by Patricia Mayer, MD, Bioethics Program Alumna (2009)
Run for the hills: federally-funded Death Panels are back!
Ok, that was a bit of a cheap shot. But many of us in medicine – especially those in hospice and palliative care – are still incensed by the “Death Panel” scandal.
As many know, the myth of the “Death Panels” almost derailed health care reform in the Summer of 2009. Sarah Palin, one-time candidate for Vice President, posted a scathing critique of health care reform on Facebook. In that critique, she decried the inclusion of federal “Death Panels” as part of the Affordable Care Act. In a follow-up post, Ms. Palin specifically mentioned Section 1233 of the bill, implying that this section sanctioned the creation of these panels, whose purpose would be to decide who was “worthy of health care”. The claim went viral. Within a couple of weeks, 86% of Americans had heard of the phrase “Death Panels.” Half of those actually believed that they existed.
In fact, no section of the Affordable Care Act (then or as passed into law) included any determination of which patients were or were not worthy of health care. As proposed, the oft-cited (and maligned) Section 1233 simply provided coverage under Medicare for advance care planning consultations. Every five years, a physician would be able to bill Medicare for a visit whose purpose was to discuss advance care planning with a patient. As this Section specified, doctors could bill for discussions of “the level of treatment indicated [which] may range from an indication for full treatment to an indication to limit some … specified interventions”. So the charge that these visits were to tell the elderly “ how to end their life sooner” was clearly untrue. There was no language at all that sanctioned limiting the care provided to patients. Rather, these voluntary visits were simply designed to help patients complete advance directives (ADs), should they wish to do so. Patients were free to specify in their advance directives that they wanted no limitations on treatment, or they could specify when they wanted to forgo particularly invasive treatments. It was their choice, not their physician’s.
Advanced directives are considered vital in providing proper care and treatment, particularly the types of care people want and the types of treatments that they do not want. The Joint Commission – which accredits more than 20,000 health care organizations and programs in the United States – actually requires hospitals to inquire about ADs at every admission, to honor these directives when patients have them, and to offer educational materials and assistance in drafting these documents for patients who do not already have them.
Despite claims to the contrary, Section 1233 of the Affordable Care Act simply attempted to make the existing advance planning process simpler by encouraging patients to have these conversations with their primary care physicians. Having such a conversation is often easier as a healthy or healthier outpatient than as a sick or dying inpatient. However, public outcry about mythical death panels was so great that the provisions of Section 1233 were left out of the Affordable Care Act when it was signed into law in 2010.
So, why were we who work in hospice so upset about the death panel myth? Quite simply, the notion of federal death panels fed into misconceptions about hospice that we’ve tried for years to erase. Many people already think that hospice provides (and even encourages) euthanasia, a claim that is simply not true. In addition to fighting the “hospice kills people” myth for years, suddenly we also had to confront the “death panels” myth.
Thankfully, the Obama Administration has been determined to encourage and support advance care planning. It has managed to do so with little fanfare or notice. In January 2011, for example, Medicare began paying doctors for advance care planning discussions (just as Section 1233 had intended) in the context of the newly covered annual wellness visit.
But now we have a new twist on this old story. Conservative Senator Tom Coburn (R – OK), a physician himself, has introduced legislation that would actually pay eligible Medicare beneficiaries $50 if they complete an advance directive. Patients get $75 if they do so online. This legislation would also establish a process for accrediting advance directive vendors, and it would create a registry of advanced directives accessible by clinicians, institutions, and health care proxies.
Had this legislation had been introduced by a Democrat in early 2009, Ms. Palin would likely have complaining that the federal government is bribing patients to forgo treatment. The cacophony would have been deafening: We are paying Grandma to die!
If we are serious about wanting people to have ADs, however, we must consider this idea carefully. As angry as those of us who work in hospice are about the “death panel” claim, we need to get over our bitterness. This idea deserves fair consideration, even if it originates from the “death panel” party.
Senator Coburn’s proposal is a good one. It would increase the number of patients with advance directives, empower both them and their health care providers. Patients are more likely to get the types of care they want. Health care providers will also have guidance on the types and limits of care desired by patients. Too often patients admitted to the hospital lack decision-making capacity. Without well-informed surrogates or advance directives, the clinical team has no guidance about an individual’s treatment preferences. So they tend to err on the side of caution, doing everything and anything they can to prolong a patient’s life. This scenario often leads to patients receiving a great deal of invasive, hi-tech, and sometimes inappropriate treatments that they may (or may not) have wanted.
We know we need to increase the number of patients with advance directives, so why not try Coburn’s idea?
[The contents of this blog are solely the responsibility of the author and do not represent the views of the Bioethics Program or Union Graduate College.]