Here I go again, misinterpreting "end of life" consultations to death....

More on death panels.

The provisions in the healthcare bill which gave rise to the term are being scrapped. At the same time (as the LA Times condescendingly reports), the provisions are being said to have not ever existed:

A Senate panel has decided to scrap the part of its healthcare bill that in recent days has given rise to fears of government "death panels," with one lawmaker suggesting the proposal was just too confusing.

The Senate Finance Committee is taking the idea of advance care planning consultations with doctors off the table as it works to craft its version of healthcare legislation, a Democratic committee aide said Thursday.

Sen. Charles E. Grassley of Iowa, ranking Republican on the committee, said the panel dropped the idea because it could be "misinterpreted or implemented incorrectly."

For Democrats, the decision was an apparent acknowledgment that the provision had become a lightning rod for critics of a proposed overhaul of the U.S. healthcare system. Democratic lawmakers and President Obama are trying to extend health insurance to more people, rein in health costs and make other changes.

Recently, former Alaska Gov. Sarah Palin speculated that Obama and other Democrats wanted to set up "death panels" to decide who gets medical services and who does not.

In reality, the provision was designed to allow Medicare to pay doctors who counsel patients about planning for end-of-life decisions. The consultations would be voluntary and would provide information about living wills, healthcare proxies, pain medication and hospice.

I have read the provision six times, and it's not at all clear to me what it means, much less what it was "designed" for by its authors (whoever they may be).

In a post Glenn Reynolds linked yesterday, Fabius Maximus opined that it was designed with cost cutting in mind, and thus he takes issue with Sarah Palin, who thought (and apparently continues to think) it was designed with death panels in mind. Of course, if "end of life" consultations have in mind the cutting of costs, that would certainly seem to raise a reasonable inference about whether shortened lives are cheaper.

As I said, I have no problem with an individual deciding to forgo life-extending procedures, but I am adamant in my opinion that the state should stay the hell out of it.

If the state would save money by a patient's early death, then the state is in a clear conflict of interest.

I say this as someone who supports the right of the individual even to take his own life, and to have physician assistance with dying. The state should be nowhere near that decision, though, and not involved even in a purely advisory or consultative capacity. End of life planning is not the government's business, and it horrifies me to suggest that it should be. I don't care if they call it "voluntary."

Aren't we forgetting that the words "voluntary" and "volunteer" are two of the most abused words in the English language, and that much of this abuse has been at the behest of bureaucrats, and accomplished by means of sneaky gobblygook known popularly as "bureaucratese"? Thus we have paid "volunteers," and "voluntary compliance" with the IRS code under penalty of imprisonment.

So if a group of doctors approaches an elderly patient (many of whom have not a friend in the world and don't want to be a burden) and they announce that they would like to set up an end of life consultation, with a caveat that "this program is purely voluntary," how many compliant seniors will tell these authority figures to butt out?

Another reason I'm skeptical of reassurances made about the intent behind complex laws is that laws -- even relatively simple laws (which Section 1233 of HR 3200 is not) -- are often designed for one thing end up being used for something entirely different. Everyone thought that RICO laws were intended to be used against racketeering (which meant groups like the Mafia), yet today they're deployed against ordinary prostitutes. A law which was intended to stop the commerce in sexually tittillating so-called "crush videos" ended up being used to prosecute depictions of animals fighting. And thanks to what Reason called "legislative mission creep" the Patriot Act (supposedly designed to be used against Islamic terrorists) is now a tool in the prosecutorial arsenal against such "terrorism" as drug dealing, sudafed, pirated DVDs, and illegal lobsters!

So, no, I don't trust them, and I like the fact that Sarah Palin pared through the "end of life" advance planning consultations bullshit and used the term "death panels."

The Democrats promise that a government health care system will reduce the cost of health care, but as the economist Thomas Sowell has pointed out, government health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama's "death panel" so his bureaucrats can decide, based on a subjective judgment of their "level of productivity in society," whether they are worthy of health care. Such a system is downright evil.

Health care by definition involves life and death decisions. Human rights and human dignity must be at the center of any health care discussion.

Ann Althouse thought she had a point. So did law professor William A. Jacobson. And so did Tom Maguire, who issued a sarcastic warning that we should not be calling them death panels.

Sorry, but I'll call them death panels, and I'm glad they're apparently dead and that it's all a moot issue.

Which means that as usual, the president was just speaking for himself and no one else (well, except maybe his science advisor) when he said this in a New York Times interview back in April:

THE PRESIDENT: So that's [what you do around things like end-of-life care] where I think you just get into some very difficult moral issues. But that's also a huge driver of cost, right?

I mean, the chronically ill and those toward the end of their lives are accounting for potentially 80 percent of the total health care bill out here.

So how do you -- how do we deal with it?

THE PRESIDENT: have to have some independent group that can give you guidance. ...

Not death panels, just end-of-life cost-cutting consultations.

If the scrapped proposal was just the government's way of trying to save money, well, maybe the government shouldn't be in such a position. Maybe health care shouldn't be in the hands of the government. What seems to be driving this whole push for socialized health care (yes, I will call it that!) is that Medicare is running out of money. Well, that's bad enough, but isn't that evidence that socialized medicine does not work, and that Medicare should simply be scrapped?

Instead, the impending bankruptcy of Medicare is seen as a justification to expand the unworkable construct. So, while Medicare as we once knew it will repealed (even the CBO admits that it would eventually be made to wither away), the underlying bad idea -- government health care -- must be expanded until it engulfs and devours the entire health care system.

Sarah Palin was essentially right in her criticism.

So was Thomas Sowell.

Socialism equals death.

MORE: While he tried to wiggle out of it later, to his great credit Ronald Reagan opposed Medicare, and he explains why here:

Reagan was right.

And here's the text of the mess that's under discussion (but which has apparently been removed because it was being misinterpreted):

''Advance Care Planning Consultation''

(hhh)(1) Subject to paragraphs (3) and (4), the term 'advance care planning consultation' means a consultation between the individual and a practitioner described in paragraph (2) regarding advance care planning, if, subject to paragraph (3), the individual involved has not had such a consultation within the last 5 years. Such consultation shall include the following:
''(A) An explanation by the practitioner of advance care planning, including key questions and considerations, important steps, and suggested people to talk to.
''(B) An explanation by the practitioner of advance directives, including living wills and durable powers of attorney, and their uses.
''(C) An explanation by the practitioner of the role and responsibilities of a health care proxy.
''(D) The provision by the practitioner of a list of national and State-specific resources to assist consumers and their families with advance care planning, including the national toll-free hotline, the advance care planning clearinghouses, and State legal service organizations (including those funded through the Older Americans Act of 1965).
''(E) An explanation by the practitioner of the continuum of end-of-life services and supports available, including palliative care and hospice, and benefits for such services and supports that are available under this title.
''(F)(i) Subject to clause (ii), an explanation of orders regarding life sustaining treatment or similar orders, which shall include--
''(I) the reasons why the development of such an order is beneficial to the individual and the individual's family and the reasons why such an order should be updated periodically as the health of the individual changes;
''(II) the information needed for an individual or legal surrogate to make informed decisions regarding the completion of such an order; and
''(III) the identification of resources that an individual may use to determine the requirements of the State in which such individual resides so that the treatment wishes of that individual will be carried out if the individual is unable to communicate those wishes, including requirements regarding the designation of a surrogate decisionmaker (also known as a health care proxy).
''(ii) The Secretary shall limit the requirement for explanations under clause (i) to consultations furnished in a State--
''(I) in which all legal barriers have been addressed for enabling orders for life sustaining treatment to constitute a set of medical orders respected across all care settings; and
''(II) that has in effect a program for orders for life sustaining treatment described in clause (iii).
''(iii) A program for orders for life sustaining treatment for a States described in this clause is a program that--
''(I) ensures such orders are standardized and uniquely identifiable throughout the State;
''(II) distributes or makes accessible such orders to physicians and other health professionals that (acting within the scope of the professional's authority under State law) may sign orders for life sustaining treatment;
''(III) provides training for health care professionals across the continuum of care about the goals and use of orders for life sustaining treatment; and
''(IV) is guided by a coalition of stakeholders includes representatives from emergency medical services, emergency department physicians or nurses, state long-term care association, state medical association, state surveyors, agency responsible for senior services, state department of health, state hospital association, home health association, state bar association, and state hospice association.
''(2) A practitioner described in this paragraph is--
''(A) a physician (as defined in subsection (r)(1)); and
''(B) a nurse practitioner or physician's assistant who has the authority under State law to sign orders for life sustaining treatments.
''(3)(A) An initial preventive physical examination under subsection (WW), including any related discussion during such examination, shall not be considered an advance care planning consultation for purposes of applying the 5-year limitation under paragraph (1).
''(B) An advance care planning consultation with respect to an individual may be conducted more frequently than provided under paragraph (1) if there is a significant change in the health condition of the individual, including diagnosis of a chronic, progressive, life-limiting disease, a life-threatening or terminal diagnosis or life-threatening injury, or upon admission to a skilled nursing facility, a long-term care facility (as defined by the Secretary), or a hospice program.
''(4) A consultation under this subsection may include the formulation of an order regarding life sustaining treatment or a similar order.
''(5)(A) For purposes of this section, the term 'order regarding life sustaining treatment' means, with respect to an individual, an actionable medical order relating to the treatment of that individual that--
''(i) is signed and dated by a physician (as defined in subsection (r)(1)) or another health care professional (as specified by the Secretary and who is acting within the scope of the professional's authority under State law in signing such an order, including a nurse practitioner or physician assistant) and is in a form that permits it to stay with the individual and be followed by health care professionals
and providers across the continuum of care;
''(ii) effectively communicates the individual's preferences regarding life sustaining treatment, including an indication of the treatment and care desired by the individual;
''(iii) is uniquely identifiable and standardized within a given locality, region, or State (as identified by the Secretary); and
''(iv) may incorporate any advance directive (as defined in section 1866(f)(3)) if executed by the individual.
''(B) The level of treatment indicated under subparagraph (A)(ii) may range from an indication for full treatment to an indication to limit some or all or specified interventions. Such indicated levels of treatment may include indications respecting, among other items--
''(i) the intensity of medical intervention if the patient is pulse less, apneic, or has serious cardiac or pulmonary problems;
''(ii) the individual's desire regarding transfer to a hospital or remaining at the current care setting;
''(iii) the use of antibiotics; and
''(iv) the use of artificially administered nutrition and hydration.''.

(2) PAYMENT.--Section 1848(j)(3) of such Act (42 U.S.C. 1395w-4(j)(3)) is amended by inserting ''(2)(FF),'' after ''(2)(EE),''.
(3) FREQUENCY LIMITATION.--Section 1862(a) of such Act (42 U.S.C. 1395y(a)) is amended--
(A) in paragraph (1)--
(i) in subparagraph (N), by striking ''and'' at the end;

(ii) in subparagraph (O) by striking the semicolon at the end and inserting '', and''; and
(iii) by adding at the end the following new subparagraph:
''(P) in the case of advance care planning consultations (as defined in section 1861(hhh)(1)), which are performed more frequently than is covered under such section;''; and
(B) in paragraph (7), by striking ''or (K)'' and inserting ''(K), or (P)''.
(4) EFFECTIVE DATE.--The amendments made by this subsection shall apply to consultations furnished on or after January 1, 2011.
(1) PHYSICIAN'S QUALITY REPORTING INITIATIVE.--Section 1848(k)(2) of the Social Security Act (42 U.S.C. 1395w-4(k)(2)) is amended by adding at the end the following new paragraphs:
''(A) IN GENERAL.--For purposes of reporting data on quality measures for covered professional services furnished during 2011 and any subsequent year, to the extent that measures are available, the Secretary shall include quality measures on end of life care and advanced care planning that have been adopted or endorsed by a consensus-based organization, if appropriate. Such measures shall measure both the creation of and adherence to orders for life sustaining treatment.
''(B) PROPOSED SET OF MEASURES.--The Secretary shall publish in the Federal Register proposed quality measures on end of life care and advanced care planning that the Secretary determines are described in subparagraph (A) and would be appropriate for eligible professionals to use to submit data to the Secretary. The Secretary shall provide for a period of public comment on such set of measures before finalizing such proposed measures.''.
(A) IN GENERAL.--Not later than 1 year after the date of the enactment of this Act, the Secretary of Health and Human Services shall update the online version of the Medicare & You Handbook to include the following:
(i) An explanation of advance care planning and advance directives, including--
(I) living wills;
(II) durable power of attorney;
(III) orders of life-sustaining treatment; and
(IV) health care proxies.
(ii) A description of Federal and State resources available to assist individuals and their families with advance care planning and advance directives, including--
(I) available State legal service organizations to assist individuals with advance care planning, including those organizations that receive funding pursuant to the Older Americans Act of 1965 (42 U.S.C. 93001 et 21 seq.);
(II) website links or addresses for State-specific advance directive forms; and
(III) any additional information, as determined by the Secretary.
(B) UPDATE OF PAPER AND SUBSEQUENT VERSIONS.--The Secretary shall include the information described in subparagraph (A) in all paper and electronic versions of the Medicare & You Handbook that are published on or after the date that is 1 year after the date of the enactment of this Act.

posted by Eric on 08.15.09 at 01:02 PM


What happens when hospices aren't staffed by people who want to be there but by gov't workers who can't be fired?

They'll be depressing, that's what.

My mother dealt with them a year ago and they were incredible. I don't know how they could be so upbeat dealing with people who are dying day in and day out.

I dread what happens when it becomes a gov't operation.

Anonymous   ·  August 15, 2009 8:57 PM

It isn't just the "end of life" language in the Senate and House bills (only the Senate one has been removed), but Obama's Health Czar Dr. Ezekiel Emanuel (brother of Rahm) has written some very problematic articles.

Oh, he is now claiming that he is being misquoted, but a close reading of the two articles in question belie that claim.

Darleen   ·  August 15, 2009 9:24 PM

I've linked to your post from Health Information Technology - Doctors Grade for approved care ... I assume this in the main rationing methodology - not the only one. Death waiting in the wrong DMV line.

Wayne from Jeremiah Films   ·  August 16, 2009 12:28 AM

Anonymous was me, not sure why that happened.

Veesir   ·  August 16, 2009 9:44 AM

This is not accurate. My post did not even mention the pending legislation -- nor any specific solutions to the problem. It's subject was the need for major changes in our health care system, and the irrationality of the debate about health care.

Since Palin has not explained (so far as I know) the basis for her comment about death panels, we can only guess at what she meant. Since there is nothing in the pending bill remotely like "death panels", I used the alternative explanation -- that she was extrapolating in a reasonable fashion from writings of an Obama advisor.

Unfortunately, the problem about allocating finite resources to health care is a real and difficult one. The current debate has, IMO, danced around the key challenges. For the good reason that most Americans are not yet ready for more. So all we get are both parties playing games for political advantage. Pretty rhetoric, nothing more.

Fabius Maximus   ·  August 16, 2009 8:55 PM
M. Simon   ·  August 17, 2009 2:58 PM
M. Simon   ·  August 17, 2009 3:00 PM
M. Simon   ·  August 17, 2009 3:01 PM

Fabius, I was referring to what you said here:


This dynamic already dominates the political debate. One of Obama’s key advisers wrote about the looming problem of heath care costs (Dr. Ezekial Emanuel, brother of Chief of Staff Rahm Emanuel), and discussed possible solutions. Which Republicans, like ex-Gov Palin, demonize as “death panels.” Our politicos cannot be wiser than us, the voters.


That is a link to Palin's discussion of the health care bill and her characterization of the care rationing scheme as one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care.

Sorry if I misinterpreted your interpretation! My objection remains to the involvement of government with health care in general and with end of life decision-making in particular.

I also think Medicare has paved the way for the push to "reform."

Eric Scheie   ·  August 17, 2009 8:01 PM

Yes, it was clear which of my posts you referred to. Your comment avoids my objection to this statement of yours:

"Fabius Maximus opined that it was designed with cost cutting in mind"

This is a small point -- but incorrect, as my post said nothing about any specific health care proposals. It discussed the *need* for reform, which was more than enough to fill 1100 words.

I mentioned Palin's August 7 facebook entry about "death panels". As she explained in her August 12 entry:

"My original comments concerned statements made by Dr. Ezekiel Emanuel, a health policy advisor to President Obama and the brother of the President’s chief of staff."

So I gave an except from Dr. Emanuel's writing. To repeat, there was no mention -- explicit or implied -- of any legislation.

My post discussed the danger posed by the rising cost of our social retirement systems, and the irrational nature of the current debate about our health care spending. Both parties prefer to score political points rather than grapple with this painful and complex schedule, IMO because the American public refuses to do so.

Fabius Maximus   ·  August 20, 2009 11:29 PM

Sorry again, Fabius.

I consider the statements made by Dr. Ezekiel Emanuel to be within the rubric of the discussion of the provision in question, as I did in the previous post on the subject:

Because of his position, I think Emanuel's statements raise questions about the intent of the legislation. And when you said, "this dynamic already dominates the political debate," I assumed you meant that you meant the debate over health care legislation.

Obviously I misread what you said, and I wrote my thoughts sloppily (which I am unfortunately sometimes prone to do). I did not mean to put words in your mouth, and clearly you did NOT opine that the provision in question had cost cutting in mind. (Whether it's a small point or not, one one likes to be misquoted.)

However, I think the cost cutting argument underlies the entire debate on health care, and the fact that it is (IMO) is an excellent argument against government health care in general.

Government should not be in the position of cutting health care costs.

Eric Scheie   ·  August 21, 2009 3:03 PM

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