Death Panels Dismantled

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In recent days, the “Death Panel” controversy has been revived. At first glance, the idea that the Government is “out to get us” appears to have merit. With talk about “end of life” counseling, the “Federal Coordinating Council for Comparative Effectiveness Research” and the “National Coordinator of Health Information Technology,” many of our fellow conservatives have woven a web of intrigue worthy of James Bond regarding this issue. On the surface it all looks plausible as there is just enough truth there to make you believe. But, like a car that looks great from fifty feet away you must get up close and really do a thorough inspection to see the rust spots, mismatched parts and Bondo. At the core of the revived “Death Panel” scenario are three separate and distinct entities. Proponents of the “Death Panel” theory are basically putting these three entities together like a jigsaw puzzle and making assumptions involving the supposed nefarious purposes of the entities. Let’s examine each in turn and see how, or if, they fit together.

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The first thing we will examine, and the reason for the renewed interest in “Death Panels,” is “end of life” counseling. This is nothing new of course but a provision in the health care bill would have allowed it to be billed by the physician and medicare would have had to pay for it. This caused an uproar when Governor Sarah Palin coined the term “Death Panels” in response to this part of the Obamacare bill. The Democrats, amid much public outcry, responded by removing the “end of life” counseling portion of the bill which enabled it to more neatly fit down our throats as it was passed into law. Now the subject has come up once again as it has been revealed that “end of life” counseling has been added to the Medicare regulations. If you can’t legislate, regulate! It appears that the administration was content to pass anything when it came to health care knowing that they would just bypass congress and rule by fiat through the regulatory process. The author of the “end of life” counseling portion of the Obamacare bill, Oregon Democrat Earl Blumenauer, sent an email to his supporters crowing about their “victory” but also cautioned against telling anyone about it for fear of stirring up the “Death Panel” controversy. The email went on to say that “Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch.” The openness and transparency just brings a tear to my eye. “End of life” counseling allows the patient to make decisions about his or her care prior to the time when the need for care becomes critical and the patient may be in no position to make their own decisions. In and of itself, “end of life” counseling appears to be a good thing.

The next component of the “Death Panel” theory is the “Federal Coordinating Council for Comparative Effectiveness Research.” This council, created by the stimulus law, is tasked with deciding on the efficacy and value of medical treatments and procedures. We could say that this was a sort of “Bang For The Buck” panel. There are 15 members on the council including Dr. Ezekiel J. Emanuel MD Ph.D. Since the council is only as good or as bad as its members, let’s look at Dr. Emanuel since most people have at least heard of him and many people hold a rather negative opinion of him. A column in the New York Post opined that Dr. Emanuel wished to ration care for “a grandmother with Parkinson’s or a child with cerebral palsy.” This doesn’t appear to add up as Dr. Emanuel has a sister who is afflicted with cerebral palsy. Dr. Emanuel is a medical ethicist and an oncologist. This would appear to give him insight into both “end of life” situations and the decisions that need to be made during these times. Dr. Emanuel has devoted much of his life to opposing euthanasia and has worked tirelessly to improve the care afforded to terminally ill patients and in fact has received numerous awards for his work to improve end-of-life care. As a medical ethicist Dr. Emanuel has had to wrestle with issues like who gets a donor heart when there are three people who need one. These are real life issues that most of us are glad we don’t have to deal with, and, unfortunately, criteria have to be set up to decide these things when they arise. The person developing the criteria might just come off looking a bit ghoulish in some cases even when he or she is not. Dr. Emanuel has criticized the medical industry for pushing extreme treatment regimes “regardless of the cost or effects on others” and has been excoriated for it. Unfortunately it is rarely if ever mentioned that he was not speaking about life saving care but rather treatments that have shown little if any positive results.  In our research we could find no evidence that the “Federal Coordinating Council for Comparative Effectiveness Research” is anything other than a group of people trying to determine which medical treatments work best for certain ailments and when two or more treatments show similar effectiveness, which is the most cost effective. In the long run this could have the effect of lowering health care costs as worthless treatments are weeded out and no longer employed. It should also be noted that the law gives no power to this council to dictate policy to insurance companies or medical professionals. The government has been funding comparative effectiveness studies since the 1970’s and as a stand alone item, the “Federal Coordinating Council for Comparative Effectiveness Research” if run properly, could be a very good thing.

The third item we need to look at is the “National Coordinator of Health Information Technology.” The stimulus law calls for funding of the “National Coordinator of Health Information Technology.” While many people have suggested that the stimulus bill created this entity, it did not. This office was actually created by President George W. Bush in 2004 by executive order:

Executive Order 13335, April 27, 2004: In fulfilling its responsibilities, the work of the National Coordinator shall be consistent with a vision of developing a nationwide interoperable health information technology infrastructure that: (a) Ensures that appropriate information to guide medical decisions is available at the time and place of care.

While it has been put forward that the “National Coordinator of Health Information Technology” will monitor treatments to ensure that the physicians are doing what the government approves as appropriate, this appears to be a stretch as the stimulus law has no such language in it. In a nutshell, the goal of the “National Coordinator of Health Information Technology” appears to be to have everyone’s medical records digitized to save costs and coordinate treatments. The law does not require compliance but instead offers incentives to adopt electronic medical record keeping and provides for penalties for those doctors who do not implement electronic medical record keeping. The idea has been put forward that due to the penalties, a doctor would be likely to offer less care to a patient or not tell a patient about available care that might be deemed too expensive. They point to the “meaningful user” language to back up these claims. It looks like they are conflating two separate issues here as the “meaningful user” language simply refers to the electronic record keeping system and not to some arbitrary guidelines for appropriate medical care. Moreover, the penalties are minor starting at 1% off of the physician’s Medicare fee schedule and ending at a maximum of 5%. The bonuses for adopting electronic medical record keeping are generous and most physicians will likely adopt the system. Many conservatives and other observers have stated publicly that electronic medical records are a positive step forward and it is a certainty that we would move in this direction at some time anyway. It certainly looks, once again, like this is simply an attempt to get organized and become more efficient in the way we keep records.

Now for the fun part! We have dissected the various agencies, councils and entities that are the key components to the “Death Panel” controversy. Each on its own appears to be a legitimate, well intentioned program. Could they be put together to form a “Death Panel?” Let’s check and see. We will start at the end. The end of life that is. Imagine you are an 86 year old man and you have chronic pain in your hip. You go to see your Medicare physician and he gives you your “end of life” counseling while discussing your treatment options. The physician determines that you need a hip replacement.

Is he allowed to tell you this? Yes he is. There is nothing in the “end of life” counseling regulation that would prevent him from disclosing this to you.

Is he allowed to provide you with this care? Yes. Even if the “Federal Coordinating Council for Comparative Effectiveness Research” had concluded that it was not cost effective for a person of your age, he could still do the hip replacement because the council has no authority to dictate insurance or medical policies. In fact, the stimulus bill states:

American Recovery and Reinvestment Act of 2009: Nothing in this section shall be construed to permit the Council to mandate coverage, reimbursement, or other policies for any public or private payer. … None of the reports submitted under this section or recommendations made by the Council shall be construed as mandates or clinical guidelines for payment, coverage, or treatment.

Does the “National Coordinator of Health Information Technology” prevent him from providing you with this treatment? No. Even if the physician is found to not be a “meaningful user” of the system it would not prevent him from doing your hip replacement. It simply means he would be reimbursed 1% less for his efforts up to a maximum of 5% depending on how many years he had not been a “meaningful user” of the system.

After carefully researching the issue we have concluded that there are no “Death Panels.” There are facts mixed with assumptions mixed with a dab of internetitis that could lead people to believe there are “Death Panels” but we found no actual evidence of it. Could the aforementioned councils and agencies morph into “Death Panels” at some later date? It’s possible as almost anything can be accomplished through regulation and executive orders but it appears doubtful. The reason it appears doubtful is you. The people in this country are awake and vigilant. A while back, representatives were in utter shock and disbelief that their constituents had actually read bills that they themselves couldn’t be bothered to read. As long as the people are awake and watching, our erstwhile rulers won’t be able to implement anything even approaching a “Death Panel.”

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