by Rita L. Marker
On March 23, 2010, President Obama signed HR 3590, the "Patient Protection and Affordable Care Act" (P.L. 111-148, 124 Stat. 119) which was drafted by the Senate.
The following week, on March 30, 2010, he signed HR 4872, the "Health Care and Education Reconciliation Act of 2010" (P.L. 111-152, 124 Stat. 1029) as part of the budget reconciliation process, amending and modifying HR 3590. Together, they make up the new health care law that is often referred to as ObamaCare.
During the months leading up to passage of the health-care overhaul legislation, there was a lot of discussion—sometimes very heated discussion—about death panels, end-of-life consultations, and advance care planning.
But are those words in the new law?
The answer is "no."
In fact, the phrase, "death panel," was never in any version of the law. It was used by many to describe what they believed would happen if the law passed.
The reasons for that concern were provisions about end-of-life consultations and advance care planning that would be paid for under several early versions of health care reform.
Heightening that concern was the fact that the assisted-suicide advocacy group Compassion & Choices (C&C)—previously known as the Hemlock Society—had openly acknowledged that it had played a major role in formulating and supporting the end-of-life and advance care planning portions of the early bills.
However, one can search the more than two thousand pages of the new law and not find the words "end-of-life options" or "advance care planning." So, it would be tempting to breathe a sigh of relief and assume that the problems envisioned by earlier bills no longer exist.
Not so fast.
Assisted-suicide advocacy group claims victory
Advance care planning and consultations about end-of-life decisions are in the law. They’re just called something else.
That this is the case, was confirmed by C&C soon after ObamaCare was signed into law. Describing its passage, C&C’s web site noted:
[A]s a result of Compassion & Choices advocacy efforts, together with Senator Ron Wyden of Oregon, the new law includes a provision to require health insurers in the so-called Public Exchange to offer enrollees information on resources available for advanced care planning….
In addition, Compassion & Choices, together with others, successfully prevented the inclusion of a measure that would have undermined aid-in-dying laws in Washington. [Note: "Aid-in-dying" is C&C’s preferred term for assisted suicide.]
Compassion & Choices’ talented advocacy team is determined to continue strategizing a way forward.
So what provisions in ObamaCare have buoyed C&C’s spirits, leading the organization to claim that advanced care planning is actually contained in the law?
And how do those provisions compare with the earlier proposals that caused such consternation in the months leading up to its passage?
Offensive phrases in earlier drafts
Last summer’s firestorm of controversy erupted over one particular section of HR 3200, the measure then under consideration.
The catalyst for the label "death panels" was Sec. 1233 which would have paid practitioners (doctors, nurse practitioners, and physicians’ assistants) who provided "advance care planning consultations" to Medicare patients.
Among the elements that would have been included in those consultations were discussions of decision-making documents such as living wills and durable powers of attorney for health care, orders regarding life-sustaining treatments, and an explanation of the continuum of end-of-life services.
Many people viewed this as a subtle pressure on elderly patients to decide that they will make a decision to forgo treatment for an, as yet, undiagnosed condition.
In addition, the fact that, if such "advance care planning consultations" were to be paid for, a compulsory discussion about the "continuum of end-of-life services" was to be included.
Since consultations about that continuum would have encompassed all legal options, they would have included discussions about the Physician Orders for Life-Sustaining Treatment (POLST) form, the voluntary stopping of eating and drinking (VSED), terminal sedation, and assisted suicide in those states where it is considered a medical treatment. (See information below about current medical decision-making terms and tools.)
However, Sec. 1233 did not make the final cut, and the offending words found in that section are nowhere to be found in the new law.
ObamaCare, the NHS and "NICE"
Two sections, buried in the thousands of pages of the law, address the very same issues and provide for the same outcome as the earlier version of ObamaCare. Only the words have changed.
The first is Sec. 3201 which establishes a Center for Medicare and Medicaid Innovation (CMI) within the already existing Centers for Medicare & Medicaid Services (CMS).
Coincidentally, after ObamaCare passed, the president nominated Harvard professor Donald Berwick to head the CMS.
Berwick is an avid supporter of Britain’s socialized health care system.
In a 2008 address, he said, "I am a romantic about the National Health Service; I love it." Berwick has praised that country’s National Institute for Clinical Excellence— known by its Orwellian acronym, "NICE"—which is a panel of government selected experts who determine how funds for medical care should be allocated. NICE has been responsible for numerous Draconian measures, including denial of many cancer-treating drugs and placement of a monetary cap on the amount of money that can be spent on the last six months of a patient’s life.
In 2004, NICE urged all hospitals, hospice programs and nursing homes to institute a controversial "end of life care strategy" called the Liverpool Care Pathway.
Under Pathway protocols, which are now implemented nationwide, all food and fluids are removed from seriously ill patients who are then put under continuous sedation until they die. According to researchers at the Barts and London School of Medicine and Dentistry, 16.5 percent of Britain’s deaths in just one year (2007-2008) resulted from this method.
Yet, Berwick praises the British health care system. And, if his nomination is confirmed, he will be heading up the very department that, under Sec. 3201 of ObamaCare, will determine health care models that, among other things, "test innovative pay
ment and service delivery models to reduce program expenditures."
Under Berwick, the CMI will have the role of "assisting applicable individuals in making informed health care choices by paying providers of services and suppliers for using patient decision-support tools." Those tools are meant to "improve applicable individual and caregiver understanding of medical treatment options."
Thus, under Sec. 3201, providers of services (doctors, nurse practitioners, and physicians' assistants) and suppliers (insurance companies) will be paid for conducting consultations for Medicare patients about health care decisions, including end-of-life options. In effect, the offending words of the early bill drafts have been replaced with different words, but the meaning is still the same.
Unlike the earlier, seemingly more offensive language, the law will only pay for consultations if government approved "patient decision-support tools" are used.
"Entity" to formulate patient decision tools
Another section of ObamaCare (Sec. 3506) gives an indication about what these "patient decision-support tools" will look like. According to the new law, patient decision aids are intended to help patients and their health care providers decide what treatments are best for patients based on their treatment options. The law further stipulates that they "shall address health care decisions across the age span, including those affecting vulnerable populations."
As in early versions of the health care bill, health care decisions which address the end-of-life continuum would be the subject of the government-paid consultations that are now referred to as "assisting applicable individuals in making informed health care choices."
In addition, the government will "contract with an entity to establish standards and certify patient decision aids." That entity will "develop and identify consensus-based standards to evaluate patient decision aids" and will "develop a certification process [to determine] whether patient decision aids meet the standards."
Essentially, the law gives the outside "entity" control over what options are deemed appropriate for consideration by patients. And, after development of the patient decision aids, those which are certified by the "entity" will become the authorized tools that will be available through government resource centers.
There's a bit of a back story to the inclusion of "patient decision aids" and the provision that an "entity" under contract with the government will be empowered to design and certify those aids.
Beginning in mid-2009, various health care overhaul bills were proposed. Among these were several that were sponsored or co-sponsored by Senator Ron Wyden (D-OR) or Congressman Earl Blumenauer (D-OR), both of whom are publicly supportive of assisted suicide and Compassion & Choices.
In the early bills, as in the law that passed, there were provisions for the development of patient decision aids. Those drafts, like the bill that passed, would have authorized the government to contract with an outside entity to develop such aids so that Medicare patients would have a better understanding of medical treatment options.
It's almost a sure bet that first in line to become the outside "entity" to develop patient decisions aids under ObamaCare will be none other than Compassion & Choices or one of its affinity groups, since C&C has been working feverishly to position itself as a "patients' rights" organization that has expertise in educating the medical profession about decision-making with particular emphasis on end-of-life care.
C&C's description of end-of-life care is, indeed, all encompassing. In fact, Kathryn Tucker, the organization's director of legal affairs, who will be addressing the Idaho Medical Association's annual conference this summer, wrote a column for the ACLU of Idaho's newsletter (Spring 2010) in which she issued an invitation to Idaho physicians to engage in assisted suicide "among other end of life options."
There can be no question about the contents of patient decision aids if C&C is tapped to be the "entity" to design and oversee them.
[http://www.internationaltaskforce.org/iua53.htm, Vol. 24, No. 2, Special Report, Health Care Law: New Words, Same Meaning by Rita L. Marker, International Task Force Update, 2010. Marker is an attorney and the executive director of the International Task Force on Euthanasia & Assisted Suicide.]