Fact checking the death panel scare

One thing I have learned in the culture wars is to check the specifics of breathless claims from both left and right. So here is a claim from the Liberty Counsel that is making its way around the echo chamber:

Medicare Regulations Revive “Death Panels” of ObamaCare Bill

Is this true? Is Medicare about to unleash a panel of Dr. Deaths on the nation’s elderly? Not at all. This Wall Street Journal article has it about right, describing what Medicare is about to implement via their rule making process:

Advance care planning lays out the options and allows patients, in consultation with their providers and family members, to ensure that their future treatment is consistent with their wishes and moral values should they become too sick to decide for themselves.

To their credit, Liberty Counsel links to the Federal Register issue containing the new regulation, but unfortunately then misrepresents what it says. As noted by the WSJ, discussing advanced directives is something patients should do.

Called “voluntary advance care planning” in the Medicare regulation, this new rule allows physicians to be reimbursed for this consultation during the annual wellness visit, a service allowed by Medicare which covers all sorts of preventive care. The service is defined in the Federal Register:

Voluntary advance care planning means, for purposes of this section, verbal or written information regarding the following areas:

(i) An individual’s ability to prepare an advance directive in the case where an injury or illness causes the individual to be unable to make health care decisions.

(ii) Whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive. (p. 73406 & 73614).

No death panel there; just the patient, perhaps family, and the physician. Since the conversation is voluntary, a patient can avoid the whole thing. Physicians are allowed to provide written information about how to construct an advanced directive and what individual physicians will do under certain conditions. Physicians must provide informed consent to care and letting patients know what they will do is good practice. If a patient doesn’t like the approach of that doctor, then another doctor can be pursued. I like this approach much better than just waiting around for something to happen and then trying to figure out what the patient would have wanted.

These are important and necessary conversations, even though they can be emotionally difficult. The Federal Register cites studies which suggest that patients appreciate the opportunity to express their wishes and are not harmed by doing so.  

Back to the current flap. Where WSJ gets a little misty is when they let Sarah Palin and by extension other fear mongers off the hook a bit by saying that Palin really wants to talk about rationing of care when she writes about “death panels” (as she does here – note the title of the column).

Now I have a whole page on this blog devoted to debunking myths about Sarah Palin so I think it is fair to comment when she is stretching things. If you want to talk about rationing of care, then talk about rationing of care. Voluntarily discussing advanced directives with a personal physician is not a “death panel” nor is it of necessity rationing of care.

Lifenews.com is running a headline claiming that pro-life leaders want the new Congress to overturn the regulation. I am pro-life and I hope the new Congress does not overturn the regulation. I believe physicians should be reimbursed for bringing up the difficult topic and making adequate preparations for the inevitable. Conversations about end-of-life care will happen with or without the regulation. The question is: Will they happen with the patient’s wishes known or not?

UPDATE: Here are some Christian and pro-life groups which advocate advance directives. All the Medicare regulation does is include such planning in annual wellness visits if the patient agrees. Medicare patients could use any of these resources in conversation with their physicians.

Focus on the Family

Anglicans for Life

Physicians for Life 

National Right to Life

Aquinas Institute

Center for Bioethics and Human Dignity

This list was generated after about 5 minutes of searching. I suspect there are other groups with similar recommendations. There is nothing in the Medicare regulations which requires patients to accept a physician’s views if at odds with the patient’s views (although some state laws may allow a physician to ignore advanced directives). Nothing I can find in the Medicare regulation prohibits a patient from drawing on faith based resources to inform these conversations.

Added on Jan 3, 2011: I think it is important to note the voluntary element of these conversations from the Medicare regulations. Advanced care planning may be conducted at the initial Medicare visit and at the annual wellness visit, if the patient agrees. Here is how the Medicare regulation includes the procedure in these visits:

Voluntary advance care planning as that term is defined in this section upon agreement with the individual.