Did Medicare just restart the ‘death panels’ debates?

Six years after former Alaska Gov. Sarah Palin famously warned Americans about the approach of “death panels” if the Affordable Care Act passed into law, the political firestorm that subsequently flared up and died down may be about to re-ignite.

That’s because Medicare’s proposed revisions to payment policies under its Physician Fee Schedule (MPFS), released July 9, include a provision to pay doctors for what the agency is calling “advance care planning (ACP) services.”

The language spelling out these services doesn’t sound like a call for aloof bureaucrats to decide who is and isn’t fit enough to receive medical treatment. It describes a way of encouraging seniors and other Medicare beneficiaries to pursue, at their own discretion, conversations with their doctors about treatment “both before an illness progresses and during the course of treatment, to decide on the type of care that is right for them,” according to a fact sheet posted by the agency.

The proposal itself (see page 246) gives as a hypothetical a 68-year-old male with heart failure and diabetes seen by his physician for the evaluation and management (E/M) of these conditions as well as his overall health.

“In addition to discussing the patient’s short-term treatment options, the patient expresses interest in discussing long-term treatment options and planning, such as the possibility of a heart transplant if his congestive heart failure worsens and advance care planning, including the patient’s desire for care and treatment if he suffers a health event that adversely affects his decision-making capacity,” the proposal reads. “In this case the physician would report a standard E/M code for the E/M service and one or both of the ACP codes depending upon the duration of the ACP service.”

Open for discussion

The proposal includes a section-specific call for public comment on not only whether physician payment is needed for such conversations but also what type of incentives might be created by the availability of ACP payments.

Medicare is also soliciting input on whether such payments would be appropriate “in other circumstances such as an optional element, at the beneficiary’s discretion,” of yearly checkups—or “annual wellness visits,” in Obamacare lingo.

Early reaction to the proposal from healthcare leaders close to the issue has been mostly enthusiastic.

Andrew Gurman, MD, president-elect of the American Medical Association, long a supporter of ACP and a virtual co-architect of the proposed MPFS revision, took a verbal victory lap. “The proposed Medicare payment rule affirms the need to support conversations between patients and physicians to establish and communicate the patient’s wishes in responding to various medical situations,” he said in a published statement. “This is a patient-centered policy intended to support a careful planning process that is assisted by a physician or other qualified healthcare professional.”

Joe Rotella, MD, chief medical officer of the American Academy of Hospice and Palliative Medicine, cheered the development as a “little miracle” in the wake of the “death panels” hubbub. “It's really about living in the way that means the most to you to the last moments of your life,” he told the Associated Press. “I think society’s going to get over it this time and see the good in it.”

Irreconcilable differences?

Rotella may be overstating the totality of the win for his side. Regardless of the fate of the proposal, the controversy around it is unlikely to evaporate at the level of hearts and minds.

AMA head Gurman felt the need to pre-empt objections, stating that the issue “has been mischaracterized in the past and it is time to facilitate patient choices about advance care planning decisions.”

Burke Balch, director of the National Right to Life Committee’s Powell Center for Medical Ethics, anticipated the sentiment and responded, albeit indirectly.

“We feel there is pervasive bias against treatment that is occurring in advance care planning that involves nudging individuals to reject lifesaving medical treatment,” Balch told the New York Times.

Balch added that he believes the move will put pressure on patients and was “motivated in large part by a desire to cut health care costs.” He also told the Times that his organization is seeking a congressional sponsor for a bill that would, instead, “direct Medicare to produce materials about end-of-life decisions that reflect a range of views, including those ‘concerned with protecting people’s right to treatment.’”

Is the firestorm back on yet?