Former Senator from Tennessee, Fred Thompson, explains the consequences of the language concerning end of life care that is included in the current version of House Bill 3200.
I do read the language as making the counseling mandatory, although not necessarily a demand that doctors (or nurses, if they are the "primary care providers") tell a patient that they must refuse or be willing to withdraw medical intervention at the end of life.
Of course, there's the pesky problem that no one has written the approved counseling language or produced the approved documents, yet. That will be done by "the Secretary," if and when the Bill passes with this provision still in place.
Here's what I think happened: the Committee or staffer who wrote that section thought that offering payment for what was mandated in the "Stimulus bill" earlier this year would be a politically advantageous move.
However, since no one knows what will actually be required by the Secretary of Health and Human Services, and there is no note as to which doctors will be responsible to counsel patients, I forsee a repeat of the confidentiality snafus and stumbling blocks that happened after the "HIPAA" became law. Remember when every single doctor and pharmacy had each patient sign a disclaimer, no one knew who could talk to whom, and a whole lot of money, time and energy was wasted making sure that you knew that the provider knew that the government wanted us to keep your medical information private - at least from everyone except the government agencies who demanded documentation, ICD-9 and CPT codes and qualifiers?
Here's Senator Thompson's essay:
FRED THOMPSON: Phantom pains at The Post
Fred D. Thompson
A Page One article in Saturday's Washington Post blaring the headline "Talk Radio Campaign Frightening Seniors" states, "A campaign on conservative talk radio ... has sparked fear among senior citizens that the health care bill moving through Congress will lead to end-of-life 'rationing' and even 'euthanasia,' " and that the bill has been described as "guiding you in how to die."
The story's continuation inside -- under the headline "Conservatives Have Seniors Fearing 'Euthanasia' as Part of Reform" says that, like arguments about abortion coverage, this has become a distraction to the president's broader health care agenda.
The reader looking for examples of this "talk show" campaign will be disappointed. Not one talk-radio host is quoted, and no specific radio show is mentioned (though The Post does quote an interview done on my radio show, without telling the reader the interview was done on a radio show). However, the article does make use of information supplied by off-the-record "Democratic strategists." One is free to conclude for oneself who has launched a "campaign."
It does seem that the words attributed to unnamed conservative culprits are fairly mild compared to the hysteria coming out of left-wing Web sites and blogs. My favorite is the one found on the Huffington Post, where Republicans are accused of saying that granny would be shot in her wheelchair under a provision in the Obama-Pelosi-Waxman health care bill.
Let's discuss whether these deranged seniors are being misled by people who actually may have read the bill. (Presumably this offense cannot be laid at the feet of their representatives of Congress.) Although I have never said anything like the things attributed to radio talk hosts, the article states that "the attacks on talk radio began when Betsy McCaughey ... told former senator Fred D. Thompson (R-Tenn.) that mandatory counseling sessions with Medicare beneficiaries would 'tell them how to end their life sooner' and would teach the elderly 'how to decline nutrition -- and cut your life short.' "
The basic position of the bill's proponents seems to be that these consultations are totally voluntary, that seniors should have the benefit of such end-of-life consultations and that the consultation provision is nothing more than to get doctors reimbursed when a consultation occurs at the patient's request. The "let's get the doctor paid" rationale was swallowed whole by The Post's writer, Ceci Connolly.
Those concerned by this provision believe it to be mandatory and wonder why the government is involving itself in the doctor-patient relationship and with end-of-life decisions.
Section 1233 of the bill, having to do with Medicare, describes the "advanced care planning consultation" as between the individual (a spouse and next of kin are not mentioned) and a "practitioner," described as a physician, a nurse practitioner or a physician's assistant. (It does not appear that it is a requirement that the physician in question be the patient's physician of record.)
In legislation, an issue as to whether an action is mandatory or not can be resolved quickly by a glance at the statute, which will state that (in this case) the consultation either "shall" be taken or "may" be taken. Remarkably, neither phrase is used in the statute in question.
Rather, the statute just describes what a consultation is and then strictly prescribes in mandatory language what must be included in the consultation as well as what may be included. For example, in Paragraph 4, a consultation "may include the formulation of an order regarding life-sustaining treatment" and may include an order for "the use of artificially administered nutrition and hydration."
The drafters of the provision were either sloppy, befitting a situation in which a complicated, 1,000-plus-page bill, controlling one-sixth of the economy, is rushed through the legislative process. Or it might be that the drafters desired an intentionally vague statute, knowing administration officials would be drafting regulations for the implementation of the bill after it passed.
As it stands, there is more than ample reason to believe the provision was meant to be mandatory with regard to the practitioners. Otherwise, why have the provision in the bill at all? If getting the doctors paid for a voluntary consultation really was the provision's intent, an amendment of two or three lines would have fixed it. As it is, it is two lines in a five-page provision full of specific instructions about what doctors, nurses or doctor's aides must explain to the patients.
Seniors are reminded daily by the media that Medicare is going broke, that the country must cut Medicare costs and that the last days of life are by far the most expensive. Now they are being told by the administration -- one that has been less than transparent on this bill and a host of other issues -- that this bill will cut Medicare costs. They are learning that they are "coincidentally" being asked about end-of-life issues at the government's behest, perhaps by a stranger who is receiving Medicare reimbursement payments. How long do you think it will take a Medicare patient to figure out which decisions will cost the government money and which will save the government money?
This is no reflection on medical professionals. They clearly are being put in a position they neither have asked for nor are completely qualified for. However, I am gratified that a president who can matter-of-factly accuse doctors of routinely removing a child's tonsils solely for financial gain has newfound trust in a doctor's or some hospital employee's ability to consult and even help draw up legal documents regarding end-of-life issues.
If this is all just a misunderstanding about whether this provision is mandatory or not, it can be resolved readily. Let's see if the supporters of the provision are willing to add language to the bill making it clear that there is no requirement that these consultations take place. Better still, they should drop this provision from the bill and let patients discuss these matters with their families, their clergy, lawyers who have expertise in living wills and powers of attorney, or whomever else they desire.
So is this a conspiracy to kill off granny? No. Will seniors be forced to make decisions they don't want to make? No. But will "practitioners" be encouraged to have end-of-life discussions that include when it might be best for patients to allow their life to end earlier than it has to? Of course. And seniors have a right to be satisfied that there is not, at the heart of this process, undo consideration given to cost-cutting.
In the end, it depends on how comfortable one is with having the government in the middle of this process. That is what this discussion is really all about.
Fred D. Thompson, a former Tennessee Republican senator, hosts a nationally syndicated radio show (www.fredthompsonshow.com).
