Return of the 'death panels'

Even in a health care bill that was unpopular, the panels that would make end-of-life recommendations in order to save the government on health care costs (said recommendations being passed on by paying doctors to share them with patients) were even more unpopular. Some people call these panels that make end-of-life recommendations "death panels." Others, thought the term inaccurate and prefer terms like "end-of-life planning" and "consultation" and "directives." These end-of-life panels in Section 1233 of the health care legislation were so unpopular, in fact, that they were removed from the bill after outcry from folks on the left and right.

But whatever you call these panels that make end-of-life cost-cutting recommendations that doctors are paid to pass on to patients -- the New York Times just broke a huge story: they're ba-a-ck. And somehow they're even more intense. Whereas the House had passed a version of the bill that would arrange for consults once every five years, now target populations will have these chats with incentivized doctors every year.

How? Behold the mighty, mighty power of regulation:

When a proposal to encourage end-of-life planning touched off a political storm over "death panels," Democrats dropped it from legislation to overhaul the health care system. But the Obama administration will achieve the same goal by regulation, starting Jan. 1.

Under the new policy, outlined in a Medicare regulation, the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment.

Congressional supporters of the new policy, though pleased, have kept quiet. They fear provoking another furor like the one in 2009 when Republicans seized on the idea of end-of-life counseling to argue that the Democrats' bill would allow the government to cut off care for the critically ill.

WHOA. The story is somewhat sympathetic, as you might expect, to this rule by regulatory fiat. Still, it's the kind of article that leaves the reader speechless. Among many fascinating details, the reporter got a hold of some emails from members of Congress basically pleading with others to keep hush hush about what had happened. Representative Earl Blumenauer of Oregon found out in November that the Obama administration planned to institute this rule but purposely kept the news hidden. I assume this must have been in the Federal Register at some point, but all the reporters missed this huge news. It does make you wonder what other news we miss, doesn't it.

Anyway, like I said, the article is rather typically sympathetic to the panels, directives, consults, what have you. And that weakness manifests itself by generally failing to get much feedback from those Americans who are less-than-elated about having the government pay doctors to do these health care cost-cutting consults. Instead the article goes out of its way to mention any interested parties that support such end-of-life consults (without noting what their financial interests might be, I might add).

Just to give you an idea of the types of objections that are out there, here's what the health care bill-supporting liberal Charles Lane of the Washington Post wrote about the panels over a year ago:

Though not mandatory, as some on the right have claimed, the consultations envisioned in Section 1233 aren't quite "purely voluntary," as Rep. Sander M. Levin (D-Mich.) asserts. To me, "purely voluntary" means "not unless the patient requests one." Section 1233, however, 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. So when Rep. Earl Blumenauer (D-Ore.) denies that Section 1233 would "place senior citizens in situations where they feel pressured to sign end-of-life directives that they would not otherwise sign," I don't think he's being realistic.

What's more, Section 1233 dictates, at some length, the content of the consultation. The doctor "shall" discuss "advanced care planning, including key questions and considerations, important steps, and suggested people to talk to"; "an explanation of . . . living wills and durable powers of attorney, and their uses" (even though these are legal, not medical, instruments); and "a list of national and State-specific resources to assist consumers and their families." The doctor "shall" explain that Medicare pays for hospice care (hint, hint).

Admittedly, this script is vague and possibly unenforceable. What are "key questions"? Who belongs on "a list" of helpful "resources"? The Roman Catholic Church? Jack Kevorkian?

Ideally, the delicate decisions about how to manage life's end would be made in a setting that is neutral in both appearance and fact. Yes, it's good to have a doctor's perspective. But Section 1233 goes beyond facilitating doctor input to preferring it. Indeed, the measure would have an interested party -- the government -- recruit doctors to sell the elderly on living wills, hospice care and their associated providers, professions and organizations. You don't have to be a right-wing wacko to question that approach.

These types of concerns -- shared by liberals like Lane as well as conservatives and moderates -- aren't prevalent in the article. But among religious conservatives, there's also not enough accurate discussion of their concerns about having a financially interested party encouraging particular end-of-life decisions for individual patients. Note the way the lone religious opponent is quoted:

Elizabeth D. Wickham, executive director of LifeTree, which describes itself as "a pro-life Christian educational ministry," said she was concerned that end-of-life counseling would encourage patients to forgo or curtail care, thus hastening death.

"The infamous Section 1233 is still alive and kicking," Ms. Wickham said. "Patients will lose the ability to control treatments at the end of life."

I assume the clunkiness in the description of LifeTree is about realization that the standard rewriting of "pro-life" as "anti-abortion" doesn't work even remotely well in this case (something about which should give the copy editors general pause about the term "anti-abortion."). But the set up of the quote also reads like the reporter didn't exactly have a command of what Wickham and other pro-lifers' objections are to such government-controlled counseling.

Of all the decisions we make that are haunted by religion, how we approach death has to be one of the biggest and most important. It's almost impossible to talk about life-and-death decisions, such as end-of-life directives and hospice care, without discussing religious doctrines. I have to think that most Americans would like to make these decisions in consult with their rabbi, imam, pastor and priest at least as much as with their government-funded doctor working off a cost-saving script.

And we haven't even gotten into other issues, such as how doctors' religious views affect their end-of-life advice and care. What role will religion play in the advice put forth by government accounting panels? What role will religion not play?

Death and dying are intricately tied to the subjects of God, religion and faith. Stories about paying doctors to communicate the "guidance" from "end-of-life" advisory panels whose aim is to "cut costs" are haunted. As this story progresses, I hope we see stories that engage these religious ghosts. The fact is that there is a wealth of theology surrounding death and dying. How to die a good death has been a topic that theologians have given more thought to than Health and Human Services bureaucrats have. Let's hope the New York Times and other outlets remember that in their coverage in days to come.

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