Provision’s passage sidestepped Congress

It’s debatable whether, under Obamacare, “death panels,” perhaps committees of bureaucrats charged with deciding what types of medical care the government will pay for and what it won’t, especially as the costs rise toward the end of life, are a fevered fantasy or a prudent fear, with respectable arguments either way. What now cannot be debated is that the Obama administration has decided to incorporate, by administrative fiat, the provision in the health care proposal that not quite accurately sparked the death-panel debate.

During debate last year over the president’s health care proposal, a Medicare provision authorizing payment for end-of-life consultations with doctors — advance directives on extraordinary measures to prolong life and the like — was part of the bill. It was a stretch to extrapolate this, as some did, into “death panels” deciding what treatments would be allowed based on considerations other than the best interests of the patient (another provision, the Independent Payment Advisory Board, is a better candidate). Instead of defending this provision, however, the administration simply removed it from the version that achieved final passage.

Apparently the possibility this provision would not have been approved by Congress (let alone the new Congress coming in January) didn’t discourage advocates. Health and Human Services Secretary Kathleen Sebelius recently approved a regulation permitting Medicare payment for such consultations, not every five years, as in the Obamacare proposal, but annually. At least one member of Congress who supports the provision advised other supporters not to broadcast the decision too widely lest it stir up controversy. The controversial apparently is to be done in as much secrecy as possible — although apparently not that much given the proliferation of regular and irregular news sources.

Besides highlighting an administration preference for administrative over democratic procedures — and the penchant for operating with considerably less than full disclosure in an administration that had promised unprecedented transparency — the new provision could contribute over time to the kind of bureaucratic rationing of health care many Americans fear. It creates a new Medicare entitlement without paying for it.

As the Department of Health and Human Services over the next year continues to implement provisions of the new health care law in the face of a House that just might try to prevent such implementation being funded, we can expect numerous similar issues to arise. We will see whether traditional American resistance to the administrative “rule of experts” that is the soul of progressivism can slow down its implementation by those who believe they are the proper experts to rule us.