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Medicaid's 'death debt' another blow for ObamaCare?

This is a rush transcript from "Special Report," January 23, 2014. This copy may not be in its final form and may be updated.

(BEGIN VIDEO CLIP)

DR. JANE ORIENT, ASSOCIATION OF AMERICAN PHYSICIANS/SURGEONS: I think that people are maybe in for a shock when they find out that their heirs are going to be paying for care that they didn't even use because they got into a system under false pretenses.

These people are being forced into Medicaid without recognizing the implications, without having any choice about using their own money to provide for their care in their own way. So, it's really the dishonesty and the lack of transparency that I think is so objectionable.

(END VIDEO CLIP)

BRET BAIER, HOST: Two sides there to that sound from that doctor talking about the death debt. States are allowed it recover the cost of care even after death. It's been the law since 1993 in Medicaid, but it is -- Medicaid is expanding dramatically now, and it may be affecting many more people, many more families.

We are back with the panel. Charles, how big a problem is this, potentially?

CHARLES KRAUTHAMMER, SYNDICATED COLUMNIST: Well, I think -- I'm not sure how large the impact will be, though, because they radically increased the ceiling, under which you are allowed to get Medicaid. It used to be the very poor, so you didn't really have a state that you could raid for money afterwards. Now a whole bunch of people that are middle class own their own homes are now being shoved into Medicaid, so you will have the -- it's hard to estimate how many it will be.

But to me, it just shows how thoughtless and arrogant was the planning of all of this. People said, you know, the experts sit here in Washington and say, "Well, let's expand Medicaid up to a certain level, arbitrary level," without thinking it through. One of the reasons that Medicaid was expanded was because the assumption -- it was a reasonable assumption -- that it will decrease the amount of visits to the ER by the poor. So it would save a lot of money. That was the premise.

Well, there has been a study in Oregon, a randomized study of people who sign into Medicaid and outside, that shows that it actually increases the use of the ER by 40 percent. So here they are expanding it, acting on these assumptions. The empirical evidence arrives. I guarantee you nothing will change. It's going to be a huge economic burden on the government and on the country, but it will not change one iota of how the program is administered, even though it was established on a false and empirically shown to be false evidence.

BAIER: Elise, every day we seem to find some other element of this massive law. How much do you think Democrats on the Hill acknowledge there is a lot of work to do to fix the law if they are going to defend it in this, especially an election year?

ELISE VIEBECK, THE HILL: They fully acknowledge it because the evidence is right there in front of them. Of course they want to defend themselves politically ahead of November. What's interesting about this particular issue is that state officials have a remedy. In fact, in Washington and Oregon, they have filed emergency orders that would prevent Medicaid from doing this death debt, at least in some cases.

Now, in those states Medicaid can only raid estates after a person has died for the cost of long-term care. These are people are destitute, in nursing homes for decades, perhaps. And in many states that rule already exists. So, state officials are moving to fix this. I think that' is what we will see across the country because this was a very big deal and this strikes me as a problem that many people have not even considered.

BAIER: George?

GEORGE WILL, SYNDICATED COLUMNIST: This adds another kind of Orwellian phrase to our new political lexicon, "estate recovery." It is not as your state recovers, they recover from your estate. It's just another unpleasant surprise. I think that people are tired of surprises of all sorts with this.

BRIT HUME, FOX NEWS SENIOR POLITICAL ANALYST: Thinking about this -- under normal circumstances a president, even a president in second term would be working with his allies in Congress for ways to fix all these problems we're talking about. At this point I don't think this administration is willing to take that chance.  They don't want a big bill of any kind with a lot of fixes in it to come up because they are afraid it would be amended to undo much of the rest of what ObamaCare is all about.

BAIER: But, wouldn't it?

HUME: And they are afraid that know something like that could sail through the House of Representative dominated by Republicans. What they are afraid of it might pass the Senate as well and confront the president with the dilemma of vetoing something that he tried to start or possibly -- although I think it's probably unlikely -- not being able to sustain a veto if he casts one.

BAIER: But Brit, you are painting a picture where it does not get fixed, it does not get repealed and it's --

HUME: A train wreck.

BAIER: -- a train wreck and we are just dealing with it.

HUME: Right.

KRAUTHAMMER: I think the president is going to react in the same way he did when he discovered that purchasing health insurance is difficult, when he discovered that the exchange wasn't really working, when he discovered half the things he has discovered in the White House, I'm sure he will say he had no idea. He probably didn't.

I mean, this is really the proof of the Pelosi theorem that you have to pass a law in order to know what's in it, another consequence, another surprise. And I think in the end there are going to be so many of these that they will have to amend it in Congress. But what the president, as you say, doesn't want is to have Congress amend any of this. That's why when the Republicans proposed a way to restore the private health insurance, he said no, veto it, and then he did it unilaterally and lawlessly by executive suggestion, actually.

BAIER: Panel, thank you. Elise, thank you for putting up with these guys.

VIEBECK: Thank you.

BAIER: That's it for the panel.

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Special Report, hosted by Bret Baier, airs on Weekdays at 6PM ET on Fox News Channel.