Medicare Supports Informed Patient Choice at the End of Life

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August 18, 2015; NPR, “Shots”

In August of 2009, former governor Sarah Palin posted a message on Facebook in opposition to the inclusion of an Affordable Care Act provision for Medicare to pay physicians to have end-of-life conversations with their sick and elderly patients. Coining the phrase “death panels,” Palin contended that such a move would be tantamount to incentivizing physicians to exert undue influence in discussion of options and would leave those patients without access to lifesaving treatment and die avoidably. The hyperbole worked in rallying reform opponents. Subsequently, Democrats removed the provision from the bill. Still, the debate continued, and now Medicare is proposing to reimburse physicians for talking with their patients about their treatment options and end-of-life wishes.

A Stanford University study has found that 90 percent of physicians would forego extraordinary methods to save a life. Dr. Kendra Fleagle Gorlitsky, who now teaches medicine at the University of Southern California, recalls the anguish she felt as a young doctor performing CPR on elderly, terminally ill patients. “I felt like I was beating up people at the end of their life,” she says. “I would be doing the CPR with tears coming down sometimes, and saying, ‘I’m sorry, I’m sorry, goodbye.’ Because I knew that it very likely not going to be successful. It just seemed a terrible way to end someone’s life.”

Dr. Pamelyn Close, a palliative care specialist in Los Angeles, is a spokesperson supporting physician non-directive counseling. “We just are not having these conversations often enough and soon enough,” Close says. “Loved ones who are trying to always do the right thing end up being weighed with tremendous guilt and tremendous uncertainty without having had that conversation.” End-of-life treatment options and legal documents, such as advance directives and living wills, are complex and typically require a series of discussions.

NPQ has been covering the evolution of the discussion and reporting on states, like Wisconsin, which have instituted successful programs to equip physicians to discuss their patients’ options for their end-of-life care. Oregon doctors have, for decades, been trying to fit end-of-life discussions into regular medical appointments. Over the past five years, a quarter of a million Oregonians registered their wishes with a state registry. They use what’s known as a POLST form, which stands for Physician Orders for Life Sustaining Treatment. (A version of the POLST has been adopted by some other states, including New York and West Virginia.) The POLST order is signed by a physician, nurse practitioner, or physician assistant after a discussion with a patient and/or with a Health Care Representative. Since it is a medical order that will be followed in an emergency, it is important that it reflect her wishes now, in her current state of health.

Today, healthcare reformers supporting a change at the federal level have gained traction. In fact, the government is proposing that physicians be reimbursed for talking with their patients about living wills and advance directives at any time during their care instead of once during their initial visit. Congressman Earl Blumenauer, a Democrat from Portland, has introduced the Medicare reimbursement legislation every session since 2009. Until now, he says, the federal government hasn’t placed any value on helping people prepare for death and that it seems counterintuitive: “The Medicare program will pay for literally thousands of medical procedures, many of them very expensive and complex, even if the person is at the latest stage of life and it may not do any good.” However, he goes on to say that the financial considerations are secondary in his argument.

Opponents of the proposal, like the conservative Christian group Alliance for Freedom, are skeptical. “By paying doctors for these conversations, what we’re doing is opening the door to directive counseling and coercion,” says Catherine Glenn Foster, an attorney with the group. Foster says her organization supports end-of-life counseling and planning, but is not in favor of the discussions happening in a physician’s office.

The debate may come up again in the 2016 election. In April, Brian Beutler of the New Republic reported that Jeb Bush has proposed that an advance directive be a legally binding document that establishes a patient’s treatment preferences before injury or deteriorating health that makes it impossible for him to make acute decisions. Beutler sees this as an aggressive stance. He writes that by institutionalizing end-of-life counseling, “It would make grappling with your end-of-life treatment preferences and thus your death—an obligatory condition of Medicare’s social contract.” Has the former Florida governor and Republican presidential candidate inadvertently made himself a lightning rod for his opponents in this issue as the campaign unfolds?

As Sarah Palin’s “death panels” remarks show, and current political candidates prove, hyperbole can be a powerful tool in influencing the public. Hopefully this time when it comes to the end-of-life debate, reason will prevail. The federal government is now accepting public comment on the Medicare reimbursement proposal. A decision is expected in November.—G. Meredith Betz