Surprise! End-of-life advisory incentives return — through regulation
posted at 12:00 pm on December 26, 2010 by Ed Morrissey
Better get used to this process, because it’s how President Obama will be pushing his agenda on all fronts. The New York Times reports today that the White House will create incentives for doctors to discuss “options” for end of life care through regulation, after Congress removed the incentives from ObamaCare:
Under the new policy, outlined in a Medicare regulation, the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment.
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.
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.
There is nothing wrong with patients planning for contingencies through advance directives. There is also nothing wrong with doctors discussing those options with patients ahead of those decisions. As the spouse of a patient who has faced life-threatening circumstances on more than one occasion, I certainly understand why these conversations need to take place before the pressures of acute circumstances come into play. This new regulatory effort at least puts the conversation where it belongs, in routine wellness visits, rather than as a five-year set conversation. It also appears to make this a voluntary conversation (at least for now), one the patient can decline without any repercussions.
There is, however, something at least vaguely disturbing about a government incentivizing doctors to do so as part of an expansive regulatory program that has, as one of its primary goals, cost reduction. The process used by Obama and Kathleen Sebelius to get this into ObamaCare is more disturbing, and in a very specific way. Congress made it clear that it didn’t want this incentive as part of the new law. However, thanks to the miles and miles of ambiguity in the final version of ObamaCare, with its repetitive the Secretary shall determine language, Congress has more or less passed a blank check for regulatory growth to Obama and Sebelius.
This is just the opening gambit of a strategy Obama will use throughout the coming year in order to achieve through regulation what a Democrat-run Congress could not deliver through legislation. The new Republican House will have to use its power of the purse to stop this autocratic imposition of regulation, and remain vigilant in doing so on all fronts. Let’s hope the GOP gets used to fighting this process over the next two years.