Fact checking the death panel scare

One thing I have learned in the culture wars is to check the specifics of breathless claims from both left and right. So here is a claim from the Liberty Counsel that is making its way around the echo chamber:

Medicare Regulations Revive “Death Panels” of ObamaCare Bill

Is this true? Is Medicare about to unleash a panel of Dr. Deaths on the nation’s elderly? Not at all. This Wall Street Journal article has it about right, describing what Medicare is about to implement via their rule making process:

Advance care planning lays out the options and allows patients, in consultation with their providers and family members, to ensure that their future treatment is consistent with their wishes and moral values should they become too sick to decide for themselves.

To their credit, Liberty Counsel links to the Federal Register issue containing the new regulation, but unfortunately then misrepresents what it says. As noted by the WSJ, discussing advanced directives is something patients should do.

Called “voluntary advance care planning” in the Medicare regulation, this new rule allows physicians to be reimbursed for this consultation during the annual wellness visit, a service allowed by Medicare which covers all sorts of preventive care. The service is defined in the Federal Register:

Voluntary advance care planning means, for purposes of this section, verbal or written information regarding the following areas:

(i) 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.

(ii) Whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive. (p. 73406 & 73614).

No death panel there; just the patient, perhaps family, and the physician. Since the conversation is voluntary, a patient can avoid the whole thing. Physicians are allowed to provide written information about how to construct an advanced directive and what individual physicians will do under certain conditions. Physicians must provide informed consent to care and letting patients know what they will do is good practice. If a patient doesn’t like the approach of that doctor, then another doctor can be pursued. I like this approach much better than just waiting around for something to happen and then trying to figure out what the patient would have wanted.

These are important and necessary conversations, even though they can be emotionally difficult. The Federal Register cites studies which suggest that patients appreciate the opportunity to express their wishes and are not harmed by doing so.  

Back to the current flap. Where WSJ gets a little misty is when they let Sarah Palin and by extension other fear mongers off the hook a bit by saying that Palin really wants to talk about rationing of care when she writes about “death panels” (as she does here – note the title of the column).

Now I have a whole page on this blog devoted to debunking myths about Sarah Palin so I think it is fair to comment when she is stretching things. If you want to talk about rationing of care, then talk about rationing of care. Voluntarily discussing advanced directives with a personal physician is not a “death panel” nor is it of necessity rationing of care.

Lifenews.com is running a headline claiming that pro-life leaders want the new Congress to overturn the regulation. I am pro-life and I hope the new Congress does not overturn the regulation. I believe physicians should be reimbursed for bringing up the difficult topic and making adequate preparations for the inevitable. Conversations about end-of-life care will happen with or without the regulation. The question is: Will they happen with the patient’s wishes known or not?

UPDATE: Here are some Christian and pro-life groups which advocate advance directives. All the Medicare regulation does is include such planning in annual wellness visits if the patient agrees. Medicare patients could use any of these resources in conversation with their physicians.

Focus on the Family

Anglicans for Life

Physicians for Life 

National Right to Life

Aquinas Institute

Center for Bioethics and Human Dignity

This list was generated after about 5 minutes of searching. I suspect there are other groups with similar recommendations. There is nothing in the Medicare regulations which requires patients to accept a physician’s views if at odds with the patient’s views (although some state laws may allow a physician to ignore advanced directives). Nothing I can find in the Medicare regulation prohibits a patient from drawing on faith based resources to inform these conversations.

Added on Jan 3, 2011: I think it is important to note the voluntary element of these conversations from the Medicare regulations. Advanced care planning may be conducted at the initial Medicare visit and at the annual wellness visit, if the patient agrees. Here is how the Medicare regulation includes the procedure in these visits:

Voluntary advance care planning as that term is defined in this section upon agreement with the individual.

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  • Lynn David

    Where WSJ gets a little misty is when they let Sarah Palin and by extension other fear mongers off the hook a bit by saying that Palin really wants to talk about rationing of care when she writes about “death panels”….

    Is it too much to ask that our political leaders, whomever they should be, show a little common sense?

  • john

    Call it what you like, but the ultimate end for the BIG GOVERNMENT to get its nose under the tent and INTERFERE with personal and family decisions that is ABSOLUTELY NONE OF THEIR BUSINESS. I’m appalled that you, Warren of all people get pulled into the big government tent so easily. I thought you were sharper than that.

  • john – where is it written in these regulations that big government has anything to do with these advanced directive conversations?

    If you find it, please enlighten us. I was unable to find where Medicare would be involved at all except to pay the physician for the time expended.

    I agree with you that government may not interfere with personal and family decisions and nothing in this regulation will allow any such interference. Please point out in the regulation where you think this happens.

  • Warren,

    Thanks for the piece, it’s good to have all of our ducks in a row, especially on something so contorversial.

    The comments from the people we quoted stand for themselves and, as is the case with any news story, don’t necessarily represent the views of LifeNews.com.

    Our position is probably somewhere in the middle: On the one hand, we’ve provided news coverage about the positive ways in which advanced directives can help people preserve medical care. On the other, we’ve covered how governments in places like England and Canada ration care when the government begins taking over or influencing the health care system — as has just happened here.

    As you say: “The question is: Will they happen with the patient’s wishes known or not?”

    That’s the $50,000 question isn’t it. Will doctors work with patients to help them design directives that promote care or ration it? That’s why NRLC, one of the groups you mentioned in your piece, has a Will to Live project that is designed to promote care that is positive and life-affirming without revoking lifesaving medical treatment.

    What should also be noted are the ways in which NRLC warned lawmakers that the ObamaCare bill presented rationing and other treatment concerns from a pro-life perspective. (http://www.lifenews.com/2010/02/22/bio-3058)

    It got lost in the abortion-funding debate but the concerns are real and legitimate. They and the other groups mentioned above may have concerns with the “death panels” and I don’t know that that’s the case.

    Although it is warped and twisted in the abortion debate, surely we can agree that, here, these advanced directives should be between a patient and his doctor — without governmental decision-making or interference — and without giving doctors financial incentives to have the talks.

    Thanks for all you do for the cause, Warren, it is greatly appreciated.

    Steven Ertelt, Editor


  • Timothy Kincaid


    how dare you let facts get in the way of advocacy!!

    Hope you had a very merry Christmas and that this new year provides joy and fulfillment.

  • As a healthcare professional, and maybe even more so as a home health care provider I beg all patients to establish advance directives. Many times I have heard people express a wish for no intervention should the end of life occur but because they didn’t take the time to make their wishes legally known they undergo CPR, ventilators and other extreme measures that often do not extend quality life but merely cause suffering before a delayed death. In my position, if I am in your home and you do not have written, signed orders stating you do not want CPR and your heart stops I have to give CPR, no matter how medically fragile you are, no matter how many of your ribs I break, no matter how unlikely you are to benefit from this. Only a small percentage of people who have CPR performed fully recover. Many people don’t want it done but without that advance directive I have no legal option. Sadly one of the reasons that people don’t have these papers in place are that doctors don’t have time to iniate the discussion and patients don’t know who to talk to, how to talk to them, or how to bring it up. Some have told me it feels like saying you want to die when that’s not the case at all. From 10 years of working with Medicare patients I know that most have very clear ideas of what they want to be done, but many don’t know how to get those ideas into writing so they are automatically “full codes”. Not long ago I had a patient who had just had open heart surgery rapidly decline while I was seeing him. I was praying that the ambulance arrived before he quit breathing because he was declining that rapidly. He did not have directives and CPR would have ruptured all the repair done to his chest following surgery, leading to all kinds of complications and probably not saving his life. Months later we discussed that day and I told him how afraid I was that he would not make it until I had assistance. He was horrified because he wanted no interventions, but he didn’t have that in writing.

    Medicare pays a sum per visit, unlike traditional insurances where my doctor bills for how long he sees me. This doesn’t add cost, it just allows people to specify what they want.

    It doesn’t take a physician and it is not a decision the physician makes. A physician cannot even decide to place a patient on hospice care (no further interventions to sustain life but all measures to maintain comfort); the patient requests it and the physician signs a statement that the patient is likely to live less than 6 months. If the patient lives longer than hospice continues until a joint decision is reached between the patient and hospice that hospice isn’t appropriate.

    If you prefer to do it yourself you can with a notary signature. One format I like a lot is called Five Wishes and can be found at http://www.agingwithdignity.org/five-wishes.php It’s done by you, is specific yet lets you have space to personalize, and then in some states your signature is all it takes; in others it requires a notary. You then give this to your healthcare providers.

    We live in a world with constant access to information. Five Wishes is easy for an internet savvy person to find, given the desire. But for someone who has never touched a computer? They need someone to be assigned to initiate this conversation.

  • surely we can agree that, here, these advanced directives should be between a patient and his doctor — without governmental decision-making or interference — and without giving doctors financial incentives to have the talks.

    So essentially the only thing that would satisfy such a conspiratorial view would be to make individuals pay for this service out of pocket? If simply funding something through Medicare constitutes collaboration or coercion by the government, I think we have reached a rather ridiculous impasse.

    Those who think that health care is not rationed in the US in ways that have absolutely nothing to do with the government are simply living with their heads in the sand. Having advanced health care is useless without access, and millions here have no access.

    Just try to take that away from those Canadians or British you so casually slander with uninformed comments. Overwhelmingly they love their systems which work quite well. Britain for one manages to provide excellent care to all who need it for 5.7% of GDP. We can’t even get a public option passed because of the heinous FUD spread by organizations such as yours which pose as actual news outlets.

    At what point did a nation pooling it’s resources to ensure the health care of it’s citizens without prejudice become something evil? I’m as big a capitalist as the next guy, but it really has no place in health care. We are not talking toasters or TVs here, things which one can easily do without. A true conservative in the classic sense would see this.

  • ken

    The problem with the health care debate is the extremists on both sides. The anti-gov. types give extreme anecdotes about how someone in england didn’t get necessary treatment. While the pro-gov types give anecdotes about how a medical insurance co. in the u.s. denied coverage for necessary treatment.

    Sadly, I’ve seen far to many instances of the “I’ve got mine, screw everybody else” philosophy in this debate.

  • stephen

    There are no extremists. There are liars and those of us who try to cope with their lies. Liars paid for by the insurance industry. I only hope these ‘Christian’ groups quoted can explain their lies to the Maker in whom they claim to believe. And I hope that they never discover the hospice movement. My mother died in my arms thanks to their work. These Christian front groups would have shut her, and me, out of end of life care.

    It’s about time you people grew up.

  • Jayhuck

    As a nurse, I have to thank you for this piece Warren. There has been so much fear-mongering surrounding this important issue. I appreciate you separating fact from fiction 🙂