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Death Panels Through the Back Door



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There is widespread agreement that, in America, we don’t do enough to consider the consequences of modern medical miracles. Medicare pays for anything and everything: so the elderly have an incentive to seek aggressive treatment for diseases that weren’t even treatable a decade ago. The “unintended” consequence of this conundrum is exploding Medicare costs, costs that may literally wreck this country.

The Left’s solution is rationing: the government should determine when individuals are seeking care they don’t need, and prevent them from obtaining it. The Right’s solution is privatization: let individuals pay for the care they want, even if that means that some people are able to afford more care than others.

There are a lot of policy arguments to be made against rationing and in favor of privatization: for one, health care expenditures in socialized systems are increasing at rates that are equal to, or even higher, than those in the United States. But the reason why “death panels” have aroused so much passion is because they touch on something more personal and more ethical.

The news item is this: The Centers for Medicare and Medicaid Services, under the leadership of controversial recess appointment Donald Berwick, are set to enact a rule in which Medicare will reimburse doctors for end-of-life planning during the doctor’s initial interview of a patient. (Medicare calls these interviews IPPEs.) The rule was buried on page 74,306 of the Federal Register, Volume 75, Number 228, on November 29 (re-formatted and hyperlinked for clarity):

Comment: We received a number of comments from physicians, health care providers, and others urging us to add voluntary advance care planning as an element to the definitions of both the “first annual wellness visit” and the “subsequent annual wellness visit.” They base their recommendation upon a number of recent research studies, and the inclusion by statute of a similar element in the existing initial preventive physical examination (IPPE) benefit.

One commenter noted that “the new wellness visit was wisely designed to build on the initial preventive physical exam, providing an ongoing, systematic focus on wellness and prevention by harmonizing Medicare services into a coordinated benefit.” Another commenter stated that “the AWV provides an appropriate setting for providers to initiate voluntary conversations about future care wishes, as they counsel beneficiaries on other aspects of their health and achieving their personal health goals.” The commenter added that the “care plans discussed in the ‘Welcome to Medicare visit’ should not be frozen in time, but revisited as an important component of patient wellness.”

Response: We agree that voluntary advance care planning should be added as an element of the definitions of both the “first annual wellness visit” and the “subsequent annual wellness visit” based on the evidence described below, and the inclusion of a similar element in the IPPE benefit (also referred to as the Welcome to Medicare visit), since January 1, 2009. We believe that this will help the physician to better align the personal prevention plan services with the patient’s personal priorities and goals.

Recently, Detering and colleagues (British Medical Journal 2010; 340:c1345) reported that “advance care planning improves end of life care and patient and family satisfaction and reduces stress, anxiety, and depression in surviving relatives.” Silveira and colleagues (New England Journal of Medicine 2010; 362:1211-8) reported that “data suggest that most elderly patients would welcome these discussions.” Lastly, a study by Fischer and colleagues (Journal of the American Geriatric Society 2010; 58:400-401) found “no evidence that these (advance directive) discussions or completing an advance directive lead to harm.”

Based on the available evidence and other relevant information, we are adding to the final regulation a definition of the term “voluntary advance care planning” to read as follows:

“Voluntary advance care planning” means, for purposes of this section, verbal or written information regarding the following areas:

  1. An individual’s ability to prepare an advance directive in the case where an injury or illness causes the individual to be unable to make health care decisions.
  2. Whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive.

This definition is based on the definition of “end-of-life planning”, which is included as an element of the IPPE as described in section 1861(ww)(3) of the Act. Thus, the addition of “voluntary advance care planning” to the AWVs extends to those visits a similar element to the one already in the one-time IPPE.

We are also revising the definitions of the terms “First annual wellness visit” and “Subsequent annual wellness visit” by inserting a new element (ix) to the definition of the term “first annual wellness visit” and a new element (vii) to the definition of the term “subsequent annual wellness visit” in Sec.  410.15 (a) of the final regulation text that would read as follows: “Voluntary advance care planning as that term is defined in this section upon agreement with the individual.”

Donald Berwick’s nomination to head CMS was controversial precisely because he is a passionate advocate of the British system, in which there are indeed death panels that prevent patients from receiving life-extending therapies for cancer, blindness, and other conditions. In his commentary above, Berwick cleverly cites several academic studies that show that end-of-life planning is a good thing: that it’s good for individuals and families to think ahead about what kind of care they want, in situations where they might only be able to live with the assistance of machines.

Yet there is no disagreement about the value of end-of-life planning. Where there is disagreement is as to the propriety of state involvement in the plan.

Earlier this year, I wrote a lengthy piece describing the concerns that many Americans have with state-sponsored end-of-life planning: concerns that Atul Gawande and others have dismissed as “demagogic.” The problem is, when the state pays for your health care, the state has an incentive to avoid paying for end-of-life care. When the government pays for end-of-life planning, it has a conflict of interest, because it has every incentive to encourage the elderly to “pull the plug” instead of encouraging them to fight to stay alive. This is why Britain has the system it has.

When Sarah Palin spoke out against death panels in August 2009, she wasn’t specifically referring to state-sponsored end-of-life planning. Nonetheless, the resulting furor caused House Democrats to pull Section 1233 of their health care bill, which would have allowed Medicare to reimburse physicians for conducting end-of-life conversations. “See?” said various Democrats. “We aren’t allowing the government to meddle in end-of-life care. Conservatives are just being paranoid.”

Unfortunately, while Obamacare did not explicitly grant Medicare the ability to fund end-of-life planning, it did transfer massive amounts of power to the Department of Health and Human Services, and under HHS, the Centers for Medicare and Medicaid Services (CMS). Donald Berwick, the CMS head, has wasted little time in using his powers to full effect. According to a Robert Pear article in the New York Times, advocates of the Berwick approach are keeping a low profile:

Congressional supporters of the new policy, though pleased, have kept quiet. They fear provoking another furor like the one in 2009 when Republicans seized on the idea of end-of-life counseling to argue that the Democrats’ bill would allow the government to cut off care for the critically ill…

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.

Rep. Earl Blumenauer (D., Ore.), the author of the original House legislation around state-sponsored end-of-life planning, was quite pleased with Berwick’s insertion:

After learning of the administration’s decision, Mr. Blumenauer’s office celebrated “a quiet victory,” but urged supporters not to crow about it.

“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. “This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth.”

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.”

Consider it noticed.



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