginning on page 111). — This section gives the Commissioner control over any state-based Health Insurance Exchange, to approve them and determine requirements for approval, and to shut them down for noncompliance.

TERMINATION; HEALTH INSURANCE EXCHANGE RESUMPTION OF FUNCTIONS on page 114 explains, “in lieu of terminating such approval, the Commissioner may temporarily assume some or all functions of the State based Health Insurance Exchange until such time as the Commissioner determines the State-based Health Insurance Exchange meets such requirements.”

The Commissioner also retains enforcement authority and to specify the functions any state run insurance change may not provide. As Blevins explains, “state-mandated benefits (coverage beyond the essential benefits package) could only continue if states reimburse the Commissioner for continuing their regulatory regimes.” Any pretense that state co-ops could really be independent is unsupported in this legislation.

Choice over personal finances

The Commissioner would also be empowered to determine what each person can afford and to administer “individual affordability credits, including determination of eligibility for such credits.” The IRS tax code would be used to enforce compliance.

SEC. 242. AFFORDABLE CREDIT ELIGIBLE INDIVIDUAL (beginning on page 132). — The legislation defines any eligible individual to mean anyone enrolled under a plan in the Health Insurance Exchange, with a family income below 400% of the Federal poverty level (for example, $88,200 for a family of four in Virginia) and not Medicaid eligible.

SEC. 243. AFFORDABLE PREMIUM CREDIT (beginning on page 135). — The government will determine what premium individuals can afford to pay. As PROGRAM INTEGRITY; INCOME VERIFICATION PROCEDURES on page 139 explains, “the Commissioner shall take such steps as may be appropriate to ensure the accuracy of determinations and redeterminations under this subtitle.” This includes the Secretary of the Treasury disclosing to the Commissioner all such information as may be permitted to verify income, family size and composition. Also, the “Commissioner shall establish rules requiring an individual to report…significant changes in such income (including a significant change in family composition) to the Commissioner and requiring the substitution of such income for the income otherwise applicable.”

How is the legislation comparing so far with the ethical principle of preserving individual's control over healthcare choices? To preserve the appearance of freedom of choice, some have suggested that the public option be taken out of the legislation or repackaged as health insurance co-ops. But both suggestions are Trojan horses and ignore the underlying threats to people’s autonomy over their bodies, livelihoods, and healthcare choices that are found throughout legislation.

Simply eliminating the public option — Section 221 (page 116+) that establishes a public option, gives the Secretary unlimited authority to set payment rates and services and to determine what is sufficient and efficient care, exempts the public plan from review or recourse through the courts, authorizes the Secretary to devise policies and payment mechanisms under the medical home model to manage or prevent chronic illness and promote managed care pay-for-performance (“quality”) measures, and gives the Secretary the authority to establish the conditions and the pay for healthcare providers — won’t remove the fundamental concerns about healthcare reform legislation.

It does not eliminate the fact that the federal government, not individuals, would be given control over personal health care choices.

© 2009 Sandy Szwarc

** The proposed solution for reducing healthcare costs is foremost to put the nation on a weight loss diet. As the President said last week to the Organizing American National Health Care Forum:

If we went back to the obesity rates that existed back in the 1980s, the Medicare system over several years could save as much as a trillion dollars. I mean, that's how much our obesity rate has made a difference in terms of diabetes and heart failure and all sorts of preventable diseases. And so what we want to do is to, first of all, in health care reform, in the legislation, encourage prevention and wellness programs by saying that any health care plan out there has to provide for free checkups, prevention, and wellness care. That's got to be part of your deal, part of your package. And that way nobody has got an excuse not to go in and get a checkup.

It’s similar to the speech he gave to the American Medical Association on June 15th (covered here), in which he claimed preventive health screenings, mammograms and management of health risk factors, like a “Healthy Measures” program, can prevent the costliest chronic diseases — cancer, cardiovascular disease, diabetes, lung disease and strokes. Most important of all under his plans is ridding the country of obesity. “It means going for a run or hitting the gym, and raising our children to step away from the video games and spend more time playing outside,” he said. “It also means cutting down on all the junk food that's fueling an epidemic of obesity which puts far too many Americans, young and old, at greater risk of costly, chronic conditions,” he said.

As HHS Secretary Kathleen Sebelius said at last month’s Weight of the Nation, the government’s preventive wellness policies to transform our healthcare system plan “to put the nation on a weight loss diet.” At the heart of President Obama’s healthcare reform is fighting obesity, she said, which is why the government has made preventive wellness one of its top priorities.

As covered previously, the long-term effectiveness of weight loss diets has yet to be supported after nearly half a century of research. And beliefs of cost savings from preventive wellness and treating risk factors and incentivizing healthy lifestyles, along with integrated electronic medical records, have also failed to be supported in the medical literature. The cost-savings argument for most health promotion and disease prevention measures cannot be supported “because the evidence is simply not there,” concluded a review of the research by the Canadian Health Services Research Foundation based in Ottawa. “An ounce of prevention buys a pound of cure” is a myth, it stated. Benefits of mammograms, for instance, have been repeatedly found in the medical literature to be more controversial than the public realizes, with some expert bodies concluding they fail to be a justifiable use of public funds because of their marginal benefits, substantial harm and significant costs.

The Congressional Budget Office has calculated that healthcare reform legislation, depending on the version, would add $1 to $1.6 trillion to the national debt over the next ten years. Doug Elmendorf, director of the CBO, stated in an August 7th letter that “researchers who have examined the effects of preventive care generally find that the added costs of widespread use of preventive services tend to exceed the savings.”

While the lack of evidence for preventive wellness and treatment of health risk factors has been covered at length at JFS, Charles Krauthammer’s editorial in Investor’s Business Daily last week emphasized the mythology of prevention:

A study in the journal Circulation found that for cardiovascular diseases and diabetes, "if all the recommended prevention activities were applied with 100% success," the prevention would cost almost 10 times as much as the savings, increasing the country's total medical bill by 162%. Elmendorf additionally cites a definitive assessment in the New England Journal of Medicine that reviewed hundreds of studies on preventive care and found that more than 80% of preventive measures added to medical costs...

[Prevention] is not the magic bullet for health care costs…. remember: It's nonsense — empirically demonstrable and CBO-certified.

Commentary: Dr. Obama Plans to Put You on a Diet.

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