What is a death panel, anyway?

Does HR 3200 really include death panels, or was it just end-of-life legal counseling with a doctor?
by Rimfrel
(libertarian)
Sunday, August 16, 2009

I have tried googling for a definition of death panel, so as not to bias my thinking with my intuitive concept of the term, but the references I see are either specifically to the Palin/HR 3200 provision on end-of-life counseling, or they talk about panel discussions on the definition of death. So let me propose my own concept.

I have this vision of a room with a couple of tables, behind which sit men with mean faces and military uniforms. These are not Americans, by the way, so this death panel is somewhere else. There are armed guards at the doors, and the doors open, with more guards escorting in a small group of people at gunpoint. One of the officers at the table shuffles some papers and reads off a charge of the people having violated some oppressive rule of the regime, perhaps having published critical articles about men with mean faces and military uniforms. Then the officer tells the people they are all sentenced to death, and the people start crying and cursing as their guards drag them away.

I'll admit I haven't read the entirety of HR 3200, but I haven't seen anything remotely like that scenario. I can believe such death panels happened in Nazi Germany or some oppressed Latin American country. I think it is a tremendous exaggeration to call the end-of-life counseling with a doctor a death panel. Sensitive people might feel pressured to forgo care or, if a patient is in a coma, perhaps the individual named to consider such matters in the patient's Living Will could be pressured to forgo further attempts to extend grandma's life. Abuses of any power can be hypothesized to occur. I don't have a problem with the provision being in the bill, or being removed.

However....the bill does put substantial authority into the government's hands instead of the insurance company's hands. So it is prudent, I think, to verify what powers the government is going to give itself.

From my reading, the bigger danger as far as a death panel comes from the powers of the Health Choices Commissioner (Sec. 203(a)) and the Health Benefits Advisory Committee (Sec. 123(a)&(b)):

Sec. 203(a):

"The Commissioner shall specify the benefits to be made available under Exchange-participating health benefits plans during each plan year..."

Sec. 123(a)):

"There is established a private-public advisory committee which shall be a panel of medical and other experts to be known as the Health Benefits Advisory Committee to recommend covered benefits and essential, enhanced, and premium plans."

Sec 123(b) (1)

"The Health Benefits Advisory Committee shall recommend to the Secretary of Health and Human Services (in this subtitle referred to as the ‘‘Secretary’’) benefit standards (as defined in paragraph (4)), and periodic updates to such standards. In developing such recommendations, the Committee shall take into account innovation in health care and consider how such standards could reduce health disparities."

Covered benefits (Sec 123(b)(4), "including categories of covered treatments, items and services within benefit classes, and cost-sharing"), meaning things like knee replacements and cancer treatments, will be determined by the Secretary of Health and Human Services, the Health Choices Commissioner (to be appointed by the President and confirmed by the Senate), and the Health Benefits Advisory Committee (to be appointed by the President [up to 17 people] and the Comptroller General [9 people], without confirmation). There is obvious opportunity here for the Secretary, Commissioner, and Committee to recommend that some condition not be covered, such as dementia or other category-likely conditions. No one is going to pull the plug on grandma, but they could decide they just aren't going to pay for having her plugged in, at all. But let's assume that the conditions are officially covered. We aren't out of the woods yet.

Title IV, Section 2404, covers the implementation of best practices. It involves changing the Public Health Care Act, by inserting some new sections, including Part D, Section 931(h), which says that in general, "The Director shall enter into voluntary arrangements with health care providers (including hospitals and other health facilities and health practitioners) in a State or region to implement best practices identified or developed under this section." (by the Secretary). The Director is defined in the Public Health Care Act, which I haven't looked up, but I believe the intent is that doctors will be informed of best practices but not required to use them, not even by having payment depend on having used them.

Voluntary guidelines can be ignored. If the doctors don’t agree with the treatments recommended, they will generally be inclined to ignore them. Thus, no cost savings. Perhaps the government plans to incentivize the doctors by paying them more if they use the recommended treatments? That doesn’t sound like it would promote cost savings, even if doctors are all as greedy as the President has implied, so that they use whatever treatment enriches them the most.

So if you have invested money in figuring out how to save money and then the recommendations are ignored, you have lost money. When this happens, what stops the government from taking steps to make the guidelines into requirements? To control costs, of course. To keep the health care financial burden from destroying the economy.

Once the guidelines are requirements, the door is open to the government making recommended treatment guidelines based on political considerations to reduce the number of people in a category that is, shall we say, inconvenient to have around. That would fit the definition of a death panel, I think. It’s more impersonal and more efficient than what the phrase conjures up as a vision, but people would die as a result of the council’s decisions. People would die to save money. Think about that.

The point is that the worst thing about the bill is that it gives government the power and authority to do terrible things. The bill contains fragile protections that could be overruled later with much less fanfare than the current bill has, when people have relaxed, thinking the fight is over. The only real safety is in keeping government out of the insurance business altogether. No Commissioner, Committee, Exchange, best practices recommendations...just you, your doctor, and your insurance company. This doesn't mean there is no useful reform to be had. Coverage of pre-existing conditions and ensured portability are good reforms. Letting people buy insurance across state lines, while I don't think it will help much, is a reasonable choice. Rolling Medicare and Medicaid together and loosening the restrictions so anyone can sign up, and pay income-dependent premiums (so everyone has "skin in the game"), would amount to a public option but that's what Medicare and Medicaid already are.

If my insurance company denies me coverage for some treatment, and I survive, I might be able to find a different insurance company without having to leave the country. Where and how am I going to find another government?  I could sue an insurance company, but am I going to be able to sue the government?

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©2009 Rimfrel, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Sunday, August 16, 2009
Last modified: Sunday, August 16, 2009

The views expressed in this article are those of Rimfrel only and do not represent the views of Nolan Chart, LLC or its affiliates. Rimfrel is solely responsible for the contents of this article and is not an employee or otherwise affiliated with Nolan Chart, LLC in his/her role as a columnist.

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