NRL News
Page 15
January 2011
Volume 38
Issue 1

Outrage Leads to Reversal of ObamaCare Regulation
that “Nudges” Elderly to Reject Lifesaving Treatment

By Dave Andrusko

A story that appeared over the Christmas weekend in the New York Times revealed that the Obama Administration was using a surreptitious change in a Medicare regulation to fund “advance care planning,” a proposal so controversial that it was dropped from the already controversy-laden ObamaCare in 2010.

Times reporter Robert Pear explained that under the new policy, which took effect January 1, “the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment.”

But on January 4, Pear reported that the Obama Administration had deleted references to end-of-life planning as part of an annual physical exam. Administration officials told Pear they didn’t want the debate to become a “distraction” as Obama and Democratic congressional allies gear up to defend ObamaCare against determined Republican efforts to repeal and replace the law.

“The danger is that subsidized advance care planning will not just discover and implement patient treatment preferences but rather be used to nudge or pressure older people to agree to less treatment because that is less expensive,” warns Burke Balch, director of NRLC’s Robert Powell Center for Medical Ethics.

The abrupt change “shows that our opposition can and will make a difference,” Balch said. “Clearly the Administration is nervous about how the public perceives the law,” he added. “We must redouble our efforts to expose to all the rationing inherent in the ObamaCare.”

But Pear’s story contained a cautionary detail. “The decision to drop the reference to end-of-life care upset some officials at the Department of Health and Human Services,” Pear reported. He also added that (supposedly) “many doctors and providers of hospice care had praised the regulation.” Thus, while the Obama Administration has beaten a quick retreat, there is no reason to believe it won’t revisit the question.

The regulation was issued quietly in November in the Federal Register by Dr. Donald M. Berwick, administrator of the Centers for Medicare and Medicaid Services. NRLC strongly opposed Berwick’s selection. In a foreshadowing of what is coming to pass, he took office courtesy of a recess appointment, rather than be grilled by the Senate on his controversial views. At the time NRLC described Berwick as a “one-man death panel.”

Part of the ObamaCare legislation in the House was the now famous Section 1233 (eventually eliminated) which would have reimbursed doctors for discussing advance directives with their Medicare patients. NRLC and others feared that that these directives might include authorization to withhold lifesaving medical treatment, food, and fluids.

The Medicare regulation would have accomplished administratively what supporters failed to win legislatively. Worse yet, the Medicare regulation was stronger—worse—than Section 1233.

Critics warn that the regulation was a reflection of Berwick’s radical thinking. The December 26 New York Times story noted that Berwick has said, “Using unwanted procedures in terminal illness is a form of assault. In economic terms, it is waste. Several techniques, including advance directives and involvement of patients and families in decision-making, have been shown to reduce inappropriate care at the end of life, leading to both lower cost and more humane care.”

But almost worse was the manner in which supporters stealthily went about their business.

The final statutory version of ObamaCare authorizes Medicare coverage of a yearly “wellness visit.” But under the new (now deleted) regulation, which had gone undetected, the annual visit covered “voluntary advance care planning” to discuss end-of-life treatment.

In his December story, Pear wrote, “Several Democratic members of Congress, led by Representative Earl Blumenauer of Oregon and Senator John D. Rockefeller IV of West Virginia, had urged the administration to cover end-of-life planning as a service offered under the Medicare wellness benefit,”

Blumenauer, who authored the original end-of-life proposal (Section 1233), praised the rule as “a step in the right direction” (but not enough to actually alert the public), according to the Times’ story.

Evidently, Blumenauer and others learned of the Obama Administration’s plans back in November. In an e-mail sent out to other like-minded folks at the time, Blumenauer wrote, “While we are very happy with the result, we won’t be shouting it from the rooftops because we aren’t out of the woods yet.”

Why? “This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth.”

According to Pear, the e-mail continued: “Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response. The longer this goes unnoticed, the better our chances of keeping it.”

(For more about the numerous dangers of ObamaCare, see the story on page one.)