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Reason Foundation

A Physician's Take on the "Death Panel" Revelation

The truth about end-of-life counseling

Jeffrey A. Singer
January 5, 2011

Over the Christmas holiday weekend, The New York Times revealed that the Obama administration's Medicare regulators have enacted new regulatory guidelines, in complete defiance of Congress, that will result in health care providers receiving payment to give annual “end-of-life counseling” to their patients.

As a physician, I can tell you that we doctors do routinely have end-of-life discussions with our patients. This is a necessary part of our job. But we do it when it is appropriate and indicated by the clinical situation. And we have never expected payment for this. It is part and parcel of the practice of medicine.

Medicare, however, will now incentivize health care providers to have this discussion annually, as part of an annual physical exam. Providers will get paid extra if they have this conversation. But consider the implications: When discussing such matters with an otherwise healthy and possibly youngish senior, the “directives” that health care providers will elicit may be significantly different from what they would have been if the patient was actually confronting a life and death situation. One's directives are often quite different when talking about a theoretical future versus a real situation occurring in the present. After all, the future might offer technological advances that are not available at the time of the theoretical discussion, thus making a patient reach a very different decision when that future reality arrives.

Furthermore, as typical of all Medicare regulations, there are certain requirements that must be fulfilled in terms of both the discussion and the patient directives in order for the end-of-life counseling to qualify for physician payment. And therein lies the rub. The whole idea is to get younger, healthier Medicare patients to give advanced directives that will be used at a later time to deny them care. Remember that ObamaCare cuts Medicare by $500 billion—and that doesn't even take into account the coming demographic cataclysm that awaits the program when the baby-boomers become Medicare beneficiaries.

That's why the new policy has been dubbed a "death panel" by its opponents. One can easily see the ulterior motive behind the decision to incentivize health care providers to have annual, Medicare-designed end-of-life discussions with their patients. It’s to allow for denial of care at a time when Medicare money is scarce.

Indeed, this is precisely why Congress removed the end-of-life counseling provision from the final health care bill. When the public learned of this provision, there was an outcry against it.

But now the executive branch has circumvented Congress, ignoring both the legislative text and the intent of the legislature, by enacting the very provision that Congress decided to remove. And it has done so using the regulation-writing process.

This last point should disturb anyone concerned about the integrity of our democratic republic, regardless of where one stands on the matter of health care reform or end-of-life discussions. The executive branch is enacting by regulatory fiat what the legislative branch explicitly opted not to enact. This can only lead to the tyranny of an unelected bureaucracy.

Dr. Jeffrey A. Singer is a general surgeon in private practice in the metro-Phoenix area since 1981, and is Treasurer of the U.S. Health Freedom Coalition. This column first appeared at Reason.com.

Editor’s Note: In an unexpected reversal, the Obama administration has announced that it will not implement the end-of-life planning regulations discussed in this article.



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