Mercy forever.

There has been much discussion recently regarding the Health Care Reform Bill, properly known at H.R. 3200 – America’s Affordable Health Choices Act of 2009. There are many pro-life and pro-abortion blogs, e-mails, and articles circulating. Our goal is to help you cut through the rhetoric and provide resources about the issues to help you understand the possible outcomes if H.R. 3200 is enacted.

When it comes to the life issues aspects of H.R. 3200, there are three specific areas of concern for Lutherans:

1. End-of-life concerns
2. Abortion
3. Ethics in the public square

Information on each topic is addressed individually and can be accessed below or by clicking on the appropriate links above.

For each topic, we have attempted to summarize the major objections we, as pro-life Lutherans, have to H.R. 3200. We also provide links to outside sources for more in-depth information from other pro-life, pro-choice, and neutral organizations.

End-of-Life Concerns

Some of the language in H.R. 3200 is of concern because it is ambiguous and undefined. For example, one of the most talked about sections of the bill is Section 1233 – Advance Care Planning Consultation. You may have heard this section called the End-of-Life Consultation section. In reading the legislation, the following information can be discovered:

1. Section 1233 applies only to people on Medicare.
2. The patient is to be informed by the practitioner (a physician or, if a state allows them to sign orders for life-sustaining treatment, a nurse practitioner or physician’s assistant) about “end-of-life services and support, including palliative care and hospice.”
3. The practitioner is required to inform the patient about “advance directives, including living wills and durable powers of attorney.”
4. The patient is given the opportunity to complete an advance directive form if he wishes. There is no requirement for a patient to sign this document.
5. The bill requires mandatory counseling every five years. This counseling also may occur within the five-year period if there is a major change in the patient’s health.

At first glance, the guidelines in Section 1233 are no different from what is already in place when someone is admitted to a hospital. This legislation is not necessarily a bad thing; everyone, no matter what age, should discuss with their families their feelings about life- sustaining treatments before something happens so there is no confusion when a crisis occurs and emotions are elevated; people’s judgment can be clouded during a time of crisis. It is also suggested that everyone have a durable power of attorney document completed prior to going to the hospital.

However, one potential pitfall is that family members may not be present in a doctor’s office when this discussion about end-of-life decisions takes place. That may lead to misunderstanding or a perception of pressure to sign a form. Often patients do not know that they are allowed to bring a document of their own (whether a durable power of attorney or, for example, a “Will to Live” from the National Right to Life Committee).

Another concern is the organization that helped write this particular section of H.R. 3200 and understanding its bias regarding end-of-life issues. Compassion & Choices is an organizational descendent of the Hemlock Society, the pro-assisted suicide and pro-euthanasia organization started by Derek Humphry. On its official blog, the organization states (http://compassionandchoices.org/blog/?p=445):

“Compassion & Choices has worked tirelessly with supportive members of congress (sic) to include in proposed reform legislation a provision requiring Medicare to cover patient consultation with their doctors about end-of-life choice (section 1233 of House Bill 3200)”

The biggest concern may lay in the implementation of Section 1233. What materials will be used? What are the worldviews of the medical professionals who must do this counseling? An example of a potential pitfall would be the document from the U.S. Department of Veterans Affairs called Your Life, Your Choices: Planning for Future Medical Decisions. This document is an aid for the patient to determine how to complete an advance directive.

Although the document attempts to be fair and balanced, it uses the derogative term “vegetable” to described patients who are not responsive to external stimuli. Most of the examples provided in the document ask the patient to place a value on his life based on what he can (or cannot) do rather than talking about the inherent value of the patient’s life. This document is just one example of the materials that could be used in an advanced care planning consultation mandated by Section 1233.

Because the words in Section 1233 leave much in question, many have concerns about the motives behind those words and how the proposed legislation might be put into practice and impact personal end-of-life decisions.

For life-affirming samples of advance directives, please go to:

1. The International Task Force on Euthanasia and Assisted Suicide to get their “Protective Medical Decisions Document”: http://www.internationaltaskforce.org/adneeds.htm.
2. The National Right to Life Committee to get their “Will to Live”: http://www.nrlc.org/MedEthics/WilltoLiveProject.html.

Abortion Concerns and Health Care Reform

Although the word “abortion” does not appear anywhere in H.R. 3200, there is wording that may imply abortion services are to be provided.

For example, in Section 1714 – State Eligibility Options for Family Planning Services, the legislation delineates the eligibility requirements for women who are pregnant and women who are not pregnant to receive taxpayer-funded “family planning services.” The proposed legislation states the following:

“… provide for making medical assistance available to an individual … such medical assistance shall be limited to family planning services and supplies described in 1905(a)(4)(C) [of Title XIX of the Social Security Act] and, at the State’s option, medical diagnosis and treatment services that are provided in conjunction with a family planning service in a family planning setting.”

This might seem like an acceptable measure, but, actual services received will depend on what limitations are placed on family planning services and supplies by Section 1905(a)(4)(C) of Title XIX of the Social Security Act. It appears that the only limitation is that these services are provided:

“… to individuals of child-bearing age (including minors who can be considered to be sexually active) who are eligible under the State plan and who desire such services and supplies.”

(See Social Security for the full text: http://www.ssa.gov/OP_Home/ssact/title19/1905.htm.)

There is no limit to what kinds of medical assistance, medical diagnosis, or treatment services can be provided at taxpayer expense. Also note that these services can be provided to minors “who can be considered to be sexually active [emphasis added]” and not just to those who actually are sexually active. Nor is there any mention of parental notification or consent before providing “treatment services” to minors.

What could the authors of H.R. 3200 possibly see as treatment services under this legislation? Abortion proponents have long asserted that reproductive rights include access to abortion services. One of the nation’s largest family planning providers, Planned Parenthood Federation of America (PPFA), lists among its women’s health services both the abortion pill (RU-486) and in-clinic abortions (http://www.plannedparenthood.org/health-center/abortion-services-abortion-referrals-25993.htm).

In March 2009, Secretary of State Hillary Clinton became the latest recipient of the Margaret Sanger Award from the PPFA. In her acceptance speech, she stated that increasing the level and quality of women’s health care worldwide depended on increasing access to family planning options. Clinton concluded by stating that PPFA has been a leader in ensuring that
“… women’s health and women’s reproductive health is included in any deliberation concerning our – finally adopting – a healthcare system that takes care of all of our people.”

(See full text of the speech at: http://www.state.gov/secretary/rm/2009a/03/120968.htm.)

When all the dots are connected, many concerned citizens reasonably conclude that HR 3200, if passed into law, will provide for taxpayer-funded abortions for women – and girls – without any limitations.

Health Care Reform and Ethical Concerns in the Public Square

Although the implications are subtle, an area of great concern regarding H.R. 3200 is in the area of ethics and how insurance companies, employers, or even individual medical professionals may be forced to provide, pay for, or participate in medical procedures contrary to their personal beliefs.

In this section, we will examine just one example of possible coercion that H.R. 3200 creates. The following information is based on the first 100 pages of H.R. 3200. Unless otherwise specified, all sections and paragraphs refer to H.R. 3200 – America’s Affordable Health Choices Act of 2009. While we go through this exercise, please think about how this proposed legislation might affect your current provider of health benefits.

If H.R. 3200 is passed and takes effect, a health benefits plan will be considered a Qualified Health Benefits Plan only if it meets all the requirements set forth in H.R. 3200 regarding affordable coverage, essential benefits, and consumer protection [Section 101(b)].

On the first day this proposed legislation becomes law, all existing health plans may remain in effect and be grandfathered. However, unless they become a Qualified Health Benefits Plan, they cannot take on any new enrollments (other than qualified dependent enrollments) and their ability to make changes in terms and conditions are limited [Sections 102(a)(1) and 102(a)(2)]. On the first day of this new legislation, the only health benefits plans that will be offered are those that are eligible to participate in the Health Insurance Exchange [Section 102(c)(1)]. Exchange-eligible health benefits plans are defined as [Section 202(d)(2)]:

1. Qualified Health Benefits Plans
2. Grandfathered health insurance coverage
3. Medicare
4. Medicaid
5. Coverage for members of the armed forces and their dependents (including through TRICARE)
6. Coverage for military veterans provided by the U.S. Department of Veterans Affairs
7. Other coverage recognized by the commissioner of the newly formed Health Choices Administration and the secretary of the U.S. Department of the Treasury

At the end of the five-year period that begins when the proposed legislation takes effect and with only a small number of exceptions, all health benefits plans must meet the same requirements applied to Qualified Health Benefits Plans [Section 102(b)(1)(A)]. The excepted plans can only be continued if they are offered separately from health insurance coverage [Section 102(c)(2)].

“Essential Benefits” and Who Determines Them?

The issues at this stage are these: What is to be considered “essential benefits” and who determines what “essential benefits” all Qualified Health Benefits Plans must include? Do not forget that only exchange-eligible health benefits plans will be allowed to enroll new participants when the proposed legislation takes effect; and other than government health benefits plans, Qualified Health Benefits Plans will be the only plans allowed to enroll new participants as exchange-eligible plans.

What defines an essential benefits package? This is where concern is needed. As an example, consider your own health insurance provider. What would your current health insurance provider be required to cover in order to become a Qualified Health Benefits Plan under this new legislation?

To answer that question, begin by considering that, by definition, Qualified Health Benefits Plans “provide payment for the items and services described in subsection (b) in accordance with generally accepted standards of medical or other appropriate clinical or professional services” [Section 122(a)(1)]. Subsection (b) lists services such as hospitalization, outpatient hospital and outpatient clinic services, prescription drugs, maternity care, well baby and well child care, etc. [Section 122(b)]. Generally speaking, all of these listed services are positive.

But what else can be considered under some of these categories? What is a “generally accepted standard”? One very realistic possibility is abortion. (See the “Abortion Concerns and Health Care Reform” section of this Web page for further explanation.) Another example of why it is reasonable to assume that abortion is considered a “generally acceptable standard” is because the federal courts have stated this in the past. The 6th U.S. Circuit Court of Appeals ruled that the state of Michigan could not prevent Medicaid from paying for abortions in the case of rape or incest. Part of the ruling is based on the fact that “abortion fits within many of the mandatory care categories, including ‘family planning,’ ‘outpatient services,’ ‘inpatient services,’ and ‘physicians’ services’.” [Planned Parenthood Affiliates of Michigan v. Engler, 73 F3d 634, 6th Circuit 1996, paragraph 7; click here for full text of the ruling: http://openjurist.org/73/f3d/634/planned-parenthood-affiliates-of-michigan-v-engler-k-j].

Another concern is who gets to decide what medical procedure is part of the essential benefits? According to the proposed legislation, H.R. 3200 will create a new Health Benefits Advisory Committee. The committee will “recommend covered benefits and essential, enhanced, and premium plans” [Section 123(a)(1)].

Who comprises the committee? The committee chair is the U.S. surgeon general, who, as of this writing, is served by an interim surgeon general and whose post is filled by the president and confirmed by the Senate. Committee members consist of: nine non-federal employees or officers appointed by the president; nine non-federal employees or officers appointed by the comptroller general who, as of this writing, is an interim comptroller general whose post is filled by the president and confirmed by the Senate; and an even number, not to exceed eight, of federal employees or officers that may be appointed by the president [Section 123(a)(2) and Section 123(a)(3)].

What then happens when the Health Benefits Advisory Committee makes a recommendation? The secretary of Health and Human Services (who is selected by the president and confirmed by the Senate) “shall review such standards and shall determine whether to propose adoption of such standards as a package” [Section 124(a)(1)].

The concern here is that the committee selection and decision making represents circular accountability. That’s because we can reasonably assume that these Health Benefits Advisory Committee members — who are all appointed by the sitting president, either directly or indirectly — will be of the president’s same philosophical and political mind-set.

The Health Benefits Advisory Committee has up to one year after the proposed legislation takes effect to recommend initial benefits standards to the Health and Human Services secretary [Section 123(b)(2)]. The Health and Human Services secretary has up to 18 months after the proposed legislation takes effect to adopt a set of initial benefits standards [Section 124(b)(1)] and is to periodically update these standards [Section 124(b)(2)].

Therefore, in order for an insurer to become a Qualified Health Benefits Plan and continue to enroll new participants, that insurer must agree to provide payment for the initial benefits standards approved by the Health and Human Services secretary as well as all future benefits that meet the secretary’s approval.

This all leads to reasonable concerns, including: What if abortion is part of the benefits standards, either as an initial benefit or if it is added later? What will happen to Qualified Health Benefits Plans that do not want to pay for a procedure such as abortion?

The Health Choices Administration commissioner will have the authority to impose civil penalties on the Qualified Health Benefit Plan and to suspend new enrollments in the Qualified Health Benefits Package until the commissioner is satisfied that the problem “has been corrected and is not likely to recur” [Sections 142(d)(2)(A) and 142(d)(2)(B)].

Additionally, if the offending health benefits plan is exchange-eligible – which means it’s among the health plans legally offered when the proposed legislation takes effect – the Health Choices Administration commissioner will have the authority to “suspend payment to the entity under the Health Insurance Exchange for individuals enrolled in such plan” after the commissioner makes the determination that a health benefits plan has committed a violation [Section 142(d)(2)(C)]. The suspension of payments continues until the Health Choices Administration commissioner is satisfied that the problem “has been corrected and is not likely to recur” [Ibid].

Finally, the Health Choices Administration commissioner will have the authority to terminate a plan “for repeated failure by the offering entity to meet the requirements of this title” [Section 142(d)(2)(D)].

As it is proposed, this legislation seems to suggest that every plan that will be allowed to take new enrollments will have to subscribe to the guidelines approved by the Health and Human Services secretary. If, for example, your current health benefits provider refused to provide payment for a medical treatment that is considered an “essential” benefit (such as abortion), it will be punished with fines, the inability to enroll new participants, lack of reimbursement from the government, and termination of the plan. And once this provider has been terminated because it will not provide for “essential benefits,” where do concerned Christians and ethically minded citizens go to choose a plan that reflects their ethics?

The name of H.R. 3200 is America’s Affordable Health Choices Act of 2009. However, there are many concerned asking if this proposed legislation can live up to its name and provide Americans with real and ethical health care choices.