The Return of Death Panels? Government-Funded End-of-Life Planning is Morally Questionable

Commentary by John R. Graham

Source: Forbes

Are death panels on the rebound? Obamacare envisioned Medicare paying physicians to discuss end-of-live-care with their patients. When this sparked fierce blowback from citizens who feared that “death panels” would ration care to elderly patients, the Administration backed off.

However, the American Medical Association (AMA) has been lobbying for the execution (pun intended) of this provision. The AMA is a business which profits from its monopoly over the billing codes that physicians use when they submit claims to Medicare. The more billing codes there are, the better it is for the AMA.

For patients, however, it is risky to allow the government to pay physicians to counsel us on end-of-life issues. There is another approach, but it is so emotionally challenging that it may be impossible to implement.

End-of-life planning is back on the radar screen because of a very thorough report just released by the Institute of Medicine (IoM). It comprises a wealth of information on the state of end-of-life planning in America today. Unfortunately, it contains a dangerous recommendation: Government-funded counselling.

At its best, end-of-life counselling would ensure that patients are well informed about the costs and benefits of intense medical intervention at the end of life. Although dissatisfied with where we stand today, the report notes progress: In the last two decades, palliative and hospice care has grown tremendously. By 2011, a majority of hospitals had palliative-care programs. Almost half of adults over 40 have an advanced-planning directive and have discussed care preferences with a loved one.

It would be great if that figure moved up towards 100 percent. Some private insurers have begun covering end-of-life counselling that leads to signing advanced-planning directives, paying between $50 and $350 to doctors for providing these services. The IoM report cites Aetna AET -0.04%’s “concurrent care model”, used commercially and in Medicare Advantage, which assigns nursing-care managers with palliative expertise to patients with a prognosis of about twelve months. This led to more than doubling the use of palliative care (from 30 percent of cases to 70 percent) and significantly reduces costs.

Despite such effective examples, there is strong general evidence that dying patients’ wishes are not fulfilled by their physicians. Most physicians state that they would conform to an advanced-planning directive, even if a patient’s relative requested different care. However, physicians’ behavior does not correspond to their statements. The report concludes that “the default is to treat.”

There is no clear-cut reason why. Physicians sometimes state that they do not trust advanced-planning directives, especially if they are a few years old. A relative may state that the directive is out of date, and might seek to override it, introducing legal risks for the physician. However, there are virtually no cases of families suing physicians who honor a patient’s preference for less aggressive care.

There are other problems, too. Prognosis is often difficult for some conditions. Most expensive care is delivered within six months of death. That is easy to state after death, but who knows when the 6-month clock starts ticking? Further, it is not always clear what the advanced-planning directive is directing: “The usefulness of simple checkbox-style documents has come into question,” as the IoM report gently puts it. These problems might explain why evidence that such planning reduces end-of-life costs is limited and weak.

Current government spending on end-of-life care is already showing cracks, demanding more regulation as providers learn how to game the system. Hospice care is becoming problematic for Medicare: New legislation will require hospices to be inspected every three years (instead of every eight). One of the problems leading to increased oversight is that some hospice patients are surviving longer than 180 days, leading to suspicion that these patients are not at the end-of-life, but being hotelled at taxpayers’ expense.

Government payment for counselling would lead to even more regulation and oversight of all facets of these very personal decisions. It would also be morally questionable: The conflict of interest between the government’s fiscal needs and patients’ medical needs would likely reduce trust among the patients who need these services the most. The battle cry of “death panels” anticipates such a loss of trust.

There is a way to make a (close to) perfect contract for Medicare patients. However, it is so emotionally charged that I doubt it would ever be taken up. Oh well, here goes: We could take Dr. Ezekiel Emanuel seriously.

Dr. Emanuel wants to die at 75, 18 years from now. What concerns him is a long age characterized by feebleness. Dr. Emanuel insists that he will be very discriminating about which treatments he will accept. His goal is to turn around the default: Instead of defaulting to treatment, the default will be palliative care.

Let’s take Dr. Emanuel at his word. He could commit to dropping Medicare on his 75th birthday, and the government could cut his payroll taxes proportionally. (As he is already 57, he might be due a refund). The same offer would go out to every American. Those who choose an end-of-Medicare date would get a tax cut, which they could use to finance private insurance that covers only palliative and hospice care (deferred until the age they drop Medicare), or save to pay for such care directly.

Doable? Not likely. Nevertheless, it would be a better solution than allowing Uncle Sam to take control of our end-of-life planning.