There was a good deal of shocked outrage last month when Dr. Donald Berwick, President Obama’s Medicare czar, defied Congress by issuing a new regulation that would have provided financial rewards to physicians who pressure elderly patients into forgoing future medical care. A similar provision had, of course, been dropped from the original ObamaCare bill due to widespread public disapproval of government-sponsored end-of-life counseling. Berwick’s brazen bureaucratic fiat has now been rescinded, but his conduct should not have been a surprise. Such edicts are perfectly consistent with the Obama administration’s general approach to governance. The unfortunate reality is that the President and his minions at Health & Human Services (HHS) and the Food & Drug Administration (FDA) have repeatedly demonstrated that they do not feel bound by the will of the voters as expressed by our elected representatives.
The advice and consent of the latter were, of course, flouted by the President when he installed Berwick at the Centers for Medicare & Medicaid Services (CMS) with a recess appointment last July. But Obama’s apparatchiks were throwing their weight around well before anyone had ever heard of the good doctor. HHS Secretary Kathleen Sebelius made her bones even before ObamaCare was signed into law. In September of 2009, the former Kansas governor issued a gag order to 189 private-sector corporations. Through CMS, which operates under the aegis of HHS, she directed all insurance carriers offering Medicare Advantage (MA) plans to stop communicating with their customers about the potential impact of “reform.” Her pretext for this blatant violation of the First Amendment was a letter sent by an insurance company presciently warning its policy holders that ObamaCare might adversely affect their benefits.
Sebelius’ conduct prompted an investigation by the Government Accountability Office (GAO), which quietly released its findings last September. The GAO concluded that the CMS directive was, in the bland vernacular of the Washington bureaucrat, “unusual.” The directive was, in fact, unprecedented. As the GAO pointed out, “Officials from the MA organizations and CMS regional offices that we interviewed told us they were unaware of CMS ever directing all MA organizations to immediately stop an activity before CMS had determined whether that activity violated federal laws, regulations, or MA program guidance.” Sebelius offered several specious justifications for her behavior, including the following: “[W]e are concerned that federal funds not be used improperly …” This from a woman whose department used taxpayer funds to pay for Google ads redirecting searches on the word “ObamaCare.”
HHS is by no means the only federal health bureaucracy issuing peremptory edicts to private corporations. Last June, the FDA sent letters to a variety of personal genomics companies, putting them on notice that it intends to regulate direct-to-consumer tests. As Paul Hsieh, MD explains, “Recent advances in biotechnology have allowed private companies to offer affordable genetic testing directly to consumers, to help them determine their risks of developing problems such as diabetes, heart disease, and various forms of cancer.” Sound like a pretty good idea? Well, not to the commissars of the FDA. They’re afraid “consumers may make medical decisions in reliance on this information.” The director of the FDA’s “Office of In Vitro Diagnostics in the Center for Devices and Radiological Health” told Newsweek that such decisions on the part of consumers “could affect their health.”
Such bureaucratic attitudes, as Hsieh points out, “represent a new level of government paternalism over the citizenry.” Unfortunately, it gets worse. In one of the weirdest examples of mission creep in recent memory, the FDA is actually investigating international cycling. The investigation is ostensibly meant to “bring charges against any team leaders and team directors [read Lance Armstrong] who may have facilitated or encouraged doping by their riders.” And what sort of “doping” are they looking into? Some cyclists have, according to disgraced cyclist Floyd Landis, received transfusions of their own blood during the Tour de France. In other words, the FDA is spending who knows how much taxpayer money digging into vague allegations about cheating in a French bicycle race. Even if Landis is telling the truth, for once, this practice violates no U.S. law.
The FDA has, however, been more frugal with taxpayer funds when they are to be spent on treating seriously ill patients. Last July, the FDA announced that it was about to take the anti-cancer drug Avastin “off-label.” Such a decision effectively denies patients access to the drug involved because the off-label designation provides Medicare and other health insurers with a pretext to stop paying for it. For Avastin, which is used to treat breast cancer, this travesty was originally scheduled to take place in September. But, in an incredibly cynical political decision, the FDA delayed implementation until after the midterm elections. In December, however, they took Avastin off-label. Thus, as Dr. Milton Wolf phrases it in the Washington Times, “For the first time in our history, the government has banned the use of a cancer drug based not on its safety or even efficacy, but on its financial cost.”
This is rationing, of course, which brings us back to Donald Berwick and his regulatory fiefdom at CMS. He is an admirer of the third-world health system of Great Britain, which is notorious for such practices. Indeed, Berwick has long been a proponent of rationing, having famously averred that “the decision is not whether or not we will ration care, the decision is whether we will ration with our eyes open.” For most voters, however, the decision is not whether to ration, but how to get rid of arrogant apparatchiks like Berwick, Sebelius, and their accomplices at the FDA. In the short term, that is probably not possible. Nonetheless, while we wait patiently for 2012, it is possible for the new GOP majority in the House to bring them to heel. As with dogs, the proper training of bureaucrats involves careful instruction on how to respond correctly to basic commands, and the first command Obama’s medicrats must learn is “come here.”
In the House of Representatives, the “come here” command is more commonly known as a subpoena. The House committees most involved in health care oversight are Energy & Commerce and Ways & Means. Both should begin training sessions in January. Once they have taught Berwick, Sebelius, et al. to come when called, the committees can acquaint them with the congressional choke chain and teach them a few tricks. One trick these badly behaved bureaucrats need to learn quickly is how to roll over and beg — for funding.