By Stuart J. Moskovitz
Once again, there are rumblings of “death panels” in the Affordable Care Act. This happens when a bill is passed as massive as this one that not a single member of Congress read prior to approving it. We are slowly learning of the myriad of difficulties buried in this bill simply because it was jammed down our throats with the goal of not airing it carefully beforehand. But the death panels do not exist.
There are two provisions to which Sarah Palin, Mark Halperin and even Howard Dean have referred as “death panels.” The first, Section 1233, involves counselling (voluntary, not mandatory) of “end of life” provisions. These include Living Wills, Health Advisory Statements, etc., all of which are standard documents every trust and estates attorney prepares for his/her client. There is nothing sinister about these. The second provision involves the Independent Payment Advisory Board whose sole function is to make recommendations regarding ways of cutting Medicare costs in the future. Those recommendations are not self-implementing. They must be submitted to Congress and approved by the President. This means first, there is no review of any individual case. Second, whatever recommendations are made need to be passed as if they were a new law. Oddly, there are so many serious harmful provisions of this Act, it is curious that everyone is fixated on two provisions that are relatively benign.
There are provisions that are not benign that are harmful to this nation and not just to its health care. What is amazing is that while everyone is obsessed with something that is not in the Act, they are totally ignoring a provision of the Act that is as unconstitutional and unAmerican as any provision of any Act in our lifetime. The Act provides in section 3007 for a “value based payment modifier.” This means health professionals get reviewed by the Administration and a calculation is made measuring the average cost for treating a patient for the physician or “group” of doctors versus the “success” of the treatment. It would be difficult to dream of a more subjective measurement so subject to abuse. I stand awestruck by the teachers who support the ACA (having not read it, of course) while screaming that it is not fair to “measure” their performance by the success of their students. This calculation leads to a “mathematical” payment modifier that reduces the payments given by Medicare to each group of health practitioners. But that’s not the bad part.
The bad part is that the Act provides that NOTHING in the process, from the measuring of “success” to the creation of the modifier, to the reduction in payment (or, in theory, bonus), is subject to either administrative review or judicial review. Can you think of any other governmental action that is excluded from the normal administrative or judicial review procedures in our governmental system? How serious is this? Once this goes by without contest, more and more statutes will be passed preventing review of government actions.
Our due process rights guaranteed by the Fifth and Fourteenth amendments of the Constitution will be swiftly eroded. In case you haven’t noticed, in the last five years of this administration, we have lost major parts of our First amendment, Second amendment, Fourth amendment and Fifth amendment rights. Couple this with the vote by the Senate to change century old rules protecting the democratic process and serving as a check to the abuses of the Presidency and you have a fast track to a dictatorship that only five years ago no one would have believed possible in this country. Dictatorships arise often in civilizations where the citizenry is comfortable and believe that such cannot happen in their nation. G-d did not carve out an exception for America. If we don’t care, neither does He.