Death panels or essential consultation?

That is the question, and it probably depends on the details (where the devil usually hides) and in who administers the rules.  Supposedly new guidelines have been issued on “end-of-life-consultations” being paid for by medicare.

New Medicare guidelines allow doctors to get reimbursed for holding voluntary end-of-life consultations with patients during annual medical checkups.

The inclusion of more extensive end-of-life consultations in early drafts of the Democrats’ health-care legislation last year sparked controversy—former vice-presidential candidate Sarah Palin characterized them as “death panels—and the Democrats withdrew them.

The draft legislative language on what is known as advance-care planning would have given specific directions to doctors on what they should tell patients, including discussion of palliative care, hospice and other services that could cost less than an all-out effort to prolong life.

The new Medicare rule, issued Dec. 3, is less specific. It says advance-care planning includes a discussion of setting up an advance directive that would tell doctors what to do if the patient is too ill to make medical decisions.

Doctors and patients can also discuss “whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive,” it says.

The White House on Sunday said the new Medicare directive, reported Sunday by the New York Times, doesn’t constitute a resurrection of the original health-care-bill language. It said the George W. Bush administration had already put in place guidelines allowing for Medicare to pay for end-of-life consultations.

via Medicare Will Pay for End-of-Life Talks – WSJ.com.

Done correctly, this process is essential and should be part of a doctor-patient discussion. As an attorney I had many hundreds such conversations and encouraged my clients to talk to their doctors after drafting the legal paperwork such as advance directives and health care powers of attorney.  The idea of doctors consulting with patients on such matters is not new. Note the book by Damon K. Marquis, “Advance Care Planning:  A Practical Guide for PhysiciansAmerican Medical Association Press; 1 edition (January 15, 2001).  Published in 2001, it is currently out of stock on Amazon — I guess somebody saw these regulations coming?

The prior provisions (that were withdrawn by the proponents) specified what the doctors had to say about it — and that’s still where we should look for the devil in the details.  Remember:  when the feds pay, they want to tell you how to run your business.  Just ask your local school district!

The regulatory “end-run” was first reported in the New York Times but I’ve not been able to find the actual regulation. The NYT story has a bit more detail on the matter, including:

The final version of the health care legislation, signed into law by President Obama in March, authorized Medicare coverage of yearly physical examinations, or wellness visits. The new rule says Medicare will cover “voluntary advance care planning,” to discuss end-of-life treatment, as part of the annual visit.

Under the rule, doctors can provide information to patients on how to prepare an “advance directive,” stating how aggressively they wish to be treated if they are so sick that they cannot make health care decisions for themselves.

While the new law does not mention advance care planning, the Obama administration has been able to achieve its policy goal through the regulation-writing process, a strategy that could become more prevalent in the next two years as the president deals with a strengthened Republican opposition in Congress.

via Obama to Enact End-of-Life Planning for Medicare – NYTimes.com.

It is disconcerting that the main congressional proponent of the provision (Blumenauer of Oregon), in an email as quoted in the NYT article, said:

Moreover, the e-mail said: “We would ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’ — e-mails can too easily be forwarded.” 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.”

Sorta sounds like the way the health care “reform” was passed. Like a stealth bomber. And you have to wonder why the NYT has this in an article on December 26, the day after Christmas and a Sunday to boot (when few people are reading news, I think), when the regulation came out on December 3.

These consultations should occur — but not if the goal is to steer toward rationing of health care for seniors (funny how that seems more important to me than it used to!).  And if the regulation promotes doctor-patient communication on the doctor’s terms with the consent of the patient, nobody should try to characterize the process as “death panels.” That’s not fair debate. But do watch the edge of the tent for a camel’s nose.

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About Gil Jones

CPA/Attorney/Judge by training and trade. Hobby nut at heart with BMW m/c, computers, ham radio, kayak fishing, photography, hiking and, starting in 2010 some semi-serious running and bicycling (road and mountain bikes). Retired after 16 years on a Texas District Court bench and since 2013 have been mediating cases. I am a Credentialed Distinguished mediator (TMCA).
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2 Responses to Death panels or essential consultation?

  1. Pingback: Death Panels Revisited – WSJ.com | Musings of Captain Justice

  2. Ann Ragsdale says:

    Interesting article and something to think about for sure. An RN friend of mine works at the hospital in Burnet, and told me she knows this is a problem. Many families/patients fail to have “the talk” with their doctor at the right time. We as individuals must step up and do our own planning. One more example of how we don’t need the government to “help” us with personal decisions. It can be way too costly.

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