Senate Majority Leader Harry Reid’s health care bill includes pro-abortion language that mirrors the Capps Amendment from the original House health care bill. The bill:
- Allows the U.S. Secretary of Health and Human Services to require coverage of any and all abortions through the community health insurance (public) option (as long as an accounting mechanism ensures that federal funds do not directly pay for abortions) (Section 1303(a)(1)(C));
- Allows states to require the coverage of all abortions in a community health insurance option in the state (as long as an accounting mechanism ensures that federal funds do not directly pay for abortions) (Section 1303(a)(1)(C)(2));
- Requires that a plan that covers abortion be available in every insurance market (Section 1303(a)(1)(D)(i)(I), (ii)(II));
- Creates new federal subsidies for private insurance plans that include abortion coverage (Section 1303(a)(2)).
As with the Capps amendment, the Senate bill purports to segregate federal funds from the portion of the premiums that individuals pay towards their health insurance. Only the portion that individuals directly pay may go towards abortion. However, this does not change the fact that the bill allows the federal government to subsidize private insurance plans that include abortion coverage and that the public option will ultimately cover elective abortions.
The Senate bill also states that funds provided for school-based clinics cannot be used for abortions (Sec. 399Z-1(f)(1)(b)) and that school-based clinics are defined as not providing abortions (Sec. 399Z-1(a)(3)(C)). However, these provisions do not prohibit abortion referrals.
On December 3, 2009, the Senate passed the Mikulski amendment. The Mikulski amendment, in pertinent part, requires group health plans and health insurance issuers offering group or individual health insurance to provide coverage for and not impose cost sharing requirements on “preventive care” for women “as provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).”
While this amendment does not explicitly require abortion coverage, it also fails to explicitly exclude it. The HRSA could categorize abortion as “preventive care,” and would therefore recommend coverage for abortion by all private plans. The recommendation would force private plans to offer abortion coverage, furthering the abortion lobby’s agenda of mainstreaming abortion as health care.
On December 8, 2009, the Senate voted to table the Nelson-Hatch-Casey amendment that would have stricken the Capps language from the Senate bill and added language mirroring the Stupak-Pitts amendment in the House. For more information on the Nelson-Hatch-Casey amendment, please see the Summary of the Nelson-Hatch-Casey Amendment.
The Senate bill provides:
“No individual health care provider or health care facility may be discriminated against because of a willingness or an unwillingness, if doing so is contrary to the religious or moral beliefs of the provider or facility, to provide, pay for, provide coverage of, or refer for abortions.” (Section 1303(a)(3)).
While H.R. 3962 includes conscience protection that mirrors existing law, i.e., the clear protections for those who oppose abortion provided through the Hyde/Weldon conscience amendment (which must be added to an appropriations bill annually), the Senate language is insufficient. Under section 1303(a)(3), insurance plans cannot refuse to contract with abortion providers, like Planned Parenthood, on the basis that they provide abortions.
The Senate bill also provides that there will be no preemption of federal laws on conscience, willingness or refusal to provide abortions, or discrimination on the basis of willingness or refusal to provide abortions (Section 1303(b)(2)). However, it fails to explicitly protect state laws on the right of conscience.
III. Rationing of Care
The Senate health care reform bill contains several provisions that relate directly to comparative effectiveness research (CER).
Provisions in Bill
Section 6301 of the Reid bill establishes the “Patient-Centered Outcomes Research Institute” (the Institute) to evaluate the risks and benefits of two or more medical treatments, services or items. The Institute will be a private, nonprofit corporation (unlike under the House bill in which the CER entity is housed in the Department of Health and Human Services). The Reid bill authorizes and appropriates funds to a Trust Fund for the Institute. The Institute has the authority to contract out for research, but the Reid bill specifies that contract priority should be awarded to the federal government.
The Institute presents serious concerns that the federal government could misuse results of CER to deny or ration care.
The Reid bill specifies that research conducted by the Institute should be designed to take into account “the potential for differences in the effectiveness of health care treatments, services, and items as used with various subpopulations, such as racial and ethnic minorities, women, age, and groups of individuals with different comorbidities, genetic and molecular sub-types, or quality of life preferences and include members of such subpopulations as subjects in the research.”
In 8(A)(iv) of the section governing the CER Institute, the bill specifies that “The Institute shall ensure that the research findings not be construed as mandates for practice guidelines, coverage recommendations, payment, or policy recommendations.” However, rather than a prohibition against misuse of CER data, this provision merely instructs the Institute to ensure that its findings will not be construed in a certain manner.
Later in the section in part (j), the bill states that “Nothing in this section shall be construed to permit the Institute to mandate coverage, reimbursement, or other policies for any public or private payer.” However, again, this prohibition simply prohibits the Institute from using CER data in a certain manner and does not actually prevent the misuse of CER data by other agents of the federal government.
Once again, in the CER section, the bill states that all “materials, forums and media used to disseminate” CER findings should “not be construed as mandates, guidelines, or recommendations for payment, coverage, or treatment.” This statement however does not prohibit the use of CER findings in determining payment or coverage decisions.
In addition to the above (insufficient) limitations, the bill adds a separate section called “Limitations on Certain Uses of Comparative Effectiveness Research.” Under this section, the Secretary of HHS may not deny coverage solely on the basis of comparative clinical effectiveness research. However, this would not prohibit a federal government agency from using the results of CER in conjunction with other factors, such as cost effectiveness, to deny and ration care.
The section further prohibits the Secretary from using the “evidence or findings from CER in determining coverage, reimbursement, or incentive programs in a manner that treats extending the life of an elderly, disabled, or terminally ill individual as of lower value than extending the life of an individual who is younger, nondisabled, or not terminally ill. It is important to note that this does not prohibit denial of care or use of CER to make reimbursement decisions as long as the decisions apply equally to all individuals.
On the other hand, the subsequent paragraph specifically allows the Secretary to use CER evidence and findings to help extend an individual’s life, when issues such as the individual’s age, disability, or terminal illness are present. In addition, the Secretary may not use the findings to “preclude”, or “discourage” an individual’s choice of health care treatment.
Finally, the bill specifies that the Institute “shall not develop or employ a dollars-per-quality adjusted life year (or similar measure that discounts the value of a life because of an individual’s disability) as a threshold to establish what type of health care is cost effective or recommended. The Secretary shall not utilize such an adjusted life year (or such a similar measure) as a threshold to determine coverage, reimbursement, or incentive programs.”
Taken as a whole, AUL remains concerned that CER findings could be used to deny or ration health care, and will continue to closely monitor the issue.
On Dec 1, 2009, Senator Mikulski (D-MD) offered an amendment which would expand the authority of the federal government to further impose health decisions on patients and doctors. The Mikulski amendment adds a broad category of care ““ women’s health ““ over which a government-run entity (this time the Health Resources and Services Administration (HRSA)) could exercise authority. Under the Mikulski amendment, HRSA would have the authority to establish mandatory preventive care services for women which would become requirements for all private health plans. While having preventive health care for women is a great end, having a government bureaucracy rather than a patient’s own physician determine the path to preventive care is the wrong means. On December 3, 2009, the amendment was added to the Senate bill by a vote of 61-39.
As an answer to the Mikulski amendment, Senator Murkowski (R-AK) offered her own amendment on Dec. 2, 2009. The Murkowski amendment would also ensure that women receive preventive health services, but authorizes physicians, rather than the government or an insurance company to determine which preventive services are appropriate. Further, the Murkowski amendment also addresses the larger concern of misuse of comparative effectiveness data. The amendment explicitly prohibits the government from using data obtained from the conduct of comparative effectiveness research to deny coverage of an item or service under either private or government-run insurance. On December 3, 2009, the Murkowski amendment was defeated by a vote of 41-59.
IV. Assisted Suicide and Euthanasia
The Senate bill includes a prohibition on discrimination against health care providers who do not want to participate in assisted suicide. The bill provides that the federal government, any state or local government, any health care provider that receives federal dollars under this act, or any health plan created under this act:
“may not subject an individual or institutional health care entity to discrimination on the basis that the entity does not provide any health care item or service furnished for the purpose of causing, or for the purpose of assisting in causing, the death of any individual, such as by assisted suicide, euthanasia, or mercy killing.”
This is a positive provision. However, its effect should not be overstated. The provision prohibits discrimination against health care providers on the basis that they refuse to conduct an activity that is illegal in all but two states. In the vast majority of states it should be clear that such discrimination is prohibited, because the underlying activity is prohibited.
Conscience protections for health care providers in states that have legalized assisted suicide and euthanasia are necessary, but they only partially address the end-of-life concerns in health care reform legislation. Even where states have legalized assisted suicide or euthanasia, the practices are not health care and their funding and promotion should be explicitly prohibited in any federal health care legislation. The Senate bill lacks that clear prohibition.
Section 1323 (F) raises another concern. The provision prohibits a community health insurance option from “limiting access to end of life care.” Protecting access to true care for those at the end-of-life is commendable. However, the section does not define “end of life care.” Without a prohibition on federal funding of assisted suicide and a clear definition of assisted suicide and euthanasia, this provision may be interpreted to require insurance to provide “access” to these practices in states that legally consider them “end of life care.”
“End of life care” must be defined to exclude assisted suicide and euthanasia. Furthermore, assisted suicide should be clearly defined to avoid the same loophole that exists in the bill passed by the House (in Washington and Oregon a prohibition on funding or promoting “assisted suicide” is ineffective because both states’ laws define what they have legalized to be something other than assisted suicide). The Senate bill needs to explicitly prohibit the promotion of, and use of federal dollars for, the practice of intentionally causing or assisting in causing death.