U.S. Alters Rule on Paying for End-of-Life Planning

By ROBERT PEAR, the New York Times
Published: January 4, 2011

WASHINGTON — The Obama administration, reversing course, will revise a Medicare regulation to delete references to end-of-life planning as part of the annual physical examinations covered under the new health care law, administration officials said Tuesday.

The move is an abrupt shift, coming just days after the new policy took effect on Jan. 1.

Many doctors and providers of hospice care had praised the regulation, which listed “advance care planning” as one of the services that could be offered in the “annual wellness visit” for Medicare beneficiaries.

While administration officials cited procedural reasons for changing the rule, it was clear that political concerns were also a factor. The renewed debate over advance care planning threatened to become a distraction to administration officials who were gearing up to defend the health law against attack by the new Republican majority in the House.

Although the health care bill signed into law in March did not mention end-of-life planning, the topic was included in a huge Medicare regulation setting payment rates for thousands of physician services. The final regulation was published in the Federal Register in late November. The proposed rule, published for public comment in July, did not include advance care planning.

An administration official, authorized by the White House to explain the mix-up, said Tuesday, “We realize that this should have been included in the proposed rule, so more people could have commented on it specifically.”

“We will amend the regulation to take out voluntary advance care planning,” the official said. “This should not affect beneficiaries’ ability to have these voluntary conversations with their doctors.”

The November regulation was issued by Dr. Donald M. Berwick, administrator of the Centers for Medicare and Medicaid Services and a longtime advocate for better end-of-life care. White House officials who work on health care apparently did not focus on the part of the rule that dealt with advance care planning.

The decision to drop the reference to end-of-life care upset some officials at the Department of Health and Human Services, who said the administration ought to promote discussions of such care. Such discussions help ensure that patients get the care they want, the officials said.

During debate on the legislation, Democrats dropped a somewhat similar proposal to encourage end-of-life planning after it touched off a political storm. Republicans said inaccurately that the House version of the bill allowed a government panel to make decisions about end-of-life care for people on Medicare.

Sarah Palin, the 2008 Republican vice-presidential candidate, said in the summer of 2009 that “Obama’s death panel” would decide who was worthy of health care. Representative John A. Boehner of Ohio, the House Republican leader who is to become speaker on Wednesday, said the provision could be a step “down a treacherous path toward government-encouraged euthanasia.”

The health care bill passed by the House in 2009 allowed Medicare to pay doctors for discussions of end-of-life care, including advance directives, in which patients can indicate whether they want to forgo or receive aggressive life-sustaining treatment.

The provision for advance care planning was not included in the final health care overhaul signed into law by President Obama. Health policy experts assumed that the proposal had been set aside — until a similar idea showed up in the final Medicare regulation in November.

Understanding Life Sustaining Measures

You have decided to follow your doctor’s advice and complete an Advance Directive for Health Care thus providing a clear understanding of your wishes as they relate to life sustaining measures. You understand the significance of having an Advance Directive, but as you research the process, you are confronted with a lack of understanding regarding what life sustaining measures encompass.

Life sustaining measures can be defined as, “Any medical treatment in which the primary goal is to prolong life rather than treat the underlying condition.” In such cases an individual’s own body is not capable of sustaining proper functioning on its own without medical intervention. Some examples of life sustaining measures are:

Artificial nutrition and hydration are utilized when an individual is not receiving the nutrients necessary for health and well being. Artificial nutrition (tube feeding) requires a tube be placed into the stomach or the upper intestine. Hydration (fluid replacement) involves tube placement intravenously (IV) via a needle.

Cardiopulmonary resuscitation (CPR) is used when an individual’s heart beat and/or breathing has stopped. CPR includes treatments such as mouth-to-mouth resuscitation, chest compressions, electric shock and/or drugs to restart the heart. CPR can be life saving, however, there is a risk of broken or cracked ribs, punctured lungs and death.

Mechanical ventilation supports a person’s breathing when they can no longer breath on their own. In this situation a machine called a ventilator forces air into the lungs via tubing in the mouth or nose.

Dialysis is the artificial process by which waste products and excess water are removed from the blood. It is used when the kidneys are no longer able to do this adequately.

These examples of life sustaining treatments are just a few of the more common measures taken to continue life when one or more body systems are not working properly. Deciding what, if any, treatments are right for you should depend on several factors:

Does the treatment relieve suffering, restore functioning, or enhance the quality of life? If so, these would be some of the benefits of treatment. Conversely, a treatment may be considered problematic if it is painful, prolongs the dying process or negatively effects the quality of life. Other questions to ask yourself might be: What are my values as they relate to life prolonging measures? Who will carry out my wishes should I become incapacitated? If I start treatment and it does not improve my status will I want to continue that treatment? If so, when? (It should be noted that it is ethically and legally acceptable to discontinue a treatment that is no longer of benefit. It is the disease not the withdrawal of treatment that causes death.)

How you choose to complete your Advance Directive and what measures you choose to take are up to you. Talk to your doctor and don’t be afraid to ask questions if you find the terminology confusing or you simply don’t understand. Ultimately understanding your Advance Directive and the medical terminology associated with it will enable you to communicate your wishes to those providing your health care and increase the likelihood that your wishes will be honored.

Finally, understand that completing an Advance Directive for Health Care is a gift to your loved ones. Instead of guessing about what your wishes might be, they have a clear, written, and legally binding expression of your wishes, enabling them to serve as your advocate.

When Should You Refer to an Elder Law Attorney for Medicaid Planning ?

Elder Law attorneys help older people and their families with all of the legal consequences of aging. These consequences tend to fall into three categories: surrogate decision making for finances and health care; estate planning; and long-term care cost planning. We use powers of attorney for finances and advance directives for health care, wills and trusts, and a variety of strategies to help people get and pay for good care. When an older person lacks the ability to pay for care over their life expectancy using private savings or long-term care insurance, an elder law attorney will advise him or her on qualifying for long-term care assistance through the Medicaid program.

Understanding Life Sustaining Measures

There was an excellent show on NPR's Talk of the Nation on End of Life Decisions and the Health Care Bill on 8-10-09. You can listen to it here: http://www.npr.org/templates/rundowns/rundown.php?prgId=5&prgDate=8-10-2009

You have decided to follow your doctor’s advice and complete an Advance Directive for Health Care thus providing a clear understanding of your wishes as they relate to life sustaining measures. You understand the significance of having an Advance Directive, but as you research the process, you are confronted with a lack of understanding regarding what life sustaining measures encompass.