Law by Bureaucracy

February 13, 2011

We all remember the “death panel” debate. It was one of the most polarizing issues of the health care reform debate and ultimately the language that authorized the once every five-year “end-of-life planning” session was dropped from the bill.

We also remember the famous statement by then Speaker of the House Nancy Pelosi when she said, “But we have to pass the bill so that you can find out what is in it.” The bill got passed and what we’re now finding is that much of the law is still not fully defined; it relies on yet-to-be written regulations to determine the real impact and scope of the Act. Late last year, in an op-ed, I outlined the danger of letting unelected bureaucracies control us. As I said then, “This is not what the Founding Fathers envisioned; this is what they were fighting against — the ability of a government entity, one in which they had no representation and no power to elect, having the power to affect their finances and well-being.” It was the founders fear then and my fear now that through regulations the government will institute processes that would further reduce our freedoms.

Our fears have proven to be well-founded. Under the new Medicare policies written in response to health care law which are effective the first of this year, end-of-life counseling is included as part of the yearly wellness interview. The very provision that was debated by our elected representatives and expunged from the final legislation has now been reinserted by a non-elected bureaucracy — with no debate. The provision has even been expanded, pushing this discussion to happen each year rather than once every five years. Is this an effort to save Medicare money by speeding us on our way?

The insidious nature of forming law through regulations is reflected in the response by at least one office to the news that the regulations would include the end-of-life counseling. Representative Earl Blumenauer of Oregon had urged the administration to cover end-of-life planning under the new Medicare regulation. After learning of the administration’s decision and its subsequent inclusion in the Medicare regulations Blumenauer’s office quietly celebrated but urged supporters not to publicly celebrate. “While we are very happy with the result, we won’t be shouting it from the rooftops because we aren’t out of the woods yet,” Mr. Blumenauer’s office said in an e-mail in early November to people working with him on the issue. The e-mail continued: “Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response. The longer this goes unnoticed, the better our chances of keeping it.”

Is this the transparency the administration has promised? Is this the way the Founding Fathers wanted laws enacted in this country, through regulations written by unelected bureaucrats during the holidays in hopes that no one will notice? I think not!

The administration has now backed off this end-of-life counseling provision and once again it has been removed from the regulation, but only after vigilant watch dog groups, like RetireSafe, brought these back-office bureaucratic shenanigans to light.

As the Constitution was read on the floor of the House and as this same body votes on the repeal of Obamacare, they need to remember this most recent attempt at law by bureaucracy. It proves that the administration is serious about forcing their ideas of health care reform on us whether they were included in the law or not. RetireSafe will be just as serious about stopping this assault on our rights, and we need you to be serious about telling your representatives that this type of bureaucratic slight-of-hand will not be tolerated.