Medicare may soon cover “death panels”

The expression “death panel” was coined in August 2009 by former Alaska governor Sarah Palin, during the nationwide debate about the proposed Patient Protection and Affordable Care Act, better known as Obamacare.

Referring to Section 1233 of HR 3200, the House version of Obamacare, which would have paid physicians for counseling Medicare patients about living wills, advance directives, and end-of-life care options, Gov. Palin expressed her concern that the proposed legislation would create a “death panel” of unelected bureaucrats who would decide whether Americans—such as her elderly parents or her child, Trig, with Down syndrome whom the vicious Left said she should have aborted —were “worthy of medical care.”

Sarah with baby Trig

The Left immediately demonized Palin and derided her claim as the “death panel myth.” Nevertheless, “death panel” instantly became a meme that penetrated through the minutiae of the 906-page long Obamacare legislation, arousing much public concern. As a result, the provision to pay physicians for providing voluntary counseling was removed from the Obamacare law that Congress passed and Obama signed into law in 2010.

But that’s not the end of the story, for Sarah’s “death panel” is back, via Medicare.

In 2010, Medicare added coverage of “voluntary advance care planning” in patients’ annual wellness visit to one of the myriad of regulations on how Obamacare is to be enforced. Altogether, Obamacare regulations are now 30 times longer than the law itself! But bowing to political pressure, Medicare rescinded that portion of the regulation, saying it had not considered the viewpoints of members of Congress and others who opposed it.

Now that Obamacare is (more or less) firmly in place and talk of “death panels” has subsided, Medicare is trying again.

The New York Times reports that next year, Medicare may begin covering “end-of-life discussions” if it approves a recent request from the American Medical Association (AMA), the largest association of physicians and medical students in the United States. One of AMA’s roles is to create billing codes for medical services which are used by doctors, hospitals and insurers. It recently created codes for end-of-life conversations and submitted them to Medicare.

Dr. Barbara Levy, chair of the AMA committee that submits reimbursement recommendations to Medicare, said, “We think it’s really important to incentivize this kind of care. The idea is to make sure patients and their families understand the consequences, the pros and cons and options so they can make the best decision for them.”

The Centers for Medicare and Medicaid Services (CMMS), which runs Medicare, would not discuss whether it will agree to cover end-of-life discussions; its decision is expected this fall. But the agency often adopts AMA. recommendations, which are developed in meetings attended by CMMS representatives.

If Medicare adopts the change, its decision will also set the standard for private insurers, encouraging many more doctors to engage in these conversations.

Wanting to avoid situations in which they have to decide for incapacitated patients who have no family or state preference, some doctors already conduct “end of life” conversations for free (i.e., unreimbursed) or shoehorn them into other medical visits.

Experts say if Medicare covers end-of-life counseling, that could profoundly affect the American way of dying. But the impact would depend on how much doctors are paid, the allowed frequency of conversations, whether psychologists or other nonphysicians would conduct them, and whether the conversations must be in person or could include phone calls with long-distance family members. Paying for only one session and completion of advance directives would have limited value, experts say.

Susan Pisano, a spokeswoman for the trade association America’s Health Insurance Plans, says some private insurers already are reimbursing doctors for “end of life counseling.” The industry, which usually uses Medicare billing codes, already had created its own code under a system that allows that if Medicare does not have one, and more insurance companies are using it or covering the discussions in other ways, including:

  • This year, Blue Cross Blue Shield of Michigan began paying an average of $35 per conversation, face to face or by phone, conducted by doctors, nurses, social workers and others.
  • Cambia Health Solutions, which covers 2.2 million patients in Idaho, Oregon, Utah and Washington, started a program including end-of-life conversations and training in conducting them.
  • Excellus Blue Cross Blue Shield of New York does something similar, reimbursing doctors $150 for an hourlong conversation and $350 for two hours.

End-of-life planning has also resurfaced in Congress. Two recent bipartisan bills would have Medicare cover such conversations, and a third, introduced by Senator Tom Coburn (R-Oklahoma), would pay Medicare patients for completing advance directives. 

But few people think the bills can pass.

Dr. Phillip Rodgers, co-chairman of public policy for the American Academy of Hospice and Palliative Medicine, said, “People are so careful about getting anywhere close to the idea that somebody might be denying lifesaving care.”

As they should!

Burke Balch, director of the Powell Center for Medical Ethics at the National Right to Life Committee, said in a statement that many doctors believed in “hastening death for those deemed to have a ‘poor quality of life.’ ” If Medicare covers advance care planning, he said, that plus cost-saving motivations will pressure patients “to reject life-preserving treatment.”

It is unclear if advance care planning saves money, but some studies suggest that it reduces hospitalizations because many people prefer to die at home or in hospices. Dr. William McDade, president of the Illinois State Medical Society that had asked the AMA to create codes for the discussions, admits that cost-saving can be an “inadvertent” result.

Although “end of life” conversations do not lock patients into decisions and some people later change their minds in a crisis, evidence suggests that those discussions do make a difference. One study found that cancer patients who previously discussed end-of-life preferences with doctors more often received care matching those wishes. Other studies suggest planning lowers stress in patients and families.

What do you think?

Are you concerned that, if approved by Medicare, some doctors and non-physicians might use “end of life” discussions to sway the elderly toward an earlier death?

Once approved by Medicare, such discussions most likely will spread to Medicaid.

I’m always in favor of everyone taking charge of our wellbeing, being maximally informed about our medical condition and prognosis, and thoroughly thinking through our end-of-life scenarios by having a will and advance directives, and appointing a trusted family member with medical power-of-attorney. But I also fear that the federal government’s (via Medicare) institutionalizing “end of life counseling” will be another of those slippery slopes — or the proverbial frog in the slowly-heating pot of water — at which our government has proven itself to be a master.

~Eowyn

Dr. Eowyn’s post first appeared at Fellowship of the Minds.

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