The Return of Death Panels? Government-Funded End-of-Life Counselling is Morally Questionable
A version of this Health Alert appeared at Forbes.
Are death panels on the rebound? Obamacare envisioned Medicare paying physicians to discuss end-of-life-care with their patients. When this sparked fierce blowback from citizens who feared that “death panels” would ration care to elderly patients, the Administration backed off.
However, the American Medical Association (AMA) has been lobbying for the execution (pun intended) of this provision. The AMA is a business which profits from its monopoly over the billing codes that physicians use when they submit claims to Medicare. The more billing codes there are, the better it is for the AMA.
For patients, however, it is risky to allow the government to pay physicians to counsel us on end-of-life issues. There is another approach, but it is so emotionally challenging that it may be impossible to implement.
End-of-life planning is back on the radar screen because of a very thorough report just released by the Institute of Medicine (IoM). It comprises a wealth of information on the state of end-of-life planning in America today. Unfortunately, it contains a dangerous recommendation: Government-funded counseling.
At its best, end-of-life counseling would ensure that patients are well informed about the costs and benefits of intense medical intervention at the end of life. Although dissatisfied with where we stand today, the report notes progress: In the last two decades, palliative and hospice care has grown tremendously. By 2011, a majority of hospitals had palliative-care programs. Almost half of adults over 40 have an advanced-planning directive and have discussed care preferences with a loved one.
It would be great if that figure moved up towards 100 percent. Some private insurers have begun covering end-of-life counseling that leads to signing advanced-planning directives, paying between $50 and $350 to doctors for providing these services. The IoM report cites Aetna’s “concurrent care model”, used commercially and in Medicare Advantage, which assigns nursing-care managers with palliative expertise to patients with a prognosis of about twelve months. This led to more than doubling the use of palliative care (from 30 percent of cases to 70 percent) and significantly reduces costs.
Despite some effective examples, there is strong general evidence that dying patients’ wishes are not fulfilled by their physicians. Most physicians state that they would conform to an advanced-planning directive, even if a patient’s relative requested different care. However, physicians’ behavior does not correspond to their statements. The report concludes that “the default is to treat.”
There is no clear-cut reason why. Physicians sometimes state that they do not trust advanced-planning directives, especially if they are a few years old. A relative may state that the directive is out of date, and might seek to override it, introducing legal risks for the physician. However, there are virtually no cases of families suing physicians who honor a patient’s preference for less aggressive care.
Nevertheless, there are other problems, too. Prognosis is often difficult for some conditions. Most expensive care is delivered within six months of death. That is easy to state after death, but who knows when the 6-month clock starts ticking? Further, it is not always clear what the advanced-planning directive is directing: “The usefulness of simple checkbox-style documents has come into question,” as the IoM report gently puts it. These problems might explain why evidence that such planning reduces end-of-life costs is limited and weak.
Current government spending on end-of-life care is already showing cracks, demanding more regulation as providers learn how to game the system. Hospice care is becoming problematic for Medicare: New legislation will require hospices to be inspected every three years (instead of every eight). One of the problems leading to increased oversight is that some hospice patients are surviving longer than 180 days, leading to suspicion that these patients are not at the end-of-life, but being hotelled at taxpayers’ expense.
Government payment for counseling would lead to even more regulation and oversight of all facets of these very personal decisions. It would also be morally questionable: The conflict of interest between the government’s fiscal needs and patients’ medical needs would likely reduce trust among the patients who need these services the most. The battle cry of “death panels” anticipates such a loss of trust.
There is a way to make a (close to) perfect contract for Medicare patients. However, it is so emotionally charged that I doubt it would ever be taken up. Oh well, here goes: We could take Dr. Ezekiel Emanuel seriously.
Dr. Emanuel wants to die at 75, 18 years from now. What concerns him is a long old age characterized by feebleness. Dr. Emanuel insists that he will be very discriminating about which treatments he will accept. His goal is to turn around the default: Instead of defaulting to treatment, the default will be palliative care.
Let’s take Dr. Emanuel at his word. He could commit to dropping Medicare on his 75th birthday, and the government could cut his payroll taxes proportionally. (As he is already 57, he might be due a refund). The same offer would go out to every American. Those who choose an end-of-Medicare date would get a tax cut, which they could use to finance private insurance that covers only palliative and hospice care (deferred until the age they drop Medicare), or save to pay for such care directly.
Doable? Not likely. Nevertheless, it would be a better solution than allowing Uncle Sam to take control of our end-of-life planning.
This appears to be a play out of the NHS playbook in the UK. Physicians there are encouraged and financially incentivized to discuss end of life with patients. Thanks for the clear reporting and analysis
Personally, I don’t have any problem with paying doctors for end of life discussions. The main reason that treatment is currently the default is providers’ fear litigation in the absence of clear documentation to the contrary or the patient being able to clearly state his own preferences which he often cannot. We need more people to execute living wills or advance directives and the information should be stored on a database so it’s readily available to doctors and hospitals when needed. People could receive reminders every year or two to affirm their current end of life care wishes or change them.
I think it’s equally, if not more, important for elderly folks to communicate their end of life care wishes to their spouse, adult children and other relatives who might be involved in making care decisions on their behalf at some point. Often the problem is that middle age adult children haven’t yet come to grips with their own mortality and can’t let go when their relative is at the end of life.
I think it would also be helpful if people expressed what care they want and don’t want if they have certain specific diseases or conditions including Alzheimer’s or dementia, late stage cancer, advanced congestive heart failure and ESRD. For other conditions, family members could infer guidance based on the specific conditions covered in the documentation.
On the financial front, people could be offered a lower Medicare or commercial insurance premium if they choose more conservative treatment at the end of life and a higher premium if they want a full court press. The fact is that financial resources are finite. I think the prevailing attitude among too many Americans when it comes to healthcare is I want what I want when I want it and I expect someone else to pay for it. That needs to change and soon.
Without a doubt physicians and physician extender SHOULD be compensated to provide calm, clear, objective end of life counseling. It is and should be an option for ANY terminally ill patient. Opponents are, in my opinion, expressing reactionary noise. Discussing with a patient and family members end of life options has NOTHING to do with Death Panels…..crazy, uninformed noise….
This is a most ludicrous suggestion. According to a recent court decision, if you resign from Medicare you lose your monthly Social Security payments. If this was not the case I would gladly resign from Medicare as fewer and fewer MDs are accepting patients with this insurance. Unfortunately the Canadian solution will most likely prevail – put the old folks on longer waiting lists! Perhaps they will pass on before they get to see a physician.
Having a good deal of both personal and professional experience with this issue – I agree with most of your critique of the present state of affairs. However, as already noted, you cannot stop Medicare without also stopping Social Serurity under current laws. The Medicare Trust Fund is in much more imminent financial trouble and allowing more people drop out of contributing to Medicare may make sense in the long run but the immediate impact is problematic fiscally. Like another commenter – you are equating end of life counseling with the very loaded term of “death panel” – these are not at all the same thing.
As with virtually every aspect of health care and financing there are definitely abuses in the provision of care at every level and definitely at the end of life. There are definitely some scam artists in the medical profession and at certain facilities – but there are many very dedicated professionals and facilities for those at the end of life, too.
We tend to use much too broad a brush when looking at this issue.
Good morning, John:
While we agree that less government is better for health care, the issue of end-of-life care is one that should not be politicized. Fox News scary-phrases like “death panels” have the intellectual weight of Sarah Pallin’s IQ.
I was one of the lawyers for the California Medical Association when we drafted the first “living will”–a one page document. The term living will came from an in-office discussion of end-of-life care for terminal patients unable to communicate. Everyone bemoaned the fact that the patient could not express his/her wishes. So yours truly, freshly out of law school with the study of trusts, wills and estates recently under my belt, unthinkingly blurted out, “Too bad the patient isn’t dead, because the will would direct us what to do with the body.” Hence the beginning of the use of the term “living will.”
The phrase “advanced directive” is much more tactful, but more oblique. The document now runs tens of pages.
Every American should have one. It is in each individual’s interests to see that his/her wishes are met; it is in the best interests of the patient’s family to avoid unnecessary depletion of family asset and interfamily disputes about the prolongation of life; it is in the best interests of society at large because it will save billions of dollars.
There is one simple change in the law that the government can make. Even though laws regarding death and testamentary documents are traditionally governed by state law, Congress should step in to make the directives universal, so they can be uniform from state to state.
In so doing, Congress should switch the legal presumption underlying the “living will” statute. When we wrote the first living will statute in California, polling showed that about 75% of the people wanted heroic measures to be taken at the end of life and about 25% preferred to forego such measures. Today that polling is reversed. The law should reflect that change in attitude. So under the law as first drafted and as remains on the books today, patients have to opt out of heroic care. Instead, patients should still be given free choice to have heroic measures taken, but in deference to the majority, they should have to affirmatively state that preference; they should have to opt in to heroic care.
Good morning, John:
While we agree that less government is better for health care, the issue of end-of-life care is one that should not be politicized. Fox News scary-phrases like “death panels” have the intellectual weight of Sarah Pallin’s IQ.
I was one of the lawyers for the California Medical Association when we drafted the first “living will”–a one page document. The term living will came from an in-office discussion of end-of-life care for terminal patients unable to communicate. Everyone bemoaned the fact that the patient could not express his/her wishes. So yours truly, freshly out of law school with the study of trusts, wills and estates recently under my belt, unthinkingly blurted out, “Too bad the patient isn’t dead, because the will would direct us what to do with the body.” Hence the beginning of the use of the term “living will.”
The phrase “advanced directive” is much more tactful, but more oblique. The document now runs tens of pages.
Every American should have one. It is in each individual’s interests to see that his/her wishes are met; it is in the best interests of the patient’s family to avoid unnecessary depletion of family asset and interfamily disputes about the prolongation of life; it is in the best interests of society at large because it will save billions of dollars.
There is one simple change in the law that the government can make. Even though laws regarding death and testamentary documents are traditionally governed by state law, Congress should step in to make the directives universal, so they can be uniform from state to state.
In so doing, Congress should switch the legal presumption underlying the “living will” statute. When we wrote the first living will statute in California, polling showed that about 75% of the people wanted heroic measures to be taken at the end of life and about 25% preferred to forego such measures. Today that polling is reversed. The law should reflect that change in attitude. So under the law as first drafted and as remains on the books today, patients have to opt out of heroic care. Instead, patients should still be given free choice to have heroic measures taken, but in deference to the majority, they should have to affirmatively state that preference; they should have to opt in to heroic care.
Physicians should be compensated for their time in discussing advanced directives with patients, but so should social workers, Social Security personnel, senior center personnel–anyone deployed to increase the utilization of advanced directives. Some have even suggested making an advanced directive a condition of getting a drivers’ license–especially for seniors.
This is not, and should not be a political issue. Every day across the country many patients’ personal wishes are not being followed because they have not been recorded; billions of dollars in care are spent unnecessarily.
I just returned from the Dartmouth Health Summit sponsored in part by the Fix-the-Debt organization. If we do not engage in a national unified effort to cut health care costs on every front–including the use of advanced directives–we will bankrupt our country. So let us refrain from partisan phraseology, like “Death Panels” and engage in serious and collaborative efforts to tackle these issues together. In the end, it affects us all equally.
Cheers,
Charlie Bond
Charlie,
Excellent as always …
It is my understanding that doctors can submit charges for ‘consultation’ … on most maladies and surgeries. (i.e. discussing with their patients the ramifications and risks of heart transplants, tonsillectomies, vasectomies, colonoscopies, broken arms, etc.) It is also my understanding that the Palinist ‘kill granny’ legislation simply allows reimbursement to doctors ‘if’ their patients wish end-of-life counseling from their doctors. Correct me if I am wrong.
I don’t think anyone has a problem with doctors being reimbursed for educating their patients with the statistical effectiveness of heroic and/or palliative treatments…. It seems that the issue is government money vs. insurer money. Please don’t tell me that it is simply that petty. ???
End-of-life discussions are a worthy endeavor. I don’t have a problem with paying physicians to have these discussion. My only concern involves making sure the discussions have merit. Furthermore, the discussions also needs to be recorded, readily accessible and communicated to the seniors’ kids. Too often, people on their deathbed hold on because their kids haven’t come to grips with their parents’ inevitable demise.
Though end-of-life counseling, advanced directives, living wills, and discussions with next of kin are all good tokens … we all know that when death stares someone in the face, panic sets in and many patients grasp for any additional moments they can get … (public) cost be damn. I’ve also observed that family sentiment often changes in direct correlation to the increase of personal/estate liability. Is rationing or age based triage inevitable in Medicare and Medicaid?
Advanced directives are seriously flawed, no one can predict the future and what their needs would be, it is decision in the abstract. The answer, HSAs that with remaining funds can be transferred to the HSA as per the patients wish upon death. Conflicts could be resolved if necessary by the courts, but would be very rare. Today families have no cost to avoid death of a member as long as possible and in some cases reasons to put it off.
End-of-life conversations are important and doctors should be reimbursed for having them. This issue affects all of us and should not be politicized using scary language about “death panels” and government control. In fact, the same team of professionals would have the same conversation, whether reimbursed by Medicare or private insurance.