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Doctor’s Orders?

Republicans claim that the new stimulus law says the government will tell physicians what procedures can and can't be performed. It doesn't.


Summary

Conservative politicians have claimed that the stimulus bill requires that doctors follow government orders on what medical treatments can and can’t be prescribed. But the bill doesn’t say that.

  • Rep. Tom Price of Georgia says the measure creates "a national health care rationing board." Not true. What it creates is a council to coordinate research into which treatments work best, and are most effective for the money. And in fact, the new law states quite specifically that the council has no power to "mandate coverage" and that its recommendations are not to be construed as "clinical guidelines for … treatment."
  • Betsy McCaughey, a Republican former lieutenant governor of New York, claims that the bill creates a "new bureaucracy, the National Coordinator of Health Information Technology." Not true. The office was created in 2004 by President Bush. McCaughey, an adjunct fellow at the conservative Hudson Institute, also says the office "will monitor treatments" and " ‘guide’ your doctor’s decisions." But that’s nothing new. Bush’s initiative called for creating a health IT system to transmit information to "guide medical decisions." (McCaughey became a Democrat in 1997 and ran for governor of New York against her former boss, George Pataki.)

Critics of comparative effectiveness research, which the government has been funding for decades, claim that it will lead to treatment being approved or denied based on costs. Proponents say it will improve the quality of care and can, in some cases, show that more costly treatments aren’t as effective as less expensive alternatives. We can’t predict what will happen in the future, but we can say that several claims being made about the impact of the bill are simply opinions being passed off as facts. Update: We have modified the summary to make clear that McCaughey switched parties in the late ’90s.

Analysis

Republican lawmakers have been saying some alarming things about what the economic stimulus legislation will do to the U.S. health care system. Rep. Tom Price of Georgia – a doctor – issued a statement on Feb. 13 saying: "For all its faults, perhaps the most shameful provision in the non-stimulus bill is the creation of a national health care rationing board. Congressional Democrats are using the cover of an economic crisis to advance an agenda that will destroy the doctor-patient relationship and set us on a course for government-administered health care." A day before President Barack Obama signed the bill into law on Feb. 17, National Public Radio aired a report in which Rep. John Shadegg of Arizona said that the government would "deny you and your doctor the right to get [certain] treatments."

Actually, the legislation doesn’t call for any kind of "rationing board," nor does it say the government can, should or will "deny" the public any medical treatments. In fact, the final compromise legislation includes additional language to make this even more clear. Yet, various conservative politicians and commentators have made such claims. Betsy McCaughey

We first heard of these assertions when readers began e-mailing us an opinion piece by Betsy McCaughey that was published by Bloomberg News on Feb. 9. The views expressed by McCaughey were soon echoed by others, and she repeated her claims in appearances on CNN and Fox News. McCaughey is not a journalist. She’s a Republican former lieutenant governor of New York who is currently an adjunct fellow at the Hudson Institute, a conservative think tank. This isn’t McCaughey’s first foray into questioning health care policy: In 1994, she wrote a piece criticizing the Clinton health care plan that ran in The New Republic, won an award and, a year later, was called inaccurate by the magazine’s writers.

(Update, Feb. 21: McCaughey was elected lieutenant governor on George Pataki’s ticket, but when he dropped her from his 1998 reelection campaign, she ran against him as a Democrat. She lost the primary and ran on the Liberal party’s line, getting 1.6 percent of the vote.)

Her opinion column refers to the stimulus bill as passed by the House, which is not much different regarding this subject from the final bill that President Obama signed into law. She claims that the measure’s health care provisions, particularly those aimed at speeding up the adoption of electronic health records, stipulate that the government will tell doctors what procedures they can and can’t perform and, most frighteningly, that the elderly will face a "rationing" of health care as medical procedures to improve their lives are not deemed cost effective. Radio host Rush Limbaugh repeated such charges on Feb. 10, telling his listeners that "if the cost of your treatment as a seasoned citizen is deemed by the government to be too expensive based on how much longer you have to live, then you don’t get treated." Some of Limbaugh’s language was nearly word-for-word from McCaughey’s column.

Since her column was one of the first to make such assertions and was the source for others’ claims, and since it cites specific pages in the House bill, we’ll take a close look at the claims she makes. It’s important to remember that McCaughey’s is an opinion piece, and as Bloomberg News notes in the bio, "the opinions expressed are her own." Still, she gets some facts wrong, and often gives the incorrect impression that her view of what the bill could mean is what the bill actually says.

The ‘New’ Bureaucracy Was Created by Bush

McCaughey acknowledges that "having electronic medical records at your fingertips, easily transferred to a hospital, is beneficial." In fact, both Republicans and Democrats have talked about the value of electronic records and the ability to cut down on duplicate tests or bad drug interactions, and to increase prevention efforts. President Barack Obama has set a goal of having every American’s health records computerized in five years. President George W. Bush, too, said everyone should have electronic records by 2014, and he pushed the technology through incentive payments to physicians and other measures. When we talked with McCaughey, she reiterated that there were many benefits to be gained from such technology: "I’m all for electronic medical records," she said.

Dr. David Brailer, the first national coordinator of health ITIn her column, McCaughey says that the stimulus bill creates "one new bureaucracy, the National Coordinator of Health Information Technology." Not true. The office has been in existence for nearly five years. In fact, it was President Bush who created it by executive order in April 2004. The current national coordinator, Dr. David J. Brailer, was appointed that year. (Correction: A new national coordinator, Dr. Robert M. Kolodner, was appointed in 2007.) The office is charged with setting standards for an interoperable health IT system and encouraging doctors and hospitals to switch to electronic record-keeping. The stimulus legislation calls for funding for this office, includes more detail on its duties, and makes it permanent in law. McCaughey further claims that the national coordinator "will monitor treatments to make sure your doctor is doing what the federal government deems appropriate and cost effective." She highlights the word "guide" from the stimulus legislation, writing: "The goal is to reduce costs and ‘guide’ your doctor’s decisions." But that language in the new law is virtually identical to Bush’s executive order in 2004. Both Bush’s 2004 executive order and the new legislation lay out various duties and goals for the national coordinator. The bill lists 11 characteristics a national health IT infrastructure should have, such as “improves health care quality, reduces medical errors … and advances the delivery of patient-centered medical care.” One of the criteria is “provides appropriate information to help guide medical decisions at the time and place of care.” That’s also the very first criterion in Bush’s executive order:

Executive Order 13335, April 27, 2004: In fulfilling its responsibilities, the work of the National Coordinator shall be consistent with a vision of developing a nationwide interoperable health information technology infrastructure that: (a) Ensures that appropriate information to guide medical decisions is available at the time and place of care

McCaughey writes that "these provisions in the stimulus bill are virtually identical to what [former Health and Human Services Secretary nominee Tom] Daschle prescribed in his 2008 book." That may be, but she neglects to say they are also virtually identical to the executive order that has been in effect for nearly five years. And there’s nothing in the law that says the national coordinator will "make sure your doctor is doing what the federal government deems … cost effective."

No "Mandate"

McCaughey insisted to us that a "critical difference" between the office created in 2004 and this "new enterprise" is that "now the use of these technologies is mandatory." But that’s not true either. The bill doesn’t legally require hospitals or doctors to adopt electronic medical records.

When pressed, McCaughey pointed to several phrases in the bill that repeat Obama’s goal to have electronic records for "each person" in the U.S. But setting a goal is not the same thing as creating a legal requirement. And anyway, the Bush administration’s stated goal was identical: "Within ten years, every American must have a personal electronic medical record," Bush said in April 2004, in first announcing his goal. (For the record, at other times he said "most Americans.")

McCaughey is on firmer ground when she notes that hospitals and doctors will face penalties if they do not become "meaningful users" of the new system. What the legislation does is to provide, through Medicare and Medicaid payments, financial incentives for doctors and hospitals that adopt the technology, and penalties through Medicare for those who don’t. But it’s a carrot-and-stick approach that relies mostly on carrots: The first year incentive payment for doctors through Medicare, for instance, is up to $18,000 if they can demonstrate "meaningful use" of electronic records by 2011 or 2012.

Penalties for those who fail to adopt the technology wouldn’t kick in until years later. Medicare payments to medical professionals that fail to use electronic records would be reduced by 1 percent in 2015, and ultimately by three percent in 2018. (There would be no reduction in Medicaid payments, however.) The HHS secretary could increase the Medicare discount even more after 2018 if by that time less than three-quarters of medical professionals are using electronic records. But even in that event, the Medicare penalty for failure to adopt electronic records couldn’t go higher than 5 percent. The law also allows for hardship exemptions.

McCaughey complains that “meaningful user” isn’t defined in the bill, and it’s true that the new law leaves wide discretion to the HHS secretary to define that term. The law says that to qualify as a "meaningful user" a doctor should be using electronic prescriptions "as determined to be appropriate by the Secretary," for example.

Throughout our conversation, McCaughey spoke of an "unprecedented" award of authority to the secretary. That’s a matter of opinion on which we won’t weigh in. She also said that the secretary could impose "more stringent measures of meaningful use over time," which is true enough. The bill says: "The Secretary shall seek to improve the use of electronic health records and health care quality over time by requiring more stringent measures of meaningful use."

But McCaughey also says this authority "absolutely" could allow an HHS secretary to require a doctor to follow certain medical guidelines in treating patients, on penalty of not qualifying as a "meaningful user" and eventually being forced to accept reduced Medicare payments. She highlights the language calling for the secretary to "improve the use of electronic health records and health care quality." The HHS secretary, she told us, "is not simply measuring the frequency with which physicians … simply enter health care data into the electronic database. No, they’re going to be measuring more than that." Perhaps so, but the idea that this will lead to federally mandated treatment guidelines is her supposition. The fact remains that law does not impose any federal treatment guidelines or require that the government do so.

And "quality" talk is nothing new. In his 2004 order, Bush wrote of an electronic records system "to improve the quality and efficiency of health care." Quality can be improved simply by giving doctors the latest information on appropriate treatments, or automatically flagging potential drug interactions when different physicians are prescribing medications for the same patient. Bush’s order said the system he envisioned would reduce "medical errors, inappropriate care, and incomplete information" and promote "a more effective marketplace, greater competition, and increased choice through the wider availability of accurate information on health care costs, quality, and outcomes." The word "quality" doesn’t automatically trigger treatment guidelines, whatever McCaughey might suppose.

McCaughey points to another line in the stimulus bill that says the secretary "shall provide preference" to certain "clinical quality measures." She says this implies government controls: "[Y]ou don’t improve quality just alone by keeping a medical database." She argues that this language would not be present "if the only thing the secretary was considering was how often they put that data into the database."

Nevertheless, measuring the success or failure of particular medical treatments is not the same thing as ordering that specific treatments be given in the first place. And there’s no mention in the law of the HHS secretary being given authority to order around doctors or to cover certain treatments under Medicare while denying payment for others.

We’re not the only ones to note McCaughey’s misrepresentations. CNN senior medical correspondent Elizabeth Cohen reported that McCaughey couldn’t point to anything in the bill that backed up her allegations:

CNN’s Cohen, Feb. 11: [W]hen we asked Betsy McCaughey, "Show us the bill." I had a PDF of the bill up on my computer. I said, "Show me where in the bill it says that this bill is going to have the government telling your doctor what to do." And she directed me to language that didn’t actually say that. But she said that it was vague enough that it would allow for that to happen in the future. Now, when we asked the folks who wrote this bill, hey, is this bill going to allow the government to tell doctors what to do, they used words like preposterous and completely and wildly untrue.

McCaughey told us that she thought she had "a much more sophisticated discussion than that" with CNN. Perhaps what she says will indeed come to pass some time in the future. Who knows? But contrary to what she claims, the new law doesn’t require it.

Elder Scare

In her Bloomberg opinion piece, McCaughey claims that "the elderly will bear the brunt," and cites the example of a government health board in Britain that she says decreed in 2006 that patients with macular degeneration had to wait until they went blind in one eye before qualifying for an expensive new drug to save the other eye. She claims that the stimulus legislation establishes a similar board modeled on the British one, and that "seniors in the U.S. will face similar rationing." But her analysis is full of errors.

She claims that the new board’s goals are described in a book by former Sen. Tom Daschle, who was President Obama’s first choice to head HHS, and that it will be similar to the British board she mentioned. That’s wrong. What the stimulus legislation establishes is a Federal Coordinating Council for Comparative Effectiveness Research, which is a very different thing from the board described by Daschle in his book, "Critical: What We Can Do About the Health-Care Crisis."

Daschle’s book recommended a Federal Health Board to be an "independent board … charged with establishing the [health care] system’s framework." He writes that such a board would do all sorts of things, including "promote ‘high-value’ medical care by recommending coverage of those drugs and procedures backed by solid evidence."

What the new law sets up is not an independent agency, for one thing. Instead, the coordinating council is to be made up of senior officers from various federal agencies, including the Centers for Medicare and Medicaid Services and the National Institutes of Health. More important, this research council has no power to set standards or ration care. Its duties are limited to supporting and coordinating what is called comparative effectiveness research. What’s that? A 2007 Congressional Budget Office report describes it as "a rigorous evaluation of the impact of different options that are available for treating a given medical condition, for a particular set of patients." In other words, it’s nothing more than a scientific effort to identify which treatments work best and are most cost-effective. For example, such studies can compare competing drugs, or compare the effect of drugs versus surgery.

Furthermore, despite McCaughey’s sudden alarm, such research is nothing new. The federal government has funded comparative effectiveness research since the late 1970s, through Republican administrations as well as Democratic administrations. In 1989, under President George H.W. Bush, the Agency for Health Care Research and Quality was established. The CBO called it "the most prominent federal agency supporting various types of research on the comparative effectiveness of medical treatments." The Department of Veterans Affairs and the National Institutes of Health also fund such research.

And both Obama and Republican Sen. John McCain supported comparative effectiveness research during the presidential campaign. The stimulus law provides $1.1 billion for such research. When we spoke, McCaughey said she hadn’t meant to say that Daschle’s board and the comparative research council were the same thing. She explained that the authority given to the HHS secretary in the new law is similar to what Daschle’s proposed board would have had. "My point in the article was to point out how vast the delegation of authority was to the secretary of health and human services," she said.

To support her prediction of "rationing," McCaughey also points to a line in the legislation regarding criteria for establishing an interoperable health IT system: "Strategies to enhance the use of health information technology in improving the quality of health care." Here again she equates the term "quality of health care" to what she calls creating "a protocol" – a federal rule for how a doctor should treat a patient.

We have no ability to predict whether something like that may happen in the future. But we have read all sections of the bill pertaining to the Federal Coordinating Council for Comparative Effectiveness Research and nowhere does it say that Medicare payments or benefits would be tied to a standard set by the council.

A Debate Over Research

To be sure, there’s plenty of debate about how comparative effectiveness research, particularly the cost-effectiveness variety, would be used. While McCaughey sees it as a dangerous tool that could deny expensive care, others see it as a way to improve health treatment and lower costs at the same time.

In an introduction to the CBO report, former director Peter Orszag wrote that "findings suggest that generating better information about the costs and benefits of different treatment options—through research on the comparative effectiveness of those options—could help reduce health care spending without adversely affecting health overall." The CBO did acknowledge the controversy: “By convention, cost-effectiveness analyses report results as the cost per [quality-adjusted life years] gained, so a lower dollar amount indicates a more cost-effective service. If that metric is used to determine whether specific health procedures are covered by an insurance program, choosing a cost-effectiveness threshold can be a controversial endeavor—but that need not be the manner in which such research is applied.”

How this type of research could be used was a point of contention when Bush was pushing the idea of health IT, too. In a lengthy piece on National Coordinator for Health IT David Brailer in Oct. 2005, Business Week wrote of one of the hurdles to a nationwide system: “One long-term NHIN goal is to identify treatments that work best and get all doctors to use them. That could mean physicians won’t be able to give patients the care they would choose first.” Brailer said the system would get valuable information on quality care in the hands of doctors and consumers.

Gail Wilensky, a health adviser of Sen. McCain during his presidential campaign and the former administrator of the Health Care Financing Administration, has also called for more comparative effectiveness research, of both the strictly clinical and cost-effective types. In testimony before Congress in 2007, she proposed a “Center for Comparative Clinical Effectiveness,” with cost-benefit analysis research to be supported separately, partly because she thought combining the two “will increase the political vulnerability” of such a center “and since such information is the most elemental building block to learning how to spend smarter, it needs to be protected.”

There are varying opinions about this research, and several claims being made about the stimulus legislation are just that.

Added Language

Both the House and Senate bills contained very similar provisions regarding health care and health IT. But additional language was added to the final compromise legislation aimed at dampening speculation that the bill would do much more than it actually said. At the end of the section describing the Council for Comparative Effectiveness Research, Congress added:

H.R. 1, conference report: (g) RULES OF CONSTRUCTION- (1) COVERAGE.-Nothing in this section shall be construed to permit the Council to mandate coverage, reimbursement, or other policies for any public or private payer. (2) REPORTS AND RECOMMENDATIONS.-None of the reports submitted under this section or recommendations made by the Council shall be construed as mandates or clinical guidelines for payment, coverage, or treatment.

A report accompanying the final legislation includes similar language, saying that "[t]he conferees do not intend for the comparative effectiveness research funding … to be used to mandate coverage, reimbursement, or other policies for any public or private payer." It further states: "The funding in the conference agreement shall be used to conduct or support research to evaluate and compare the clinical outcomes, effectiveness, risk, and benefits of two or more medical treatments and services that address a particular medical condition."

Rep. Tom Price But McCaughey says that doesn’t satisfy her concerns. She says that the bill still "empowers the secretary of health and human services to determine who is a ‘meaningful user’ " and that it’s really the secretary that’s being given too much authority. "No one would dream that the council itself would be in that role."

She and other Republicans also still worry about a sentence in a draft report on the House bill (but not the final bill), a line critics such as Rep. Price of Georgia point to as proof of their claim that government-run health care is right around the corner. Here’s the full paragraph the Jan. 15 House report included about the funding for comparative effectiveness research:

House report on H.R. 1, Jan. 15: The Agency for Healthcare Research and Quality (AHRQ) began a Comparative Effectiveness Research program after passage of the Medicare Modernization Act of 2003 to conduct, support, or synthesize unbiased research about the comparative effectiveness of different healthcare interventions. By knowing what works best and presenting this information more broadly to patients and healthcare professionals, those items, procedures, and interventions that are most effective to prevent, control, and treat health conditions will be utilized, while those that are found to be less effective and in some cases, more expensive, will no longer be prescribed. Substantially increasing the Federal investment in comparative effectiveness research has the potential to yield significant payoffs in reducing health care expenditures and improving quality.

Some take that to mean the government would no longer allow certain treatments that are "more expensive" to be prescribed. But there’s no description of government force here. The sentence says "by knowing what works best and presenting this information" to patients and physicians, the most effective procedures will be used and those that aren’t as effective "and in some cases, more expensive" won’t be. That’s a description of a rational, voluntary reaction to be expected from the medical community and the public to scientific knowledge of what works and what doesn’t, and at what cost.

– by Lori Robertson

Footnote, Feb. 24: McCaughey did not contact us to challenge any of the facts in our article, but on Feb. 23, she posted a press release on PRNewswire headlined “FactCheck.org Gets It Wrong on Stimulus Package.” In her release, she says that she is a Democrat and not a Republican politician. A day after we originally published this article, we made clear that she switched parties after being dropped from Gov. Pataki’s 1998 reelection campaign. (She then ran against him.) We have also made this clear in the summary of the article.

McCaughey goes on to say: “Robertson also states that I am not a journalist and therefore lack the qualifications to analyze the stimulus package.” That’s not correct. We did say she was “not a journalist,” but we never said that she “lacked qualifications.” She is not working as a journalist, and our intent was to make that clear to our readers.

McCaughey then reiterates her views of the stimulus plan. We note that McCaughey now acknowledges that her statements about the legislation are speculation about what “could” happen rather than statements of fact. She writes:

"Robertson concedes that ‘perhaps’ such interference with the doctor-patient relationship ‘will indeed come to pass some time in the future. Who knows?’ she says. ‘But the law doesn’t require it.’ "

"Require it? No. Allow it to happen? Absolutely. The point of analyzing legislation is to understand what could happen once the law is passed."

That’s a marked retreat from McCaughey’s original claims, in which she wrote: "seniors in the U.S. will face [British-style] rationing." As we noted from the start, what she passed off as a certain statement of what “will” happen is actually what she thinks might happen.

Update, Feb. 27: Rep. Shadegg’s office sent a response to this article, which readers can see here. In it, Shadegg says we are being “deceptive,” adding: “I didn’t claim, as misleadingly suggested in the article, that the bill forces doctors to do its bidding – rather that it sets the stage for that dreaded day.” Actually, the full quote we referred to was this:

"If the federal government spends, as this bill does, $1.1 billion to begin to figure out what treatments or drugs are more expensive, it’s going to use that information to deny you and your doctor the right to get those treatments," says Rep. John Shadegg (R-AZ). "That’s what I think people are very concerned about, as well they should be."

Shadegg’s press secretary told us that quote didn’t convey the full substance of the congressman’s remarks and referred us to a column Shadegg wrote in which he said, “Comparative Effectiveness Research … marches America toward that dreaded future when our most private medical decisions are made by far-off elites in Washington, D.C.” Higher up in that column, however, he wrote that “Washington Liberals plan to use this ‘research’ to determine which medical treatments are, or are not, ‘cost-effective,’ as they determine.”

So, although Shadegg did say unequivocally at one point that the government is "going to use that information to deny you and your doctor the right to get those treatments," his spokesman wishes to make clear that this is just Shadegg’s idea of what "liberals" might someday do with the information. We are happy to offer his clarification, but we disagree with his statement that our article was deceptive or inaccurate.

Sources  

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Rovner, Julie. “Stimulus Provides Review of Health Battles Ahead.” NPR, 16 Feb. 2009.

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