Obama administration drops 'death panel' provision after controversy

Physician Consultation CNA US Catholic News 1 5 11

After enacting a Medicare regulation on Jan. 1 that would reimburse doctors for holding end-of-life planning consults with patients, the Obama administration swiftly reversed the move just three days later, after intense controversy swirled around the issue.

Although critics of the regulation argued that it was a push towards assisted suicide or advising elderly patients to forgo costly life-sustaining treatments, some Catholic experts held that end-of-life planning could instead be viewed as pro-life and consistent with Church teaching.

Uproar over the regulation began when the New York Times reported on Dec. 25 that the Obama administration quietly endorsed a policy that would reimburse doctors who give consultations to patients on end-of-life care as part of an annual wellness examination created by the new healthcare reform law. Though similar language was stripped from the final Senate health care bill which passed last March, the administration worked to achieve the same goal on Jan. 1 through a Medicare regulation. The Times observed that regulation writing could be an effective process for the administration to enact health care policies despite increasing Republican opposition in Congress.

Under the new regulation, Medicare would have covered “voluntary advance care planning,” to discuss end-of-life treatment, as part of an annual visit. During the visit, doctors would have provided information to patients on how to prepare an “advance directive” which would detail how aggressively they wish to be treated if they are incapacitated to make their own decisions in the future. The regulation was published in the Federal Register last November and was issued by Dr. Donald M. Berwick, administrator of the Centers for Medicare and Medicaid Services. 

But in an interesting twist, the Obama administration reversed its decision, just three days after the regulation was enacted on Jan. 1, according to the New York Times. Administration officials told the newspaper that the reason behind the decision was that the public did not have a chance to weigh in on the regulation.

“We realize that this should have been included in the proposed rule, so more people could have commented on it specifically,” an unnamed administration official said.

End-of-life planning provisions have been staunchly opposed by political conservatives since the drafting of the health care legislation in 2009.

Republican figures, such as 2008 vice presidential candidate Sarah Palin and current House Majority Leader Rep. John Boehner (R-Ohio) led the opposition, with Palin coining the term “Obama's death panels” and Rep. Boehner warning against what he considered to be a step towards “government-encouraged euthanasia.”

Elizabeth Price Foley, a professor of law at Florida International University who is politically unaffiliated, offered a more nuanced view in remarks to CNA on Jan. 4.

Although Foley said the term end-of-life planning “sounds innocuous enough,” she feared that elderly patients could be pressured into making decisions they don't understand. Foley also said that advanced directives in some states are slanted towards having patients refuse life-sustaining treatments and that redrafting one's own directive involves hiring an attorney, which can be costly and time consuming.

“If we coerce seniors into executing advanced directives we may intentionally or unintentionally coerce some of them into signing documents in which they express a desire to decline life-sustaining care when that's not really what they want,” Foley said. 

Richard Doerflinger, associate director of the Secretariat for Pro-Life Activities for the U.S. Catholic bishops' conference, said he shared concerns with conservatives over the issue but told CNA Jan. 4 that he didn't believe the Medicare regulation posed an “assisted suicide problem.”

“There is a good deal of polarization and exaggeration on many issues relating to health care reform; that's not confined to one party,” Doerflinger said. “I do think the 'death panels' charge spreads more heat than light.” 

Doerflinger said the reportedly defunct Medicare regulation didn't include a “panel” of any sort – “only a doctor and a patient who agree to talk about what treatments the patient may want in the future.” 

He noted Foley's concerns about elderly patients signing advance directives without proper knowledge, but said “I don't think that's sufficient reason for opposition in principle to offering people the opportunity to sign a form they do feel comfortable with.”

“For many patients the alternative to this – for example, expressing no wishes and so being left entirely to the mercy of insurers and medical personnel who have their own 'bottom line' to worry about –  may be worse.”

He went on to say that advance directives can be utilized in accord with Church teachings, noting that in “cases where the patient may become unconscious or unable to communicate, it can be helpful for that patient to put in writing what his or her general preferences are.”

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Doerflinger stressed caution when approaching the issue, however, saying that "Catholic teaching urges patients to accept life-sustaining treatment whose benefits outweigh the burdens, but there is much room for prudential decisionmaking within that principle."

Fr. Tadeusz Pacholczyk, who serves as director of education for the National Catholic Bioethics Center, agreed that caution is necessary, saying that patients “should never be offered immoral choices, such as euthanasia or assisted suicide, and end of life planning sessions should never become a fulcrum or pressure point to coerce individuals towards unethical treatment options.”

“All patient care and end of life planning must be patient-centered, seeking to assure that reasonable treatments options are available and utilized, while unreasonable or unduly burdensome treatment options are avoided,” he said.

“Generally speaking, end of life discussions are very important and need to be encouraged, but encouraged in the right way,” he added.

Fr. Pacholczyk said that, regrettably, many families never talk about these issues “until they are forced into them by urgent, unavoidable circumstances.”

“Designating a health care proxy, someone who loves us and who we trust, and who can make decisions for us if we become incapacitated, is an important step that every person should take to assist in proper management of end of life situations,” Fr. Pacholczyk said.

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