Proposed health-care reform has been sidetracked by uproar over a so-called "death panel" provision that some conservatives argue is a step toward euthanasia. But elder law expert Richard L. Kaplan says those end-of-life counseling services are nothing new, and have benefits for both patients and government spending. Kaplan, a law professor and member of the National Academy of Social Insurance, examines the health-care planning tool in an interview with News Bureau Business and Law Editor Jan Dennis.
What exactly is meant by "end-of-life counseling"?
For nearly 25 years, Americans in most states have been able to document the extent of medical interventions they would want if they have impaired mental capacity or are unable to communicate their preferences. These documents are typically called "advance directives" and come in two varieties - living wills, which state that the person does not want certain life-sustaining procedures if he or she has a terminal condition; and health-care proxies or powers of attorney, which designate someone to make care decisions for that person. Discussing which form is most appropriate for a specific patient and what it should contain is often called "end-of-life counseling."
Is such counseling necessary?
Not necessarily. The applicable forms that let patients outline their wishes in advance are only one or two pages long, and they are available for every state from various Web sites without charge. In addition, a federal law, the Patient Self-Determination Act of 1990, requires that anyone over the age of 17 who is admitted into a hospital, nursing home, or home health agency be informed of the right to create an advance directive and given the relevant forms at that time. Nevertheless, some people prefer to discuss their options with a health-care provider, especially their primary-care doctor.
Does the proposed health-care plan mandate such planning?
Not at all. The proposed plan merely indicates that Medicare will treat the time that a physician spends counseling a patient about advance directives as a reimbursable expense, meaning that the physician can be paid for providing such counseling.
Why is physician payment for such counseling important?
Nearly 30 percent of Medicare's total budget is spent for care provided in a patient's final year of life. Some of this care may be desired by the patient, but much of it is not, and an advance directive can provide a basis for not providing unwanted medical interventions. And although most people have strong views on this issue, the vast majority have not completed an advance directive.
A study by the Government Accounting Office in 1995 found that one reason for this situation is that physicians are not paid for their time counseling patients about advance directives, and a 2008 report to Congress by the RAND Corp. found much the same thing. The American Medical Association itself claims that "financial incentives would encourage discussion of advance directives."
How would the proposed plan change the law in this regard?
Medicare patients would be able to receive such counseling every five years at Medicare's expense. Since 2005, Medicare has paid for such counseling if the patient is "terminally ill," and starting this year, new Medicare enrollees have been able to receive such counseling as part of their so-called "Welcome to Medicare" initial physical examination. The proposed plan, therefore, is really not as radical a change as it has sometimes been portrayed.