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The National Catholic Bioethics Center
Medicare Funding of Advance Care Planning: The NCBC Raises Caution
July 2015
© 2020 by The National Catholic Bioethics Center

Medicare Funding of Advance Care Planning: The NCBC Raises Caution

July 10, 2015

The federal Centers for Medicare and Medicaid Services (CMS) has issued a call for comment in response to their proposal to reimburse physicians and other qualified professionals for engaging with their patients in advance care planning, including the completion of standard forms such as advance directives—see HERE. The National Catholic Bioethics Center (NCBC) supports the fact that a competent adult should have frequent in-depth conversations with a health care provider and a self-designated health care agent, who agree to respect the well-reasoned health care wishes of that competent adult when unable to communicate such wishes.  For Medicare to facilitate such conversations by providing physicians with a payment mechanism is not contradictory to such a position.  However, there are several cautions that need to be considered, that relate to why this very proposal was removed from the Affordable Care Act (ACA).  In reminding readers of this fact, it is important to state that what was not able to be achieved in law, the federal government is attempting to achieve by regulation.  All regulation must have a foundation in law, and this provision was affirmatively negated by Congress.  Thus, this raises serious concerns about the regulatory process. 

There are a number of other concerns that remain, pertaining to the reimbursement by Medicare for the discussion and completion of standard advanced directive forms, as proposed by CMS.  Most problematic are the “standard forms” that are considered optimal by the federal government.  They all involve a system of forced choices of boxes to check concerning treatment to be withheld (usually) or provided.  In the timeframes proposed by ACA, such planning was to be reviewed and revised every five years.  No one can determine, until faced with the specific health care scenario, the risks and benefits of any treatment, especially the proportionate benefit of antibiotics and hydration and nutrition, years, or even weeks before that dilemma is encountered.  That is why a well-informed health care agent is the optimal choice to navigate such decision-making in the situation encountered.  It is not unusual for a person who has what some label a terminal disease, Alzheimer’s disease, who is not anywhere near end-stage disease, to experience a crisis of dehydration, that merely requires short-term intravenous therapy.  Such a system, of respecting these pre-determined check-off boxes, often is used to justify a passive euthanasia mentality of “letting nature take its course,” thus allowing a person who has months to years to live, to die of dehydration, all for the need of a few days of rehydration.  The same is also heard of for the not-infrequent (with the elderly) bladder infection, allowed to advance to a full blown septicemia, because the person has checked, that if they have a terminal disease, they do not want to be given even an oral antibiotic.

Of great concern is the promotion by the federal government of the POLST form (Physicians Orders for Life Sustaining Treatment), which will be included as a “standard form” of the Medicare-reimbursed forms to be signed.  The problem is that these forms are not just stating the wishes of the patient for when the patient can no longer express them, but are actionable orders of a physician from the moment the physician signs the order.  Many forms do not require the patient or health care agent to sign the form, nor does the patient have to be terminal for these forms to be signed.  Thus, they advance, from the concept of patient expressed wishes, to actionable medical orders that must be honored by all providers and can be signed years ahead of the time the health care dilemma is encountered and which no longer reflect the true situation of the patient.  There are real questions as to the appropriate use of such forms, who has the authority to complete them, who must sign them, who must honor them, and how accurate are they to the true informed consent of the patient. 

Thus, while good conversations must occur between the competent adult and the health care provider to insure true informed consent, and to provide reimbursement for such discussions is a good, what forms will be advocated to be completed at the conclusion of such discussions historically has raised grave concerns as to  whether true informed consent will be violated.  There is a tendency, in the face of 55 million persons seeking reimbursable health care from the federal government, to approach such populations with a rationing of care mentality.  That negates the dignity of all human beings, especially those due to age, disability or infirmity who no longer are able to speak for themselves. 

Another point that must be made is that this has been framed by the media as part of a provision debated during consideration of the ACA, known colloquially as “Death Panels”. That clearly is incorrect. That provision pertained to the Independent Payment Advisory Board (IPAB). The US House of Representatives recently voted to eliminate the IPAB provisions of the ACA, a step praised by the Healthcare Leadership Council, an organization comprised of leaders from all US healthcare sectors, including the NCBC. The NCBC was a signatory to a letter requesting this amendment to the ACA. The IPAB is comprised of Presidential appointees, who are not confirmed by the US Senate, charged with making recommendations to cut Medicare expenditures which will not be subject to administrative or judicial review.  The Senate now is responsible for considering this bill — SeeHERE. However, the very fact that IPAB is opposed so broadly also speaks to the fear of an advancing health care rationing about which we all must be concerned.