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.


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Esthier on December 27, 2010 at 1:31 PM

oh yeah having jimbo ‘respect’ you speaks volumes.

right4life on December 27, 2010 at 1:37 PM

I think you mean Dork, not Dark. I’m Dark.

DarkCurrent on December 27, 2010 at 1:34 PM

That’s why I call you DC!

ladyingray on December 27, 2010 at 1:37 PM

I think it’s even more appropriate for people on Medicare to make those decisions when they are in a better frame of mind and healthy, so I’m fine with the nre rules.

Jimbo3 on December 27, 2010 at 1:30 PM

I don’t have a problem with the counseling and agree that it’s better when they’re in a better state of mind (though if this conversation hadn’t happened earlier, better late than never – I believe all should know their options).

What I have a problem with though is the incentive provided to make cost cuts through this program. Are you arguing that the Bush plan had these as well, essentially encouraging doctors to push for the cheaper option?

Esthier on December 27, 2010 at 1:38 PM

I think you mean Dork, not Dark. I’m Dark.

DarkCurrent on December 27, 2010 at 1:34 PM

:)

oh yeah having jimbo ‘respect’ you speaks volumes.

right4life on December 27, 2010 at 1:37 PM

Not nearly as much as you not liking me.

Esthier on December 27, 2010 at 1:42 PM

What I have a problem with though is the incentive provided to make cost cuts through this program. Are you arguing that the Bush plan had these as well, essentially encouraging doctors to push for the cheaper option?

Esthier on December 27, 2010 at 1:38 PM

The argument seems to be that the doctors who take Medicare and provide this counseling have a financial incentive to push for the cheaper alternatives. If you believe that (I don’t), then it would apply to the counseling provided under the 2003 bill as well as the current one.

Jimbo3 on December 27, 2010 at 1:47 PM

Not nearly as much as you not liking me.

Esthier on December 27, 2010 at 1:42 PM

stick with jimbo…just don’t let him near you if you have medical problems….

right4life on December 27, 2010 at 1:48 PM

Since my comment was first, I’ll answer your question after you respond to my comment.

I have no problem with those in hospice care having these conversations with their physicians, but it should be between the patient and the physician. The federal government has no place in coercing this discussion by rewarding the physician specifically for having this conversation.

This discussion has no place in a routine healthcare exam, unless broached by the patient.

ladyingray on December 27, 2010 at 1:35 PM

So why is it appropriate for Medicare to pay for this in the hospice setting and not in a regular care setting?

Jimbo3 on December 27, 2010 at 1:49 PM

The argument seems to be that the doctors who take Medicare and provide this counseling have a financial incentive to push for the cheaper alternatives. If you believe that (I don’t), then it would apply to the counseling provided under the 2003 bill as well as the current one.

Jimbo3 on December 27, 2010 at 1:47 PM

When this was first discussed, shortly after the “death panel” FB post, it was specifically included as a cost saving measure for ObamaCare. This wasn’t a Republican argument. It was a Democrat one.

Esthier on December 27, 2010 at 1:53 PM

stick with jimbo…just don’t let him near you if you have medical problems….

right4life on December 27, 2010 at 1:48 PM

I’m very healthy. Thanks for asking.

Esthier on December 27, 2010 at 1:53 PM

I’m very healthy. Thanks for asking.

Esthier on December 27, 2010 at 1:53 PM

VERY healthy!

AsianGirlInTights on December 27, 2010 at 1:59 PM

So why is it appropriate for Medicare to pay for this in the hospice setting and not in a regular care setting?

Jimbo3 on December 27, 2010 at 1:49 PM

I don’t think it appropriate in either case. It isn’t the government’s business. It is a private matter between the patient and the physician.

Why is it appropriate for Medicare to coerce physicians into having this discussion while private insurance companies aren’t paying for this? Or is that next on your list?

And I dare say that most people already have living wills and durable powers of attorney in place. I’ve had one since I was 28. There is no need for the government to get involved.

ladyingray on December 27, 2010 at 2:04 PM

VERY healthy!

AsianGirlInTights on December 27, 2010 at 1:59 PM

how would you know?

right4life on December 27, 2010 at 2:04 PM

how would you know?

right4life on December 27, 2010 at 2:04 PM

She’s my not so secret lover. I wear the scarlet A with pride these days.

Esthier on December 27, 2010 at 2:10 PM

Esthier, I haven’t seen anything that says this was written as a cost savings measure in Obamacare. Here’s the only thing I’ve been able to find:

——————————————————————————–

——————————————————————————–
DOCTOR’S ORDERS

N.Y. Times columnist: Death panels will save ‘a lot of money’
Paul Krugman tells ‘Roundtable’ economists agree it’s ‘going to be major’

——————————————————————————–
Posted: March 30, 2010
9:02 pm Eastern

By Bob Unruh
© 2010 WorldNetDaily

Left-leaning New York Times economic columnist Paul Krugman says the so-called “death panels” established by President Obama’s trillion-dollar nationalized health-care plan will end up saving “a lot of money” for the government.

The comments from Krugman, who also writes on the New York Times blogs, came during a discussion of “Obamacare” on the ABC News Sunday program “This Week.”

“People on the right, they’re simultaneously screaming, ‘They’re going to send all the old people to death panels,’ and ‘It’s not going to save any money,’” he said.

Another panelist interjected, “Death panels would save money,” to which Krugman responded:

The advisory panel which has the ability to make more or less binding judgments on saying this particular expensive treatment actually doesn’t do any good medically and so we are not going to pay for it. That is actually going to save quite a lot of money. We don’t know how much yet. The CBO gives it very little credit but, but most, most of the health care economists I talk to think that’s going be a really, uh a really major cost saving.
The video has been posted on the Conservatives4Palin website, and it was Palin who was among the first to denounce the “death panel” concept in the Democrats’ government-run health care plan. That’s the idea that appointed government officials who under the plan will have access to medical records will determine if a treatment will be provided to a needy patient. Theoretically, that could be a death sentence for a patient denied a treatment.

http://www.wnd.com/index.php?fa=PAGE.view&pageId=134401

If you’ve found something that I’ve missed, can you share the link?

Jimbo3 on December 27, 2010 at 2:11 PM

how would you know?

right4life on December 27, 2010 at 2:04 PM

That’s none of your business.

AsianGirlInTights on December 27, 2010 at 2:12 PM

And I dare say that most people already have living wills and durable powers of attorney in place. I’ve had one since I was 28.

ladyingray on December 27, 2010 at 2:04 PM

That would be the smart thing to do, but I don’t know how your statistic holds up. I don’t have one, and though I haven’t talked about this much with others, I wouldn’t guess that most of the people I know have one. Maybe most of the people with kids do though. It seems necessary by that point, tough I’m sure Terri would have had something to say about getting one even before that.

Esthier on December 27, 2010 at 2:14 PM

She’s my not so secret lover. I wear the scarlet A with pride these days.

Esthier on December 27, 2010 at 2:10 PM

uh I think that would be an L instead of an A…

right4life on December 27, 2010 at 2:14 PM

uh I think that would be an L instead of an A…

right4life on December 27, 2010 at 2:14 PM

That’s quite an unfounded assumption. Besides, I wouldn’t agree that it ceases to be infidelity based on the identity of my lover.

Esthier on December 27, 2010 at 2:17 PM

That would be the smart thing to do, but I don’t know how your statistic holds up. I don’t have one, and though I haven’t talked about this much with others, I wouldn’t guess that most of the people I know have one. Maybe most of the people with kids do though. It seems necessary by that point, tough I’m sure Terri would have had something to say about getting one even before that.

Esthier on December 27, 2010 at 2:14 PM

I got one when I had my son. You should get one. At your age, you are most likely not going to have this discussion with your physician.

ladyingray on December 27, 2010 at 2:18 PM

She’s my not so secret lover. I wear the scarlet A with pride these days.

Esthier on December 27, 2010 at 2:10 PM

LOL

ladyingray on December 27, 2010 at 2:19 PM

I got one when I had my son. You should get one. At your age, you are most likely not going to have this discussion with your physician.

ladyingray on December 27, 2010 at 2:18 PM

Of course I’d need to get a physician first, but I do agree. I’m too old to skip it. I figured at first that I’d wait until we had kids, but we put that off longer than I’d expected.

Esthier on December 27, 2010 at 2:22 PM

Of course I’d need to get a physician first, but I do agree. I’m too old to skip it. I figured at first that I’d wait until we had kids, but we put that off longer than I’d expected.

Esthier on December 27, 2010 at 2:22 PM

You can probably download the forms on line. All you need is a notary for the signatures. BTW, at least in Tennessee, a verbal final directive is as binding as a written one.

ladyingray on December 27, 2010 at 2:25 PM

Esthier, FYI: https://www.texaslivingwill.org.

Jimbo3 on December 27, 2010 at 2:30 PM

Jimbo3 on December 27, 2010 at 2:30 PM

Thank you.

Esthier on December 27, 2010 at 2:32 PM

I have no problem with those in hospice care having these conversations with their physicians, but it should be between the patient and the physician. The federal government has no place in coercing this discussion by rewarding the physician specifically for having this conversation.

This discussion has no place in a routine healthcare exam, unless broached by the patient.

ladyingray on December 27, 2010 at 1:35 PM

That pretty well sums it up for me too, lady.

petefrt on December 27, 2010 at 2:33 PM

Thankfully, Human Events is beating this drum. In addition to Doc Zero’s article (linked earlier in this thread) there’s this one:

Bureaucrats Secretly Implement ObamaCare

by Tony Lee in Human Events, 12/27/2010

petefrt on December 27, 2010 at 2:36 PM

I’m actually glad the White House did this – Americans need a reminder every now and then of how bad the ObamaCare legislation is …

This should do nicely to keep the “repeal” numbers up for quite awhile.

HondaV65 on December 27, 2010 at 2:37 PM

SOYLENT GREEEN IS MADE OF PEOPLE, PEEPLLLLLLLLLLLLEEE!

Africanus on December 27, 2010 at 2:43 PM

SOYLENT GREEN IS MADE OF PEOPLE, PEEPOLLLLLLLL!!!!

Africanus on December 27, 2010 at 2:44 PM

Obamacare is Terri Schiavo……

……..times 300 million!

PappyD61 on December 27, 2010 at 3:05 PM

“Aunt Maddie, it says right here in this government pamphlet that it’s patriotic to forgo the high cost of End Of Life Care. You do want to be patriotic, don’t you Aunt Maddie . . .?”

BigAlSouth on December 27, 2010 at 3:12 PM

Conversations in the not so distant future….

Doc – “T, you have cancer and it is advanced.”
T – “What are my options?”
Doc – “Well we could use this procedure and while there is a really good chance at prolonging your life or send the cancer into remission no governement program covers this procedure. We know this other procedure won’t do the same but this is what is available and it has been said it gives a few extra days.”
T – “It would probably be easier if I go jump off a bridge or something.”
Doc – “We could never advocate that, your life means to much for such an act.”

TturnP on December 27, 2010 at 4:22 PM

Just a reminder.

As I understand Palin’s FB post, she’s referring to the cost-controlling “rationing mechanism” as the Death Panel, not the end-life counselling per se.

Let’s just be honest here.

TheAlamos on December 28, 2010 at 6:08 AM

Secretary of Health and Human Services. What an oxymoronic title for a Cabinet level orifice.

Because there exists a actuarial table that can identify when your time is up. I can see the following scenario panning out.

Doctor greeting Ms. Smith on his rounds at the Long Term Care facility:

Doctor: “Good Morning Ms. Smith how are feeling today? Do you realize what today is?”

Ms. Smith: “Yes, it’s Tuesday.”

Doctor: “Very good Ms. Smith, you are correct. But today is also very special for you.”

Ms. Smith: “It is? It’s not my birthday, anniversary, Christmas has come and gone. No what is so special about today?”

Doctor: “It is check-out day.”

Mr. Smith: “But, I have not made plans with my family to take care of me yet. Can I get back with you before going home?”

Doctor: “No need to worry about those things at all. We will notify them for you.”

Ms. Smith: “Thank you, you the staff and government have made my stay enjoyable and now I can go home and be with my family.”

Doctor: “You are welcome Ms. Smith and have a safe trip.”

On leaving Mr. Smith the Doctor quietly unplugs the respirator, and other monitors, and turns out the lights as he exits the room.

Ms. Smith: “Doctor!! I thought you turned out the lights but they are still on, you better call maintenance to fix em.”

MSGTAS on December 28, 2010 at 9:40 AM

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