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“No Longer Any Political Margin To Be Gained”: Why Republicans Won’t Object To The Return Of ‘Death Panels’

There was a lot about the period leading up to the passage of the Affordable Care Act that was ridiculous and maddening, but perhaps no episode was worse than the controversy over “death panels.” Here you had a small provision of the bill that doctors, patient advocates, and health care experts all agreed would lead to better care, not to mention cost savings. Then Republicans concocted a lie about it, spread that lie as far as they could, and finally saw the provision removed from the final legislation.

Well, now Medicare is finally doing what that provision of the ACA would have done.

Under a newly proposed rule, it will reimburse doctors for the time they spend with patients planning how they want to be cared for near the end of their lives. And just you watch: this provision that Republicans said six years ago was so horrifying? They’re not even going to bother opposing it anymore, now that doing so serves no political purpose. It’s barely going to be a controversy at all.

That’s not what everyone else seems to be predicting. All over the web there are articles about this issue, many illustrated with photos of Sarah Palin, predicting that this is going to blow up into another angry debate. But I say it won’t. Here’s why: Republicans’ opposition to end-of-life counseling was always utterly cynical, a performance enacted for no purpose other than undermining the legislation. At this point, with the law implemented long ago and the major legal challenges over, there’s no longer any political margin to be gained in shaking their fists at patients and doctors talking about the options for end-of-life care.

Let’s review a little history. This whole thing got started when conservative activist Betsy McCaughey appeared on the radio in 2009, when versions of the legislation were working their way through Congress, and said this about the one in the House:

“And one of the most shocking things I found in this bill, and there were many, is on Page 425, where the Congress would make it mandatory — absolutely require — that every five years, people in Medicare have a required counseling session that will tell them how to end their life sooner, how to decline nutrition, how to decline being hydrated, how to go in to hospice care. And by the way, the bill expressly says that if you get sick somewhere in that five-year period — if you get a cancer diagnosis, for example — you have to go through that session again.”

To paraphrase what Mary McCarthy said about Lillian Hellman, every word of that statement is a lie, including “and” and “the.” The actual provision stated that if a patient wanted to have a consultation about their options, including how to create an advanced directive that would lay out what sorts of treatment they wanted and didn’t want if they got to a point where they couldn’t communicate it themselves, Medicare would pay the doctor for the time counseling the patient. Nothing was mandatory, nothing would require doctors to “tell them how to end their life sooner,” and nothing required anyone to have the session again. It was all lies.

But that didn’t prevent the claim from taking off like a rocket. Sarah Palin floated the “death panel” talking point. Chuck Grassley told a crowd back home, “We should not have a government program that determines if you’re going to pull the plug on grandma.” Although media outlets tried to explain that the allegation was false, millions of people believed it anyway. Chastened Democrats removed the provision from the bill.

So now that Medicare is finally moving ahead with this provision, are Republicans really going to fight it? No, they won’t. I’ve been looking around for condemnations from conservative media outlets or prominent Republican politicians, and so far I’ve come up empty. There was one small item on the National Review’s blog, with no substantive objection, just a little harumphing about bureaucracy. No outraged statements from Mitch McConnell and John Boehner, no thunderous denunciations from the presidential candidates, nothing.

Maybe they just haven’t gotten around to it yet, and the indignation is on its way. But I wouldn’t bet on it. In this somewhat cooler environment, it isn’t going to be easy for them to argue that patients shouldn’t sit down with their doctors and plan for their future care. And with congressional Republicans all but giving up on repealing the ACA, this isn’t a battle that offers much to be gained.

So five years after the ACA was passed, doctors will know that they can get paid for this absolutely vital service, explaining the options to their patients and making sure that when the time comes, those patients’ wishes are honored. The people like McCaughey, Palin, and Grassley who back then lied to the country in order to score a few points against Barack Obama ought to hang their heads in shame. But at least it’s finally happening. Better late than never.


By: Paul Waldman, Senior Writer, The American Prospect; The Plum Line Blog, The Washington Post, July 9, 2015

July 10, 2015 Posted by | Affordable Care Act, Death Panels, Medicare | , , , , , , | 3 Comments

“Are ‘Death Panels’ Coming To Scott Walker’s Wisconsin?”: A Scheme To Make Middle-Class Workers Pay Even More For Health Care

Scott Walker could be on the verge of giving Infowars some great conspiracy theory fodder. A move by Wisconsin’s Group Insurance Board to substantially increase how much state employees pay for their health insurance is drawing unqualified and sharp opposition from labor leaders but could once have drawn criticism from Sarah Palin, as well. That’s because the proposal includes “consultations about end-of-life care, which some called ‘death panels,’” as the Wisconsin State Journal put it.

Death panels?! In the great Badger State? Putting Badger Staters to death? How could this be? One may have asked, as some on the right did during the debate over the Affordable Care Act. But here we are, with the Wisconsin state government overseeing what’s set to be the controversy-free implementation of new policies designed to save the state money through its employees’ end-of-life decisions.

Quick background: The Wisconsin state government is having some tough fiscal times, and Walker’s budget proposal suggested substantial cuts in a number of areas, including to the University of Wisconsin system and to K-12 education. The governor’s budget proposal also called for savings of $81 million on the state employees’ group health insurance program. (Remember that in 2011 the governor oversaw the passage of Act 10, which virtually ended collective bargaining for most of the state’s public sector unions.) But the budget wasn’t too specific about how to save that $81 million. Instead, Walker’s proposal directed the state’s Group Insurance Board to work with Atlanta-based Segal Consulting to figure it out.

The most buzzed-about change, the Wisconsin State Journal reported, will require public sector employees to pay twice as much out of pocket for their health care than they do now. These changes are projected to save the state $85 million over the next two years (Wisconsin passes budgets biennially), and most of the savings “will come from increasing out-of-pocket limits and introducing deductibles for the vast majority of state workers who don’t have them,” according to the paper. Individual employees will have new $250 deductibles, and family deductibles will be $500.

The Group Insurance Board voted for the changes on May 19, and unless the legislature’s Joint Finance Committee moves to require legislative approval for the changes, they will go into effect Jan. 1, 2016, according to Mark Lamkins, communications director for the state’s Department of Employee Trust Funds. The board that approved the changes has 11 members, some of whom are Walker appointees. The majority of the Walker appointees on the board voted in favor.

And the change has labor leaders irate.

“What the group insurance board did today is unconscionable,” said Wisconsin AFSCME executive Marty Beil, according to THOnline. “I’d also call it evil that they’re treating state employees at that level. It’s incredible.”

But Walker’s critics on the left aren’t just going after him for increasing public sector employees’ expenditures for their health care. They’ve also targeted him for a tiny provision the board approved that seeks to save a bit of money through end-of-life care. The memo laying out the cost-cutting health-care proposal doesn’t detail how these changes would work, and the State Journal reported that “[e]nd-of-life care consultations, also called advanced care planning or palliative care, would save $292,500.” That’s hardly a hefty sum. Lamkins said the changes would involve “keeping people out of institutions near the end of life, giving them more opportunities to manage their care-treatment plan.”

He added that the change is designed “to ensure that members facing serious illness and survival of less than six months are informed of care options and are able to make treatment decisions based on their individual values and goals of care.”

Reached for comment, Laurel Patrick, a spokeswoman for the governor, pointed out that the phrase “death panels” is nowhere to be found in any of the health care change proposals. But that hasn’t defused liberal ire about the panel’s move.

That’s because Walker has been one of the most outspoken conservative opponents of the Affordable Care Act.

“When Sarah Palin was trying to derail Obamacare over ‘death panels,’ Scott Walker didn’t say a word defending the need for people to have end-of-life counseling and instead on his first day as governor wasted taxpayer dollars suing the federal government over Obamacare,” said Scot Ross, executive director of One Wisconsin Now. “But wrapped in a scheme that would make cash-strapped middle-class workers in Wisconsin pay even more for health care, Team Walker quietly slides this into the mix. The inclusion of the palliative counseling is critical, but Scott Walker would have saved families a lot of grief if he would have stood up to the Tea Party in 2010 instead of this backdoor deal now.”

Robert Kraig, executive director of Citizen Action of Wisconsin, voiced support for Walker’s so-called death panels but said he was frustrated the governor didn’t do more to defend the Affordable Care Act.

“The right, using Sarah Palin, shamelessly tried to call simple voluntary end-of-life consultation a ‘death panel’ early in the debate over Obamacare,” he said. “There’s obviously a great irony that the Walker administration would now come forward with an end-of-life consultation provision. I still have to say that it’s good policy, most likely, it’s just incredible hypocrisy for them to come out with that after Walker has been one of the most disingenuous critics of the ACA.”

It’s doubtful, of course, that any of this will be a problem for Walker’s 2016 ambitions. Nobody ever did poorly with Iowa Republican caucus-goers because critics on the left were too noisy. But the debate highlights one of the tricky aspects of running for president as a governor: that the tiniest provisions in uncontroversial policies can easily become flashpoints for controversy.


By: Betsy Woodruff, The Daily Beast, May 21, 2015

May 22, 2015 Posted by | Death Panels, Public Employees, Scott Walker | , , , , , , | 1 Comment

‘Death Panels’ and Maxwell’s Silver Hammer: End-of-Life Planning Scare Resurfaces

Hammer or death mallet? You be the judge...

A hammer is supposed to be used to pound nails. But as the Beatles pointed out more than 40 years ago, it can also be used as a murder weapon. Nobody, however, is calling for a ban on hammers or calling them “death mallets.”

Maybe that’s why the resurrection of the “death panel” canard, as applied to end-of-life planning, seems so unnecessary. Here’s how the New York Times started its story a few days ago:

“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.”

The only opponent quoted in the story was this:

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.”

Which, with all due respect, was no more accurate a summary of “Section 1233” or the new regulation than “death mallets” would be to describe hammers.

Don’t believe me? Section 1233 was contained in one early draft of the health care reform bill. Here’s the text of that version of the bill (search for “advance care planning consultation”). It would have allowed Medicare to pay for one such consultation every five years, if the patient wanted it.

Such consultation was to include: an explanation of advance care planning, advance directives, health care proxy, list of resources for further information, explanation of palliative and hospice care, explanation of the advantages of an up-to-date advance treatment order. It would have required training for health care providers (you’d be shocked at what some doctors don’t know about this stuff). And would have required standardization of information and forms used.

It also listed some of the conditions that could be included in a directive. And said that Medicare would pay for more frequent consultations if there were a significant change in condition.

Overly detailed and controlling? Maybe so. Death panels? Not hardly. Limit a patient’s ability to control treatments at the end of life? Not in any clause or sub-clause I can find.

Jump to the new regulation. (It’s in here.) The relevant passage is a lot shorter than the killed section of reform legislation. It adds “voluntary advance planning upon agreement with the individual” to the items that Medicare will pay for during an annual physical. Here’s the whole thing:

“Voluntary advance care planning” means, for purposes of this section, verbal or written information regarding the following areas: (1) An individual’s ability to prepare an advance directive in the case where an injury or illness causes the individual to be unable to make health care decisions. (2) Whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive.”

That’s it. No panels, death or knotty pine. Just a conversation with your doctor if you want it. No loss of patient control unless the patient is in a condition where conscious control is impossible — in which case the whole point of the planning is to ensure that the patient’s wishes be followed.

Since the New York Times figures Wickham has enough clout to stand in for all opponents, I tried to contact her. No joy. I checked her organization’s website for more insight into her objections. I found that LifeTree is not a generically Christian group, but one that has Catholic roots, starting with the blessing of the bishop of Raleigh, N.C.

So I shifted my search to the National Catholic Bioethics Center, figuring I’d find a reasoned critique that would likely be in accord with the beliefs of LifeTree. I found Marie T. Hilliard, the center’s director of bioethics and public policy. She was more than willing to engage me in civil discussion.

The Catholic Church is in favor of end-of-life planning, she said.

“The issue is not whether a discussion by a health care practitioner with a patient on end-of-life care issues is a good. It is a good,” she said. “And encouraging providers to have truly informing discussions on this issue also is a good.”

So what’s Hilliard’s beef with the regulation? She fears the way that written “orders for life-sustaining treatment” (called “POLST” or “MOLST”) could be abused. A form signed today might not include the actual situation that pops up years down the road.

In other words, a patient could complete a POLST/MOLST form indicating the patient did not want life sustaining treatment, which could be an antibiotic or a blood transfusion or proportionately beneficial assisted nutrition and hydration, before any of the facts that would be appropriate to such decision-making were in play.

The new regulation actually addresses at least one of her concerns in that it makes the consultation available annually, rather than using the bill’s five-year rule. And a standardized form can certainly include the vast majority of situations a patient is likely to encounter. The version prepared by the Rabbinical Council of America, for instance, covers persistent vegetative state, coma, lesser brain injuries along with a terminal illness, and brain injury without a terminal illness along with 31 possible procedures.

But there are conditions and procedures the form does not address. Would a longer form, with more choices, make the possibility of error less likely? Or would a form that’s much longer make it less likely that someone would be willing to fill it out at all?

Hilliard also raises a “slippery slope” argument, suggesting that widespread use of such forms would be employed to put pressure “on persons with disabilities and their families to forgo life sustaining health care treatments.”

To which argument I have consistently replied that if you have a doctor who wants you or your loved one dead, your problem is bigger than a signed form.

Hilliard recommends the use of “health care agents,” a sort of human advance directive. This could be a family member or some other designated person who has the authority to speak for the patient.

The concept was actually included in the killed portion of the health care reform bill, referred to as a “health care proxy.” Perhaps it should have been included in the new regulation.

I think Hilliard and I both agree that the biggest problem with end-of-life planning is that far too often it’s done poorly.

We have a 24/7 consultation line on medical ethics; (1,400 calls per year) and the most frequent call we receive is on end-of-life care, NOT because there is not an advanced directive, often because there is and it does not address the situation at hand, and no helpful discussion had been held with the health care agent. Then there is the question of whether or not the health care agent is locked in by the letter of the law, knowing that the spirit of the will of the patient may be violated.

And that’s for people who have directives or health care agents. Imagine the situation for the far greater number of people who never address these issues until there’s a crisis.

I have some personal experience in this matter. My dad died earlier this year. He was 92. Several years before, my wife had prodded him (and the rest of us) to fill out advance-care directives. Her career has been in long-term health care and she’d seen too many families torn apart by being forced to consider these decisions only under the most terrible stress.

Because we’d talked about the topic once, nudged into it by filling out the directive, we found it easier to return to the subject over the years as my dad’s condition faltered. We and his doctors were all clear about what he wanted — right up to the point when he decided he’d had enough. I cannot imagine how much more difficult those final days would have been without those previous conversations.

But most families do not have the advantage of having an elder-care expert “on staff.” If this regulation prods more doctors into a difficult conversation, if it prods more people into thinking about these issues when they have the luxury of time for reflection, that seems like a good idea to me.

Can such a process be abused? There is no system created by humanity that cannot be turned to evil ends. And yet most of us own a hammer.

By: Jeffrey Weiss-Correspondent-Politics Daily, January 2, 2011; Photo- Getty Images

January 3, 2011 Posted by | Death Panels | , , , , , , , | Leave a comment


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