Talking Seniors to Death

First, the bad news.  For the first time since 1975, Social Security recipients are being told they won't be receiving an annual cost of living increase in their monthly benefits.  At the same time, their Medicare premiums will go up, so monthly checks will actually shrink next year.  Not to worry, though.  Here's the good news.  Seniors may not have to live on such meager funds for long because the government is going to help them plan how they want to die.

This benevolent plan is in Section 1233 (p. 424) of the health care reform bill known as "America's Affordable Health Choices Act of 2009" (HR 3200).  It didn't just show up on the doorstep of health care reform, but was packaged and delivered by Compassion & Choices (C & C), the assisted-suicide advocacy group previously known as the Hemlock Society. 

Under Section 1233, a doctor would be paid for having an "advance care planning consultation" with a patient.  The consultation wouldn't be mandatory, at least for now.  But if the doctor wants to get paid for it, the consultation's contents are very specifically prescribed.  For example, each consultation "shall include" an explanation of legal documents such as living wills and durable powers of attorney, and information about the "continuum of end-of-life services."  Patients need not be ill but, because they are over a certain age, their doctors will suggest that it's time to talk about death.  

So, if George, a healthy 70-year-old marathon runner, goes to the doctor because of tendonitis, his doctor will have the all-important discussion with him, reminding him that he's not getting any younger and that it's time to decide how he'll die.   Sure, George may or may not be adversely affected by this.  But consider Clara, an 84-year-old widow who needs a hip replacement. If the doctor tells her that the government health plan won't pay for her surgery but will pay for pain pills, and then tells her it's really time to discuss her end-of-life options, what message is she getting?  Isn't it likely that Clara will acquiesce, if her doctor suggests that she "choose" to forgo treatment for any future illnesses so she won't be a burden on her family?    

To hear proponents of Section 1233 talk about it, one would think that people have no access now to information about advance directives.  But for years, federal law has required that patients be provided with general information about advance directives.  

In 1992, Congress passed the Patient Self-Determination Act.   It requires every health care organization receiving Medicare or Medicaid funds to do the following: at the time of admission, provide a written summary of a patient's rights under state law to make health care decisions, including the right to have an advance directive; ask all adults entering for treatment whether they have an existing advance directive; and document the existence of an advance directive in the patient's medical record.

Cheerleaders for more advance care planning claim that physicians won't tell their patients about options regarding available treatments and the right to accept or reject them unless they receive reimbursement for doing so.  But physicians already have a responsibility to provide that information to patients so they can give or withhold consent to available treatments.  This is known as informed consent. 

Yet there are calls for more details about end-of-life planning.  Perhaps those who are advocating this are unaware that, beginning in 2009, doctors have been required to discuss end-of-life planning, including advance directives, with all Medicare patients at their initial "Welcome to Medicare" physical exam. 

With all of these current requirements, isn't paying doctors to have another talk with grandma just a bit of, shall we say, overkill?   Is foisting yet another death planning chat with her really necessary?  And what would be part of the "end-of-life continuum" discussion?

In most states that continuum would culminate in such services as palliative care and hospice.  However, in Oregon and Washington the continuum extends to the provision of a prescription for a lethal dose of drugs under those states' "Death with Dignity" laws.  This should be of concern to all. 

The background of Section 1233 sheds some light on its inclusion in the health care reform bill. 

According to C & C's newsletter, the organization has worked long and hard for such language, which is "part of a great advance in end-of-life care, building upon several years of thoughtful and strategic groundwork."  C & C proudly acknowledges its leadership role in placing Section 1233 in the bill: "Compassion & Choices and its supporters have worked tirelessly with supportive members of Congress to include in proposed reform legislation a provision requiring Medicare to cover patient consultation with their doctors about end-of-life choice (section 1233 of House Bill 3200)." And it plans to continue leading the charge:

"As Congress debates health insurance reform, Compassion & Choices is leading the charge to make end-of-life choice a centerpiece of any program that emerges. We are working hard to reach our goal to make end-of-life choice a centerpiece of national health insurance reform."

C & C has worked hand in hand with Oregon Congressman Earl Blumenauer who it describes as a "long-time supporter of individual choice."  Indeed, Blumenauer has been an outspoken supporter of Oregon's assisted-suicide law, the "Death with Dignity Act."  During a floor speech in 1998, he stated:

"In Oregon, our legislation, Death with Dignity, is still a work in progress, but the fact is the preliminary evidence suggests that this option may actually reduce the incidence of violent suicide while easing the burden on both the individual and their family....

"As we age as a society, exponentially, with the increase of the elderly population, and just the growth in our population, this will become more serious....The evidence suggests that Americans support the principles of Death with Dignity."

In a 2004 press release, he applauded a court ruling that upheld the assisted-suicide law. 

"This is a great victory for the people of Oregon who decided not once, but twice that people should have the right to make personal end-of-life decisions without federal interference," he said.   (Blumenauer seems to ignore the fact that, also in 2004, he said the government shouldn't meddle in personal end-of-life decisions.  Yet, now he's attempting to dictate the content of communication between patients and their doctors.)

He continued, "Every day people across the country struggle with these end-of-life decisions but Oregon is the only state that has protections and safeguards in place." (Note that he, like other assisted-suicide activists, refers to assisted suicide as an "end-of-life decision.")

Blumenauer's "end-of-life" terminology is part and parcel of Section 1233.  Clearly expressing his ownership of the section, he described an incident that took place when he was presiding over House proceedings.  Writing about Section 1233 in the Huffington Post, Blumenauer stated, "Actually, I know a little bit about this section because it's a bill that I wrote which was incorporated into the overall legislation."

His earlier incorporated bill is HR 2911, called the "Advance Planning and Compassionate Care Act."    In fact, a portion of that bill, (Sec. 211, p. 50) makes up almost the entirety of Section 1233. 

Although Blumenauer and other defenders of Section 1233 vociferously deny that it could have anything to do with assisted suicide, his earlier bill acknowledged that assisted suicide would be included in such consultations.  Since federal law currently prohibits federal funding from being used for "items and services" related to assisted suicide, Blumenauer inserted language into HR 2911 (Sec. 111, p. 19) stating that advance care planning "shall not be construed to violate the Assisted Suicide Funding Restriction Act of 1997."   That exception did not make its way into HR 3200, probably because any reference to assisted suicide would raise red flags.   Also, not contained in HR 3200 is a provision from Blumenauer's earlier bill (Sec. 121, p. 31) to "encourage providers to discuss advance care planning with their patients of all ages."

Blumenauer is not the only lawmaker to propose advance care planning consultations.  Senator Mark Warner (D-VA) introduced a similar bill, curiously called the "Senior Navigation and Planning Act of 2009" (SB 1251).  Warner told Medical Futility that he submitted the legislation because Congress is considering health care reform and he would like to see some of his ideas incorporated into that legislation.   His bill (Sec. 6, p. 14) would force doctors to provide information on advance directives and other end-of-life planning tools in "a form and manner, and at a time, determined to be appropriate by the Secretary [of Health and Human Services]." The consequence for not doing so would be severe.  No payment would be made to physicians for any items and services furnished after January 1, 2014,  unless they agreed (under a process established by the Secretary) to provide individuals with information on advance directives and other end-of-life planning tools.

Technically, a patient would not be forced to have an advance care planning consultation. However, physicians would be unlikely to treat them unless they agreed to do so since doctors who didn't provide the end-of-life talk would not be paid for any other services.

Could coercion like this be avoided by deleting the advance care planning consultation from HR 3200?  Clearly, the answer is "No."  If a particular intervention is not mentioned in HR 3200, it can easily be reinserted when the details of covered benefits are determined by one of the myriad committees that would be charged with formulating the particulars through the rule-making process.  In the final analysis, any "benefit" that is not explicitly prohibited in a health care reform bill could become a covered benefit. 

Would the actual provision of assisted-suicide drugs be covered?  That would certainly be cost effective, since dead patients don't consume Medicare dollars.  But coverage of the actual lethal prescription wouldn't be necessary. As Oregon's suicidal approach to health care has demonstrated, a government health plan could deny wanted and needed treatment and then suggest assisted suicide as an alternative.  Initially, an organization like C & C could pay for the oh-so-inexpensive lethal prescription. 

Such assistance by C & C would undoubtedly be touted as compassionate, would advance the organization's agenda and could, eventually, lead to the repeal of the Assisted Suicide Funding Restriction Act.  C & C has many powerful friends on Capitol Hill, including Senator Dianne Feinstein (D -CA).  Feinstein, who is the honorary co-chair for a November 5 fund-raiser for C & C, is on record endorsing a failed proposal for an Oregon-style assisted-suicide law in California.   So it is not beyond the realm of possibility that, if HR 3200 passes, assisted suicide could eventually be an included benefit in any qualified health benefit program.

However, passage of the bill is far from assured, thanks to seniors across the country.  They have read Section 1233.   They are making it clear that they want no part of government-designed death talk.  They are savvy.  They are informed.   They are not angry mobs.  They are intelligent citizens who have been expressing their strong opinions.  For now, they are successfully fending off the soft smothering cushion of deadly governmental paternalism.  But they cannot stop now. 

Only by continuing to speak up and speak out will seniors be spared the subtle and not so subtle pressure to die and get out of the way.

Rita L. Marker is an attorney and executive director of the International Task Force on Euthanasia and Assisted Suicide.
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