Washington Watch
Medicare Mulls the Politics and Policies of End-of-Life Care Planning
Bypassing the political process, Medicare is once again trying to pay doctors to talk to patients about “advance care planning,” including living wills and end-of-life care options.
This fight comes five years after the issue became a political inferno over “death panels,” and rationing of care. But this time, some private insurers have already begun reimbursing doctors for these “advanced care planning” discussions, prompting a push for all of Medicare to go that way.
Medicare is considering a request from the American Medical Association (AMA), the country’s largest doctors’ trade association, to designate billing codes for these conversations, allowing doctors to get reimbursed for their time in talking with patients about how they want to spend their final days – including whether they want to die at home or in a hospital, nursing home or hospice care, and whether they want complete life-sustaining treatment, just pain relief or something in between.
Right now, doctors have had to squeeze such conversations into medical appointments ostensibly held for another purpose. Many say that forces them to give short shrift to a discussion intended to help a patient — and often, family members — understand all the medical options and the risks associated with these complicated end-of-life issues. Those sessions take time and need to be carefully vetted instead of being squeezed in during medical procedures or exams.
Also, currently, doctors are not reimbursed for any phone conversations involving relatives who don’t live in the area, nor are they compensated for patients who are still healthy but want to plan ahead and discuss advance directives.
Usually, when the powerful doctors’ lobby creates these codes, they are routinely enacted. This case may be the exception. The Centers for Medicare and Medicaid Services, has not publicly discussed whether it will agree to cover end-of-life discussions, but a decision is expected this fall. If Medicare adopts the AMA recommendations, it will set the standard for private insurers, encouraging many more doctors to engage in these conversations. Medicare’s approval of billing codes could potentially affect all 50 million Medicare beneficiaries.
This is significant because people are living longer with illnesses and some people want to have a thoughtful discussion with their doctors about end-of-life care medical options before they actually have to confront those issues.
But not having the conversation means that someone else must make these tough choices – ones that can pull apart families and leave those left behind feeling guilty about the decisions made and whether everything that could be done was done.
If Medicare reimburses doctors for such discussions, as it pays them for examining patients and performing procedures, the end-of-life discussions are much more likely to happen.
Consulting with your doctors about end-of-life medical decisions would allow patients to control decision-making as their medical options narrow. Studies show that when given a choice, patients often forgo invasive procedures at the end of life. Such procedures can be costly while doing little to extend or improve the quality of the patient’s life.
Even if Medicare approves reimbursing doctors for end-of-life counseling, much needs to be worked out. The impact of this policy change could be significant but will depend on how much doctors are paid, how frequently the conversations happen, whether psychologists or other non-physicians are allowed to conduct them, and whether the conversations must be done in person and if they can include family members in the discussions.
With many people not able to talk with their doctors about such care, some private-sector companies are trying to fill that role, and make a profit. A recent National Public Radio story highlighted social workers at a New Jersey company called Vital Decisions, one developing new business that routinely cold-calls seniors to offer what they describe as “non-directed” end-of-life counseling, paid for by insurers. Such businesses have developed, in part, because elderly patients and their families want to discuss these issues and can’t easily get their doctors to sit down for an extended conversation.
Death Panels Revisited: The Politics of End-of-life Decisions
End-of-life planning remains a hot button issue politically. Like the current proposal, the provision that sparked controversy in the 2009 consideration of the Affordable Care Act, would have provided Medicare reimbursement to doctors who used office time to discuss living wills, advance care planning or other matters pertaining to patients’ end-of-life preferences. It did not require such conversations, but ensured that doctors or other practitioners would be compensated for these often difficult sessions.
But then former Alaska governor and 2008 Republican vice-presidential candidate Sarah Palin put her opinion on Facebook. “The America I know and love,” she wrote, “is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama's ‘death panel' so his bureaucrats can decide, based on a subjective judgment of their ‘level of productivity in society,' whether they are worthy of health care.”
“Such a system is downright evil," she wrote.
Whether that was an intentional misrepresentation of the proposal or a misreading of it, Palin’s attack ignited a political firestorm. Other Republicans, including then-House Republican leader John Boehner, now the Speaker of the House of Representatives, rallied on Palin’s side. "This provision may start us down a treacherous path toward government-encouraged euthanasia if enacted into law," he said at the time.
That controversy forced lawmakers to scuttle the issue altogether. Medicare tried again in 2010, adding a regulation allowing the federal program to cover “voluntary advance care planning” as part of annual wellness visits, but political pressure again forced the Obama administration to pull back and rescind that part of the regulation.
This time, in round three, the issue is certain to generate strong opposition again, but the fact that private insurers and doctors are pushing the issue, may change how the issue moves forward.
On Capitol Hill, a few bipartisan bills have been introduced that would allow Medicare to cover these conversations. One, by Rep. Earl Blumenauer, D-Ore., would require reimbursement for advance care planning. Another, by Sen. Tom Coburn, R-Okla., a doctor, who is retiring at the end of this session, would pay Medicare patients for completing advance directives.
But hardly anyone thinks such controversial legislation will move forward in an election year. Blumenauer, however, remains hopeful his bill will get a hearing free of any death panel outcry. It helps, he said, that among his 30 co-sponsors are a number of Republicans, all of whom oppose the Affordable Care Act.
Still, given the swirl of opposition generated by Palin in 2009 and again in 2010, some lawmakers privately suggest that some might even try and stop Medicare from implementing the billing codes for reimbursing doctors for advance directives as an election year gambit to motivate a larger conservative turnout in November’s mid-term elections.
The rationing of health care is a touchy issue, with ethical and moral touchstones all over the place. Politicians are extremely careful when it might appear that they are talking about something that might deny lifesaving care to someone.
But what happens at a hospital when machines are used to keep someone alive who will never wake up or leave the intensive care unit?
What Cost ‘Futile Care’?
A recent study takes a look at the hidden costs when medical care at the end of life is futile. Virtually every day in hospital intensive care units throughout the United States, patients get expensive treatment their caregivers and doctors know is not going to save their lives or even make them better.
Now, California researchers, in a Critical Care Medicine Journal article that is certain to ignite a political controversy, report that this so-called “futile” care has a hidden price: It’s crowding out other patients who could otherwise survive, recover and get back to living their lives.
The study shows that patients who could benefit from intensive care are waiting hours and even days in the emergency room and nearby community hospitals because intensive care unit beds are occupied by patients receiving futile care. The study, conducted at UCLA, found some patients died while waiting for an ICU bed.
The researchers, led by senior author Dr. Neil Wenger, a UCLA professor of primary care medicine and head of the university’s ethics center, took great care to define what they described as futile care. They surveyed every critical care doctor, every day, on every patient, to find out whether they were treating someone they didn’t think would benefit; or whether they thought the patient would never wake up; wouldn’t survive ICU; or the patient’s goals could never be met; or that the burden of care grossly outweighed the potential benefit. With that definition, the study found 11 percent of the patients were getting futile care and another 9 percent were getting “probably futile care.”
Subsequently, the researchers noted, two-thirds of the patients who received futile care died in the hospital. Eighty-five percent were dead within six months. The rest were in states that most patients, if they could talk with you, would say they wouldn’t want to be kept alive for. They were in a long-term care facility, severely demented and unable to recognize others, and many were on a ventilator.
The concept of “futile” care raises a series of difficult ethical questions such as who decides when care is futile? What if the patient’s family thinks the care is not futile – and what can doctors and hospitals do to avoid futility?
UCLA’s Wenger said the authors looked at the issue to “stimulate an open debate about whether we as Americans want our health care resources used in such a way that they sometimes don’t benefit patients while others are not receiving treatment that might help them.”
Two other options often considered for seniors nearing end of life are palliative care and hospice care. Palliative care improves the quality of life by managing pain and other problems for people who have serious life-threatening medical conditions such as cancer, heart and kidney failure. It differs from hospice care, especially because patients do not necessarily have less than six months to live as most hospice care patients do.
But a recent Washington Post series examined the upsides and downsides of the booming American hospice industry. While it can offer seniors a new source of care as they approach their last days, the series looked at:
- How some hospices treat dying patients – or fail to treat them;
- How infrequent inspections at hospice facilities raised safety concerns;
- How rising rates of hospice discharges raised questions about the quality of care at
the different facilities.
If Considering Hospice as an Option, This Series Is Worth Reading.
Graphics package: http://www.washingtonpost.com/business/economy/oversight-of-
hospice-facilities/2014/06/26/15c7a618-fd4a-11e3-8176-f2c941cf35f1_graphic.html
[Contributing to this article: NY Times; Pew Foundation’s Stateline; Newsday; Washington Post; WBUR’s Common Health]
Alan Schlein is the author of "Find It Online," and an internet consultant. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.
