Obama Administration rescinds voluntary advance care planning rule

Just about an hour ago, the Health and Human Services Department rescinded the Medicare rule on voluntary advance care planning that had been misrepresented as the return of “death panels” by some social conservatives. I will comment more on this story but for now here is a link to the Federal Register and relevant portions of the order.

II. Provisions of the Amendment

In the July 13, 2010 Federal Register (75 FR 40039), we published the proposed rule entitled “Medicare Program; Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2011.” In response to this publication, we received comments from health care providers, and others urging us to add voluntary advance care planning as a specified element of the definitions of both the “first annual wellness visit” and the “subsequent annual wellness visit.” The commenters stated that their recommendations were based upon a number of recent research studies, and the inclusion by the Medicare initial preventive physical examination (IPPE) provisions of a similar element in the existing IPPE benefit.

CMS agreed with the commenters that voluntary advance care planning should be added as a specified element in the definitions of both the “first annual wellness visit” and the “subsequent annual wellness visit” based on the evidence provided and the inclusion of a similar element in the IPPE benefit (also referred to as the Welcome to Medicare CMS-1503-F2 3 exam) since January 1, 2009, and incorporated it into the final rule.

It has since become apparent that we did not have an opportunity to consider prior to the issuance of the final rule the wide range of views on this subject held by a broad range of stakeholders (including members of Congress and those who were involved with this provision during the debate on the Affordable Care Act). Therefore, we are rescinding the provision of the final rule that includes voluntary advance care planning as a specified element of the annual wellness visits providing personalized prevention plan services, and returning to the policy that was proposed, which was limited to the elements specified in the Act. We are revising our regulation at §410.15(a) to remove voluntary advance care planning as a specified element from the definitions of “first annual wellness visit providing personalized prevention plan services” and “subsequent annual wellness visit providing personalized prevention plan services” and to remove the definition of “voluntary advance care planning.”

And the rule is now amended to read:

For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR part 410 as set forth below: 

PART 410–SUPPLEMENTARY MEDICAL INSURANCE (SMI) BENEFITS

1. The authority citation for part 410 continues to read as follows:

Authority (42 U.S.C. 1302, 1395m, 1395hh, and 1395ddd). Secs. 1102, 1834, 1871, and 1893 of the Social Security Act Subpart B–Medical and Other Health Services § 410.15 [Amended]

2. Section 410.15 is amended as follows:

A. In paragraph (a), in the definition of “First annual wellness visit providing personalized prevention plan services” removing paragraph (ix) and redesignating paragraph (x) as paragraph (ix).

B. In paragraph (a), in the definition of “Subsequent annual wellness visit providing personalized prevention plan services” removing paragraph (vii) and redesignating paragraph (viii) as paragraph (vii).

C. In paragraph (a), removing the definition of “voluntary advance care planning”.

Let me note here that in 2008, the same concept was included in the Medicare Improvements for Patients and Providers Act of 2008 and remains a part of Medicare regulations for the first visit by a Medicare enrollee to a physician. George Bush vetoed that bill in 2008 but not because of the end-of-life counseling was included in the bill. He did so because he was concerned that the bill was too costly. I have looked in various search engines for record of opposition to the end-of-life provisions by social conservatives at that time. I found none.

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