Government Regulation Prompts New Look at ‘Death Panel’ Debate

Updated Jan. 5, 2011, 5:33 p.m.

White House officials say that the Obama administration will the remove controversial references to end-of-life counseling during annual Medicare check-ups from a new Medicare regulation, the New York Times reported Tuesday. The move comes just one week after the new rules were first reported in the paper. The Times writes:

While administration officials cited procedural reasons for changing the rule, it was clear that political concerns were also a factor.

Updated Jan. 3, 2011, 10:51 a.m.

What’s old is new again. As Republicans plan their strategy to go after the health care reform law “piece by piece” this year, one circa. 2009 issue looks to be poised for a comeback: end-of-life-care.

Last week, the New York Times reported that in a little-noticed government regulation issued in late November, the Obama administration decided to pay Medicare doctors for talking to their patients about end-of-life planning.

The article has touched off a new round in the back-and-forth battle over so-called “death panels.”

Democrats had originally included a similar provision in the health care reform bill, and some reform opponents seized on it to say that the legislation would set up “death panels” that would “pull the plug on Grandma.” Though Factcheck.org and others debunked the death panel myth, the political damage was done – and Democrats dropped the hot potato language from the legislation.

Now, end-of-life counseling is back – but not as part of any legislation. Instead, it was written into a nearly-700-page document pdf that sets Medicare doctors’ 2011 pay rates for all kinds of services. The regulation will allow Medicare doctors to be paid for conducting voluntary end-of-life counseling sessions during seniors’ annual wellness check-ups.

That’s somewhat different than the plan proposed in the original health reform legislation, which would have paid for separate “advance care planning” sessions for Medicare recipients once every five years.

The language in the regulation is also less specific than what was originally included in the bill – that provision would have directed doctors to inform their patients about end-of-life options including hospice care and palliative care during the advance-planning visits, the Wall Street Journal reported.

The new regulation just says that doctors can be paid for having a discussion about “an individual’s ability to prepare an advance directive in the case where an injury or illness causes the individual to be able to make health care decisions” and about “whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive.”

And in fact, Medicare doctors have already been having those discussions – and being paid for them – for two years. Since 2009, Medicare doctors have been reimbursed for having voluntary advance-planning discussions during a patient’s initial “welcome to Medicare” visit.

The health care reform bill for the first time authorized yearly Medicare “wellness visits,” or check-ups, and the new regulation will allow doctors have end-of-life planning discussions during those yearly visits too.

The New York Times reported that proponents of end-of-life planning were pleased by the new regulation – but wary of celebrating it publicly.

The Times reported that an e-mail sent from the office of Rep. Earl Blumenauer, D-Ore., the author of the original provision in the health reform law, said:

“While we are very happy with the result, we won’t be shouting it from the rooftops because we aren’t out of the woods yet. This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth. […] We would ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’ — e-mails can too easily be forwarded.”

That air of secrecy has angered opponents of health care reform – even those who might otherwise support end-of-life advance planning.

In an editorial, for example, the Wall Street Journal wrote:

The regulatory process isn’t supposed to be a black-ops exercise, but expect many more such nontransparent improvisations under the vast powers ObamaCare handed the executive branch. In July, the White House bypassed the Senate to recess appoint Dr. Berwick, who has since testified before Congress for all of two hours, and now he promulgates by fiat a reimbursement policy that Congress explicitly rejected, all while scheming with his political patrons to duck any public scrutiny.

But if Dr. Berwick’s methods are troubling, the substance is more than defensible. Certain quarters on the political right are following the media’s imagination and blasting Dr. Berwick’s decision as the tangible institution of death panels. But the rule-making is not coercive and gives seniors more autonomy, not less.

Rep. Blumenauer told The Hill newspaper last week that he regrets the “secretive” language in the memo.

“If I had seen the memo, I would have suggested it be worded differently,” he told the paper.

Some experts say that the blow-up over the end-of-life planning provision could be a sign of more such clashes to come, as the Obama administration clashes with the new Republican House.

“You’ll see a lot of game playing between the House and White House in the new Congress,” University of Virginia political scientist Larry Sabato told the Christian Science Monitor. “The Republican House will try to squeeze and restrict through the law, and Obama will try to expand and augment through rulemaking.”