January 6, 2011
Obama Admin. Reverses Course on End-of-Life Provision
On New Year’s Day, the government implemented new Medicare fee policies for physicians including a “voluntary end-of-life care” provision that would reimburse doctors for advising patients on end-of-life care. The following Tuesday, the Obama administration announced the revised regulations would remove the provision, effectively halting renewed controversy almost before it began.
The controversy threatened to re-ignite shortly after a memo from the office of Rep. Earl Blumenauer (D-Oregon) became public. (Blumenauer wrote the original end-of-life provision.) The memo celebrated the inclusion of the end-of-life provision in the Medicare regulations, which were released November 29 with little scrutiny. “The longer this goes unnoticed, the better our chances of keeping it,” according to the memo. The memo advised proponents to keep the inclusion “quiet” in order to avoid “the ‘death panel’ myth.”
A similar provision was dropped from the health care reform bill before it passed in 2009. At the time, detractors such as Republican congressmen John Boehner (R-Ohio) and Thaddeus McCotter (R-Mich.) protested funding end-of-life discussions between doctors and patients as the first step on a slippery slope toward “government-encouraged euthanasia.” Sarah Palin also stirred controversy over the end-of-life provision in the health care reform bill calling it a “death panel” mandate.
The National Right to Life Center indicated similar concerns with both versions of the provision. "The danger is that subsidized advance care planning will not just discover and implement patient treatment preferences but rather be used to nudge or pressure older people to agree to less treatment because that is less expensive," Burke Balch, director of NRLC's Robert Powell Center for Medical Ethics, said in a recent statement.
Opponents accused the Obama administration of achieving their goal to implement Medicare funding of end-of-life care through regulation rather than legislation. However, former New York lieutenant governor Betsy McCaughey, an outspoken critic of end-of-life provisions in health legislation proposed in the early 1990s as well as 2009, drew a distinction between the Medicare funding policy and health care legislation. Medicare should provide reimbursement for voluntary end-of-life counseling, she said. "But government should never prescribe what is discussed between doctor and patient, or pressure doctors financially to push their patients into living wills and advanced directives.”
The proposed new Medicare rules released last July did not include the end-of-life provision. However, the provision was included in the policies as released November 29. “We realize that this should have been included in the proposed rule, so more people could have commented on it specifically,” an administration official said Tuesday.
The New York Times speculated that White House administrators did not want a “distraction” to their defense of health care reform laws from the incoming Republican majority in the House.
The House is expected to vote on a proposed repeal of the health care reform bill next week. Rep. Eric Cantor (R-Va.) will introduce the repeal bill, which calls the 2009 health care reform bill a “job-killing health care law.” Republican leaders expect the repeal to pass the House, where they now hold the majority, but Democrats warn it will stall in the Senate.