By Gary Larson, on January 14th, 2011
Ascribing to it the worst of motives, the Obama administration tried secretly to impose costly new regulations to expand Medicare under Obamacare. And nearly got away with it. Transparency, anyone? Not, apparently, from this administration.
Unbridled powers of bureaucrats to “make law” through rule-making — in effect, by regulatory fiat — is a scourge of our republic. Regulations abound on subjects great and small, promulgated by armies of invisible bureaucrats employed to “fill in the blanks” in loosely enacted legislation.
It is a sneaky way to “enact” a law covertly without actually (wink! wink!) enacting a law, often when nobody’s looking.
Such was the case a regulation for “end-of-life” counseling to be paid by Medicare for the 65 and older crowd. (Disclosure: I am one of those codgers.) We with one foot presumably in the grave, apparently needed a little help with our “end of life” choices, on Medicare dollars.
By stealth regulation, not by legislation, invisible bureaucrats in the Dept. of Health & Human Services (HSS) attempted to fund counseling under the “end-of-life” label, through Medicare, thereby expanding the already overreaching Obamacare. They did so in secret, and almost got away with it.
Until a week into the new year, January 6, a provision in a little-known Dept. of Health and Human Services (HHS) Regulation — Sec. 1233 — would have Medicare pay for such counseling annually. It was a surreptitious, bastard extension of Obamacare, a law already foisted on Americans in one of the boldest move toward galloping socialism since the halcyon days of FDR.
Regulation Sec. 1233 required Medicare to pay for such consultations. Never mind that living wills and other private directives to our family and nursing homes already own up to the subject. Privately. Without government paying for it.
Such about-death consultations were not in the Obamacare law. Yet magically, as if by sleight-of-hand, Sec. 1233 ended up effective, believe it or not, on January 1, 2011. Who knew? Turned out to be one of the shortest-lived regulations in history — six days, about 144 hours. It might have died without notice, too, because news media, inattentive in the first place, all but ignored its withdrawal. Silence of the liberals is it?
What a way to run a railroad. Sneaking in regulations when no one’s looking was a slap at the public’s right to know.
Outgoing White House spokesman Robert Gibbs announced, without fanfare, to snoozing reporters, on Jan. 6, that Sec. 1233 was being withdrawn. Gibbs did this even as pressure mounted to doom the hush-hush regulation. In his wordy but obtuse way, Chief Spinner Gibbs said there had not been “enough” public exposure to the stealth regulation.
In fact, there was no public exposure. Nada. Zip.
The regulation had taken effect on Jan. 1, 2011. It was part of the labyrinth of rules to implement unpopular Obamacare. Stealth HHS Sec. 1233 was not even published last July with other draft regulations, as required minimally by administrative procedures law.
Consequently, Sec. 1233 arguably was illegal, something Gibbs did not touch on. When this regulation was finally discovered buried deeply in the text of regulations (what other secret mandates reside therein?), a firestorm of protest erupted. Talk of “death panels” was renewed, demagogic as that was, because this regulation did not call for anything like “death panels.” Stil, the spectre loomed.
Spin Doctor Gibbs failed to mention that a momentous court challenge faced the on-the-sly promulgated regulation. To say nothing of the loathing of John Q. Public for having been bamboozled (again!) by a government bureaucracy out of control, making rules in the dark. Sort of as a Fourth Branch of government.
Name games are being played days by legislators and an army of unaccountable agency bureaucrats. By any measure it is DEATH counseling as much as “end-of-life.” Just as a tax triggered by death is not, perish the thought, a DEATH tax, but an “Estate Tax” in governmentese. Even the Obamacare law itself carries the falsely-premised name — the Patient Protection and Affordable Care Act of 2009.
Such liberties are taken with the English language these days. Even a contemporary George Orwell (“Ignorance is Strength”) would be shocked. An editorial in the Jan. 2 edition of Little Rock’s estimable daily newspaper, The Arkansas Democrat Gazette (don’t let the name fool you), sums up the silly word games:
Awkward facts must be sidestepped, euphemisms invented. The way abortion has become Choice. Names count; what a proposal is called may determine whether it ever gets into law. And so the death panels/ end-of-life consultations, had to be dropped from the final version of Obamacare.
Why regulation made in secret? (What did the Shadow know?) Perhaps the surreptitious Sec. 1233 was meant to save money later on on us tottering elderly, ready to shuffle off this mortal coil. To ease into life’s final moments maybe sooner than, ah, we’d like? Maybe more to a government standard?
Presumably –this is only a geezer’s speculation, mind you! — left-liberal, socialist-leaning cradle-to-grave collectivist government (all of that!) was of this opinion: If only those geezers would choose NOT to “rage, rage against the dying of the light.” And just move on. All the better to avoid final medical expenses on the Medicare program. Heck, we the crotchety elderly might choose instead to “go gentle into that good night,” as poet Dylan Thomas decidedly did not.
Next up: Government guidelines for “end of life” consultations?
Basically, what we had in the now-rescinded rule was another Medicare “benefit,” another freebie, and, a further drain on the fiscally ailing Medicare program, now being expanded by the influx of baby boomers. Would there be no end to its generosity?
As a corollary, naturally, Medicare-paid consultations for the 65 and over class would spur growth in medical practices. It would “incentivize” billable death consultations because, well, as everyone knows, fees expand to fit the government program that permits them, as night follows day.
Think of it: An endless supply of potential “clients” for annual death counseling on Medicare: All who reach 65. Everyone’s mortality (illegal aliens’, too?) would offer a limitless marketing opportunity for just “end-of-life” consultations. “Incentivising” would be at work, a whole new medical sub-practice. Just as in Parkinson’s Law, billable time would expand to fill the government funding available.
Secrecy for employing such stealth regulations was de rigueur, a code of silence ensured by the inattentive, certainly liberal news media which never saw a government benefit they didn’t embrace.
As to the shroud of secrecy surrounding Sec. 1233, Rep. Earl Blumenauer (D-OR) tellingly said in an email to constituents: “While we are very happy with the result [of the end-of-life consultation rule] we won’t be shouting it from the rooftops. The longer this goes unnoticed, the better our [sic] chances of keeping it.”
Whew! Is there no shame? None at all? A furtive, keep-the-public-in-the-dark attitude akin to Nancy Pelosi’s priceless gem: “Let’s pass the bill to see what’s in it.” Simple transparency is quite beyond these haughty folks in Foggy Bottom. Government transparency, anyone? Not, apparently, from the Obama administration or its minions.
Gary Larson is a retired association executive and former weekly newspaper and business magazine editor. He is not the cartoonist of the same name. He is a USAF veteran (PIO) and former war correspondent for Stars & Stripes in Southeast Asia. He is a graduate of the School of Journalism at the University of Minnesota.