Dissecting the Problem with "Death Panels"

Charges that Congressional health legislation contains so-called "death panels" is the sort of hyperbole that obscures the real problems with the end-of-life provisions that are actually contained in the current health care bill.

First, the charge: Advanced in recent weeks, is the false assertion that President Obama's health care proposals--embodied most clearly in HR 3200--would create government-sponsored "death panels" to decide which patients were worthy of living.

What's actually in the bill? A Medicare provision written by Rep. Earl Blumenauer, D-Ore., would pay doctors for voluntary counseling sessions that address "end-of-life" issues.

By including such specific criteria for when doctors should be reimbursed for providing this kind of counseling, Congress is expressing its values not only for when these "end of life" discussions should occur, but what medical conditions should trigger them.

The provision, which is contained in section 1233 of HR 3200 and entitled "Advance Care Planning Consultation," is prescriptive as to when these consultations should occur, and be reimbursed. Among other things, it says "advanced care planning" consultations for senior citizens can take place every five years, and more often "if there is a significant change in the health condition of the individual . . . or upon admission to a skilled nursing facility, a long-term care facility . . . or a hospice program."

Why were these provisions included? Not to offer doctors the chance to be paid for providing this kind of end-of-life counseling. Doctors are already reimbursed under Medicare for addressing these issues. For example, Medicare allows doctors to bill for "extended face time" when they provide in depth counseling to patients. Many doctors bill under this face-time "code" when the spend time with patients discussing end-of-life issues.

Moreover, there's nothing to suggest doctors will be paid more under the new counseling provisions. Medicare pays doctors according to a formula that gauges the "intensity" of a physician's work. The billing codes used to account for "extended face time" will generally mirror the codes created under the new legislative provisions for "end of life counseling." After all, the "intensity" of the work would be the same.

Nor can these provisions be justified solely on the desire to encourage doctors to address these issues. End-of-life discussions have become routine in medical practice. Many hospitals have programs to promote discussion of "do not resuscitate" orders when patients face life-threatening illnesses, often right on admission to the hospital. Some states, including New York, have passed laws mandating that these discussions take place.

That gets to the problem. By including such specific criteria for when doctors should be reimbursed for providing this kind of counseling, Congress is expressing its values not only for when these "end of life" discussions should occur, but what medical conditions should trigger them. A severe head injury? Admission to a nursing home? Seemingly terminal cancer? All would qualify as "end-of-life" scenarios under the House legislation, notwithstanding the nuances of a particular clinical circumstance. This sort of legislative text doesn't live in isolation. It is an expression of Congressional intent, and will become a map for future legislation and regulation for what defines an "end-of-life" medical scenario.

Congress didn't need to include this sort of specificity. It didn't need to wade into the waters of defining when death is near. Congress could have simply drafted a provision to enable doctors to bill for this kind of counseling, regardless of the clinical scenarios, rather than continue billing for this time under other, less specific Medicare codes such as "extended face time." By including specific clinical circumstances that should trigger reimbursement for these discussions, and dictating how frequently this counseling should occur, Congress is making judgments about when it believes life is near its end.

Ironically, this specificity may actually have the unintended consequence of discouraging these sorts of discussions. By laying out so many prescriptive hoops and clinical circumstances for when these discussions ought to occur, some doctors may judge that their patients don't meet the regulatory specifications of the new Medicare billing codes.

So why did Congress feel compelled to lay out its clinical judgment in legislation? It's trying to direct doctors through the only tool readily available--its power of the purse. This is crude, clumsy, and ultimately corrupting to both the practice of medicine and the local conventions and personal preferences that drive these kinds of difficult clinical decisions. It's a leitmotif for what's to come as Washington assumes more control over health care choices.

Scott Gottlieb is a resident fellow at AEI.

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