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Obamacare’ raises problems

Charles Rice | Monday, September 7, 2009

The main health care bill, H.R. 3200, “America’s Affordable Health Care Act of 2009,” has 1,017 pages. I read it, which gave me some, but not much, sympathy for House members who admit that they voted for it in committee, or endorsed it, without reading it.

Section 1233 (pages 424-34), on “advanced care planning consultation,” expands the physician services that Medicare will reimburse, to include consultations regarding end-of-life decision-making. Senator Chuck Grassley (R-IA) says the Senate Finance Committee has removed “the end-of-life provisions” from its bill because they would pay physicians to “advise patients about end-of-life care and rate physician quality of care based on the creation of and adherence to orders for end-of-life care.” But that bill is only one of several on the subject. It is too early to count the end-of-life consultations out. As Health and Human Services Secretary Kathleen Sebelius said on August 16, “I’m hoping that at the end of the day” the consultation provisions “will be part of the overall package.”

Let’s look at what Section 1233 says and, more important, what it does not say and thus leaves to bureaucratic, implementing regulations which could make the 1,017 pages of the bill look like a telegram. An “advance care planning consultation” is between “the individual and a practitioner” who does not have to be the individual’s own physician. A “practitioner” can be a physician or a “nurse practitioner or physician’s assistant who has the authority under State law to sign orders for life sustaining treatments.” The bill does not state whether the consultation will be initiated by the practitioner or by the individual. Nor does it state that the individual is compelled to have a consultation. “Though not mandatory,” wrote Charles Lane of the Washington Post editorial board, “the consultations…aren’t quite ‘purely voluntary.’ To me,” he said, “‘purely voluntary,’ means ‘not unless the patient requests one.’ Section 1233 … lets doctors initiate the chat and gives them an incentive – money – to do so. Indeed, that’s an incentive to insist. Patients may refuse without penalty, but many will bow to white-coated authority. Once they’re in the meeting, the bill does permit ‘formulation’ of a plug-pulling order right then and there.” Regulations could, in effect, make the consultations mandatory, to be initiated by the individual or the practitioner with penalties on the individual who fails to initiate it.

A consultation shall include: “An explanation by the practitioner of advance care planning … and … advance directives, including living wills and durable powers of attorney … the role … of a health care proxy … [t]he provision by the practitioner of a list of … resources to assist … with advanced care planning … [a]n explanation … of … end-of-life services … available, including patient care and hospice … an explanation of orders regarding life sustaining treatment … which shall include … the reasons why … such an order is beneficial to the individual and the individual’s family and the reasons why such an order should be updated periodically as the health of the individual changes.” Note that the consultation “shall include” an explanation of only one side of the question of whether such an order would be beneficial.

“A consultation … may include the formulation of an order regarding life sustaining treatment … [which is] an actionable … order relating to the treatment of that individual that (i) is signed and dated by a physician … or another health care professional (as specified by the Secretary) … in a form that permits it to stay with the individual and be followed by health care professionals … across the continuum of care; (ii) … communicates the individual’s preferences regarding life sustaining treatment, including an indication of the treatment and care desired by the individual; (iii) is … standardized within a given locality … (as identified by the Secretary); and (iv) may incorporate any advance directive … if executed by the individual.”

“The level of treatment indicated” by the order “may range from … full treatment to an indication to limit some or all or specified interventions. Such … levels of treatment may include indications respecting, among other items – (i) the intensity of medical intervention if the patient is pulse-less, apneic, or has serious cardiac or pulmonary problems; (ii) the individual’s desire regarding transfer to a hospital or remaining at the current care setting; (iii) the use of antibiotics; and (iv) the use of artificially administered nutrition and hydration.”

This “actionable” order becomes part of the individual’s permanent record, available to the government and health care professionals who are required to follow it. Opponents of end-of-life consultations were derided by President Obama and the media for raising the prospect of “death panels.” But note that the order does not have to be signed by the practitioner who conducts the consultation. Regulations, consistent with Section 1233, could provide that the order would be signed by a “health care professional” other than that practitioner who formulated it. There is no mandate that the professional who signs the order ever saw the individual involved. Could the signer be a member of a panel reviewing such orders without ever seeing the patient? Apparently so.

The order “communicates the individual’s preferences … including … the treatment … desired by the individual.” But it does not specify that the order must comply with those preferences. If the individual had executed an advance directive, the order “may incorporate” it but does not have to include it or even refer to it.

Section 1233 does not state whether the individual’s personal physician, lawyer or family members may be present at the “advance care planning consultation.” Nor does it specify that the order will be subject to judicial review.

An “advance care planning consultation” may be held “if the individual … has not had such a consultation within the last 5 years.” A consultation “may be conducted more frequently … if there is a significant change in the health condition of the individual, including diagnosis of a chronic, progressive, life-limiting disease, a life-threatening or terminal diagnosis or life-threatening injury, or upon admission to a skilled nursing facility, a long-term care facility … or a hospice program.” The bill imposes no limit on the number or frequency of such consultations, raising the prospect of repeated pressuring of patients to forego treatment.

“Obamacare” seeks to increase those who are covered and to reduce costs. The only way to achieve both objectives is to ration the health care provided to the elderly and disabled. Half of a person’s medical expenses generally occur in the last six months of life. The rationing, at first, will be technically voluntary. Grandma will be told that she is not eligible for that hip replacement. She will be given the option of taking pain pills. But she will be encouraged to relieve the burden on her family through legal means of achieving “death with dignity.” Section 1233 is evil in its effect and potential.

Professor Emeritus Rice is on the Law School faculty. He may be reached at rice.1@nd.edu or 633-4415.

The views expressed in this column are those of the author and not necessarily those of The Observer.