Thursday, August 13, 2009

End of life counseling issue needs clarity

Washington Post columnist Kathleen Parker weighs in on the substance and tone of the debate surrounding the end of life counseling previsions of HR 3200:

Unfortunately, Palin's more thoughtful comments followed a made-for-the-tabloids Facebook post suggesting that under President Obama's health care reform, a "death panel" would kill her elderly parents and her Down syndrome baby.

Once upon a time, radical reformers could only dream of such helpful enemies. Now that the world is chasing hyperbole, we indeed risk overlooking troublesome language in the end-of-life section of the House health bill, aka Section 1233 of HR 3200.

For purposes of civil discourse, let's assume that no one wants to kill off old people.

She seems to agree with me that it's impossible to be sure in reading the bill whether the counseling provision is mandatory or not:

In practice, however, the debate is over whether these consultations are conclusively voluntary -- and the bill, to the extent it is comprehensible at all, is vague enough to cause concern.

A lot of folks on both sides of this debate seem pretty cock sure about what the bill really says. I have called them out to explain the legalese to the rest of us. So far no one's stepped up to the plate.

If nothing else there's the concern for unintended consequences:

It would be nice to think that everything goes as intended by patients, but we can safely assume that when human error collides with bureaucratic efficiency, nightmarish enforcement scenarios could ensue.

The health benefits advisory committee, many of whose members, according to the bill, would be appointed by the President, will have a large role in determining health care benefits, and the vaguer the language of the bill the more power they'll have.

And this, from Parker's article, is chilling:

Not least, the bill is an enabling document that leaves great discretion to the secretary of health and human services to develop guidelines that ultimately could change the character of what seems to be offered.

In just one of dozens of examples, the bill leaves it to the secretary to develop "quality measures" on end-of- life care and advanced care planning.

What might such quality measures look like? Who knows? But other documents floating around hint at what the secretary might consider.

One is a 2008 Rand Corp. report, "Advance Directives and Advance Care Planning: Report to Congress," which suggests mechanisms by which poor "advance care planning" could be viewed as "medical error," otherwise known as malpractice.

Here's the section of the bill on “quality” measures, starting on page 431 line 16:





19 TIVE.—Section 1848(k)(2) of the Social Security Act

20 (42 U.S.C. 1395w–4(k)(2)) is amended by adding at

21 the end the following new paragraphs:


23 TIVE.—

24 ‘‘(A) IN GENERAL.—For purposes of re-

25 porting data on quality measures for covered


1 professional services furnished during 2011 and

2 any subsequent year, to the extent that meas-

3 ures are available, the Secretary shall include

4 quality measures on end of life care and ad-

5 vanced care planning that have been adopted or

6 endorsed by a consensus-based organization, if

7 appropriate. Such measures shall measure both

8 the creation of and adherence to orders for life-

9 sustaining treatment.


11 Secretary shall publish in the Federal Register

12 proposed quality measures on end of life care

13 and advanced care planning that the Secretary

14 determines are described in subparagraph (A)

15 and would be appropriate for eligible profes-

16 sionals to use to submit data to the Secretary.

So, even if the counseling is voluntary it will become a performance measure! Now, if doctors are to be reimbursed for end of life counseling who's to say there won't be penalties for failure to counsel according to the government's performance standards?

As Wesley Smith points out:

The bill might not create punishments, but the regulations that would be created in the shadows outside the direct democratic process could.

1 comment:

Roy M. Poses MD said...

I have to admit that up to now I had thought most of the discussion of "death panels" etc was hysteria.

But the items on "quality measures" for advanced care planning gave me pause.

Advanced planning "orders for life-sustaining treatment" are generally only orders to restrict life-sustaining treatment. A "quality measure" that tabulates the creation of such orders seems to imply that the government would regard less aggressive end of life care as better, in general.

Maybe this was just badly, hastily written legislation, but it sure is worrisome.

Good work picking this up!