Friday, July 31, 2009

The Great Divide

I found this Joan Walsh article via Reclusive Leftist who doesn’t think much of it, although for very different reasons than mine. I do think one of Walsh’s argument is worth examining:

There is one main reason the U.S. doesn't have the social democratic traditions and programs enjoyed by most Western democracies -- we are the only such nation without some kind of universal healthcare -- and that reason is our history of ethnic, racial and class strife. (The bounty of the eternal frontier and American exceptionalism fit in there too, but I'd pick our fractious and well-manipulated heterogeneity as the top reason.)

The history of the 19th century and early 20th century is the history of labor and political coalitions splintered by divisions between Northern Europeans and Southern Europeans, between middle-class Germans and less well off German Jews, between the Irish and everyone else, and, increasingly after blacks won something akin to freedom, between all white ethnic groups and African-Americans. Latinos and Asians came with their own demands and baggage and relations got more complicated still. Barriers of language, culture, class and skin color thwarted many efforts to grow labor unions and build a social-democratic majority.

This is The Great Divide in American politics today. Not that some people think we should have “social democratic traditions and programs” like universal health care and some think we shouldn’t. No, The Great Divide is that some people think the fact that we do not have such traditions and program is, ipso facto, a failure. Walsh clearly believes that if we were a normal nation, a healthy nation, a decent nation, we would have been able “to grow labor unions and build a social-democratic majority.” To her, the fact that our history prevented us from doing so is a tragedy.

On the other side are people who think our lack of social democracy is a largely desirable result of our unique history and a vital source of our strength. I come down primarily on this side. I have never understood either Americans or foreigners who admire, respect, envy, desire, or seek to make use of America’s wealth, America’s power, and America’s products while simultaneously decrying the shape of our social structures; our lack of full government involvement in all good things from art to daycare; and our messy, contentious, and often unkind intersection of government, politics, morality, religion, economic interests, ethnic groups, racial groups, economic groups, high-minded ideals, personal ambition, straightforward greed, and astonishing generosity. It seems never to have occurred to them that it is the very characteristics they disdain that have created the money, might, and merchandise they seek to emulate, own, profit from, or employ for their own purposes.

Thursday, July 30, 2009

It's like dealing with a 3-year-old

For some reason, BlogSpot is being very cranky. First, the little search box in the upper left hand corner doesn’t always work. Ask it to search for Obama, for example, and it insists it can’t find a single post in my entire blog with that word in it. I’ve read something that suggests it may just hate really long posts; if so it’s never going to find anything ever again on this blog. So if you want to search for something, try a search engine that lets you specify a domain name. (I also think I’m going to have to clean up my categories because they’re not very helpful even for me any more. I’ll get to that someday.)

Second, it faithfully emails me every time I enter a comment but when other people enter comments it sometimes emails me and sometimes doesn’t. Despite rumors of BlogSpot’s political ideology, I have not seen any pattern to this so I’m assuming it’s just general crankiness. I've checked all the posts on my blog for comments and I think I've seen them all.

A different kind of innovation

One of the worries about the House health care bill (HR3200) and possibly about the other health care bills on the table is that by greatly enlarging the government’s role in health care and focusing on cost-cutting to the exclusion of improvement, the bill will greatly slow the pace of medical innovation coming out of the United States. And, since we are the engine that drives most medical innovation, this will mean such innovation will decline globally. I wrote about that here and others across the blogosphere have written about it as well.

There’s another kind of innovation that will almost certainly be curtailed by HR3200: innovations in insurance policies. As far as I can tell, the bill establishes four levels of polices that can be offered via “the Exchange”. Policies in each of those levels must meet certain requirements. It’s possible there will be room to innovate within those requirements but I fear there will not.

What do I mean by innovations in insurance policies? Here’s an example. I live in New Jersey. New Jersey is a very friendly State in terms of being able to obtain health insurance although not friendly at all in terms of being able to afford it. I’ve been buying my own health insurance for about 7 years and it costs me a fortune. At the beginning of this year, my insurance carrier, Blue Cross Blue Shield, started offering a new line of policies. I now have a flat copay for doctors’ visits rather than “they bill the insurance company then bill me for the residue”; my deductible is higher out of network than in; and prescriptions are paid 50-50 rather than 70-30 plus I have neither a deductible to meet first before the 50-50 kicks in nor a maximum after which the insurance company pays 100%. This policy costs me slightly less than half of what my old policy cost me.

How can they do this? I don’t know. I assume they ran the numbers and discovered they would add up. If I took a lot of prescription medications it probably wouldn’t be a good deal for me but since I don’t, it’s great. I bet it’s even great for my doctors since now I pay them up front: they never have to bill me and they never have to dun patients who don’t pay.

So one question I’d like answered is: How likely are we to get this type of policy innovation once “the Exchange” is up and running?

Him, himself, and he

I had hoped we were done with the whole Obama birth certificate thing but if the National Review is writing about it again, I guess my hopes are dashed. I’ve written about this twice before. I believe Obama was born in Hawaii and was therefore a citizen of the United States at birth - and I can’t imagine a better definition of “natural-born citizen” than that. I believe the desire on the part of some to deny that he is a United States citizen has less to do with racism and more to do with Obama’s exotic background, a sort of ramped up version of the “internationalist” insult hurled at many recent Democratic Presidential candidates.

At the same time, however, I do not think the people who are convinced there’s something suspicious going on are idiots or lunatics for one simple reason: the birth certificate Obama has produced does not look like the birth certificates we’re all used to seeing. Obama has produced a “Certification Of Live Birth” (hereinafter COLB) which I’m perfectly prepared to believe is real, legal, and accurate. Obama’s COLB lists (Birth certificate photo 5 is the clearest view):

Child’s Name
Date of Birth; Hour of Birth; Sex
City, Town or Location of Birth; Island of Birth; County of Birth
Mother’s Maiden Name; Mother’s Race
Father’s Name; Father’s Race
Date Filed by Registrar

All well and good. But - despite endless explanations that this is all the information legally required to, for example, get a passport - the simple fact is that a COLB is missing a lot of the information on my birth certificate, on a Hawaiian birth certificate of that era, and - apparently - on the birth certificates most people have stuck in a drawer somewhere.

Someone has graciously put up an image of his Hawaii “Certificate of Live Birth” from 1963, just a couple of years after Obama was born. I’m going to refer to this as an “Original Birth Certificate”. (This is what people mean when they ask about Obama’s “long-form” birth certificate.) If we compare Obama’s COLB to this 1963 Original Birth Certificate, we see that Obama’s COLB omits the following information:

Was this birth Single, Twin, Triplet
If Twin or Triplet was child born 1st, 2nd, 3rd
Name of Hospital or Institution; Is Place of Birth Inside City or Town Limits? If no, give judicial district.

Mother’s Address Information:
Usual Residence of Mother: City, Town, or Rural Location; Island; County and State or Foreign Country
Street Address; Is Residence Inside City or Town Limits? If no, give judicial district
Mother’s Mailing Address; Is Residence on a Farm of Plantation?

Father’s Information:
Age of Father; Birthplace; Usual Occupation; Kind of Business or Industry

Mother’s Information:
Age of Mother: Birthplace; Type of Occupation Outside Home During Pregnancy; Date Last Worked

Signature of Parent or Other Informant; Check Parent or Other; Date of Signature
Signature of Attendant; Check MD, DO, Midwife, Other: Date of Signature
Date Accepted by Local Reg; Signature of Local Registrar; Date Accepted by Reg. General

Questions about the missing information percolated up last summer after the Obama campaign originally released Obama’s COLB. They quieted down partly because a COLB was the only document Hawaii currently provided to anyone and then quieted even more when rumors started circulating that Obama’s Original Birth Certificate had been destroyed. I can’t figure out where this rumor started. The FactCheck article I just linked states that the Hawaii health department still held Obama’s Original Birth Certificate so why people would believe it had been destroyed is beyond me. Perhaps the idea that the COLB was all that was available somehow mutated into the idea that nothing else existed.

Wherever the rumor started, it made everybody happy. Those convinced there was something to the whole birth certificate issue could claim this was more evidence of a cover-up. Those convinced the controversy was nonsense could point out that Hawaii transferred its data to electronic format in 2001 and everyone’s Original Birth Certificate was destroyed.

Certainly John Klein, President of CNN/US, bought the story. On June 23, 2009, Klein sent an email to staffers at “Lou Dobbs Tonight” explaining that the story about Obama’s birth certificate was dead:

Klein asked CNN researchers to dig into the question of why Obama couldn't produce the original birth certificate. The researchers contacted the Hawaii Health Dept. and confirmed that paper documents were discarded in 2001 when the department went paperless. That reportedly includes Pres. Obama's original birth certificate.

Oops! Time for some new researchers. By June 27, Hawaii had said otherwise. Hawaii’s health director issued another statement saying exactly what she’d said during the campaign:

"I, Dr. Chiyome Fukino, director of the Hawaii State Department of Health, have seen the original vital records maintained on file by the Hawaii State Department of Health verifying Barack Hussein Obama was born in Hawaii and is a natural-born American citizen. I have nothing further to add to this statement or my original statement issued in October 2008 over eight months ago...."

In case that still wasn’t clear enough:

In 2001, Hawaii's paper documents were reproduced in electronic format, but "any paper data prior to that still exists," Health Department spokeswoman Janice Okubo said.

Okubo would not say where Obama's original birth certificate is but said, "We have backups for all of our backups."

As I said, this is not new. But now for some reason - perhaps because Obama is not quite so popular as he used to be - the information registered. Suddenly people realize that the Obama Original Birth Certificate, with all that missing information, still exists and want to know why they can’t see it. I can think of three possibilities.

One is that the State of Hawaii simply refuses to release a copy of the Original Birth Certificate. I suppose that’s possible but I consider it unlikely. Surely if the President of the United States asked very nicely for a copy they would accommodate him. Even if they wouldn’t just for him there must be some mechanism for seeing that data. If there isn’t every genealogy buff who has an ancestor from Hawaii is going to be mighty upset.

The second possibility is that the State of Hawaii would be happy to give Obama a copy of his Original Birth Certificate (or Obama may already have one) and there’s nothing interesting about the missing information but Obama would rather keep the controversy going, figuring it tars all his opponents with the crazy brush. Possible but dangerous. The controversy is very slowly changing from being about where Obama was born to being about why he doesn’t just show us the stupid Original Birth Certificate and let us all get back to talking about the economy. When even Obama’s most slavish admirer is starting to wonder, it’s time to come clean.

The third possibility is that there’s no problem producing the Original Birth Certificate but there’s something in that additional information Obama does not want us to see. We can speculate endlessly but I have two theories.

First, maybe Obama is adopted. I have to give White House spokesman Robert Gibbs credit for this one. If he hadn’t suggested DNA as a possible piece of evidence to quell the controversy, I would never have thought of it. Since I only read about his suggestion last night I haven’t had time to flesh out the details. I leave that as an exercise for the reader.

Second - and this one is all mine - Obama is triplets. I mean, really, think about it. It explains so much. Even his most slavish admirer noted that:

... [Obama’s] a surprisingly uneven campaigner.

A soaring rhetorical flourish one day is undercut by a lackluster debate performance the next.

People remarked on this phenomenon throughout the campaign and eventually settled on the explanation that he was lost without his teleprompter. Maybe so. But it would make just as much sense to theorize there were two Barack Obamas campaigning. Not only would that explain why his performance was so uneven but it would also explain so much more.

It would explain why he didn’t know what the Reverend Wright had said and how he could be unaware of Bill Ayers and Bernardine Dohrn’s past history despite living in Chicago all those years. It would explain why he seems to genuinely adore his wife and daughters yet used misogyny so well in his campaign against Hillary Clinton. It would even explain those slips like “spreading the wealth” and the whole bitter-cling thing. Sometimes we were seeing the Barack Obama we knew about: Hawaii, Indonesia, Columbia, Harvard, community organizer, Constitutional law professor, devoted husband and father, rising politician. Sometimes we were seeing a second Obama who had grown up somewhere else - maybe Kansas - and didn’t have that history.

Fine, you say, I’ll buy twins. But why triplets? It’s obvious there must have been a third one. He’s the one they turned the war on terrorism over to once they were elected. He’s the one who’s doing everything George Bush did instead of everything Obama One and Obama Two promised on the campaign trail. He’s also probably the one interfering in Honduras. No Constitutional scholar would do that, right?

It’s a little shocking at first, I know, but think of the advantages. Obama said he was worn out his first few weeks in office; being able to bring in Obama Three obviously helped with that. Also for years people have said the job of the Presidency is too big for one man; no need to worry about that any more. Plus with three of them around, one can be constantly giving speeches and press conferences, taking junkets, being on TV while the others stay at the White House and actually get something done. It’s working out great for all of us.

So there you are. Mystery solved. Triplets. And I’m absolutely certain all three of them are natural born citizens.

Krauthammer and 1233

I respect Charles Krauthammer, almost always enjoy what he has to say, and usually learn something from him. I certainly enjoyed the beginning of his recent comments on Section 1233 of HR3200, the House health care bill (emphasis mine):

But on the larger issue here having to deal with end-of-life care, I looked at the language [in the House bill]. There is no requirement that you be counseled, because it would be inherently coercive. If you're dying and a government official shows up and says I want to discuss options including your death, that obviously is going to be kind of a coercion.

Yes! He got it right.

However the rest of his comments had me scratching my head:

But the idea that it is important to do it [end-of-life counseling] years in advance is nonsense. We heard Senator Grassley say this stuff ought to be decided when you're 50 and not when you're 80. What doctor, when he has an 80-year-old with pneumonia, will look at a document signed 30 years earlier and say he [the patient] decided he didn't want to have extra treatment, so I'll pull the plug?

I haven’t heard or read the original Grassley comment so for all I know Grassley really is a fool who thinks people should make up their minds about end of life care at 50 and never change them. Section 1233, though, will pay for patients to review their advance care planning decisions every five years if they wish and will also pay for them to review those decisions if something medically significant changes.

Krauthammer goes on:

The idea of advanced directives (as it is called in the [medical] lingo) or living wills are determinative, is absolutely false. It almost never applies. It only [applies] if you are in a coma or demented, and even in those cases, it's the wishes of the family which almost always override everything in writing.

My first thought was, “What about cases like Terri Schiavo?” Sure enough, Krauthammer had written about the Schiavo case. His March 2005 article began (emphasis mine):

If I were in Terri Schiavo's condition, I would not want a feeding tube. But Schiavo does not have the means to make her intentions known. We do not know what she would have wanted. We have nothing to go on. No living will, no advance directives, no durable power of attorney.

I wonder if anyone would have heard about the Terri Schiavo case if she had prepared a living will or better yet an Order for Life-Sustaining Treatment that stated clearly she absolutely wanted a long-term feeding tube and long-term IV hydration - or absolutely did not.

Wednesday, July 29, 2009

Taking health care personally

I saw my orthopedist yesterday about an ongoing problem - one of those things that will have to be dealt with surgically eventually. The last time I saw him was last December and normally I wouldn’t have seen him again for a year but I took a nasty fall and things didn’t feel quite right. Whether because of the fall or just due to the natural progression of things, we're at the point where he thinks we should do the surgery so we had our usual talk about it. In the seven months since we last spoke two new procedures have proven to be effective - one addressing the problem itself, one addressing pain management.

As I listened to him explain the procedures, I had three thoughts. First, my chances of doing well after surgery have increased. Second, this is why medical care is getting more and more expensive. And, third, I’m afraid this type of improvement will be far less likely if the government runs health care.

Monday, July 27, 2009

Now I can sleep

[I have more to say about Section 1233 of HR3200 and am doing so in a series of (probably) four posts. This is the fourth in the series and I believe it is the last. The first post in the series is here. I highly recommend reading the Jane Galt article linked here before reading this series.

All the posts in the series will be filed under the category “Me And 1233”.

When I began this second look at Section 1233 I anticipated I would end by saying I stood by my original point - that Section 1233 did not require end of life counseling but that I could certainly see why people would consider it a slippery slope, provide incentives, etc. In other words, Section 1233 made me nervous. It no longer makes me nervous. Here’s what changed my mind.

While researching my previous post in this series I learned about Orders for Life Sustaining Treatment (OLST), also called POLST (Physicians OLST) or MOLST (Medical OLST). This is an attempt to make end of life directives more specific and more standard. Rather than just saying “No extreme measures” or “All measures available”, MOLST ask a series of questions about whether the person filling out the form wants CPR or not; wants no IV fluids, short-term IV fluids, or long-term IV fluids; and so on. The questions that appear on MOLST are the very questions Section 1233 suggests be included in any end of life counseling section.

Once I read about MOLST, looked at some of the forms, and understood that Section 1233’s suggestions were part of an attempt to improve end of life care, I looked at Section 1233 more favorably. Then three other pieces of information solidified my favorable impression.

First, MaxedOutMama herself. She said:

We are rapidly approaching the point at which a certain measures, including tube feeding and liquids, are going to be routinely denied to many elderly persons deemed to be close to the end of their lives.

A MOLST can just as easily prevent that as it can cause it. Without a MOLST the patient is at the mercy of whoever has his hand on the off switch. With a MOLST that specifies a patient wants all possible treatment, that person has to think twice about hitting that switch.

Second, the House Republican leadership’s statement on Section 1233. This statement did not claim that 1233 required end of life counseling but - by tying it to a 1977 memo on living wills as money savers - was able to suggest convincingly that:

This provision may start us down a treacherous path toward government-encouraged euthanasia if enacted into law.

I thought this statement was tactically brilliant and told my husband so. He disagreed strongly. Making people afraid of end of life counseling is far from brilliant, he pointed out. End of life counseling, advance planning, a clear statement of what each of us wants is crucial, he said, because we are rapidly approaching the time when medical technology will be able to keep almost anyone in almost any condition alive almost indefinitely - so we’d all better speak up and say whether that’s what we want.

What MaxedOutMama fears - over-fast plug pulling - and what my husband fears - lingering in a sort of living death - have the same cure: informed choice, as specific as possible, on the part of the each of us.

Finally, I found HR 1898: Life Sustaining Treatment Preferences Act of 2009. This bill was introduced on April 2, 2009, and when I read it I realized this was the basis for Section 1233 - large parts of it are word-for-word. It is clearly an attempt to require Medicare to pay for the creation of MOLST; the sponsor’s remarks in the Congressional Record show that. The bill has two Republican co-sponsors including Representative Charles Boustany Jr., (R., La.), a heart surgeon quoted approvingly by Betsy McCaughey. When I read that bill and asked myself if I would have any objection to it if I’d run across it with no preconceived notions, I realized I would not.

I think someone of any age sitting down and figuring out what he or she wants in terms of end of life care is a good idea. I think a MOLST is a good idea. The elderly in this country by and large get the medical services Medicare is willing to pay for. If they are going to get the help they need to develop a valid end of life plan - preferably including a MOLST - Medicare is going to have to pay for it. I no longer consider offering this much-needed medical service to those on Medicare a slippery slope, an incentive to limit care, or anything other than a good idea.

As for whether this good idea is going to save any money, the government may be in for a shock there.

This study by two medical ethicists is more than 10 years old but unless things have changed drastically, it both points out why we need more and more specific end of life planning and explains why it probably won’t save any money:

This study does not support the assumption that, collectively, patients' advance care preferences are less interventionist than actual practices for patients in corresponding scenarios. Nevertheless, these results do support the assumption that life-sustaining treatment decisions do not conform well to individual patients' specific preferences. Progress in end-of-life care should focus on shared decision making at the patient-proxy-physician level rather than on overall life-sustaining treatments utilization.

In other words, some patients who want less end of life treatment are getting more while some patients who want more end of life treatment are getting less. Better advance care planning - MOLST especially - can help straighten out that problem but it’s not likely to save us any money.

Does this mean I support HR3200? Heavens, no. If nothing else the fact that no two people can agree on what the bill says - much less what it means - should make it awfully clear that we don’t understand what this bill will do. Furthermore, to the extent that I do understand it, it seems to me an overly expensive, unnecessarily complicated, and not especially effective means of accomplishing what I consider the appropriate goal: insuring the uninsured. I am not, however, going to lose any sleep worrying about Section 1233.

You claim that mish-mash is a defense?

[I have more to say about Section 1233 of HR3200 and am doing so in a series of (probably) four posts. This is the third in the series; the first is here. I highly recommend reading the Jane Galt article linked here before reading this series.

All the posts in the series will be filed under the category “Me And 1233”.

In my previous post in this series, I recounted my dismay that MaxedOutMama did not find my analysis of Section 1233 of the House health care bill helpful and explained why she missed my point when she claimed I missed “the” point. In this post, I review MaxedOutMama’s reading of HR1233 and the inferences she draws from it.

Before I begin, let me say I am very much aware I am falling into exactly the trap Grim described so well:

The one thing that could undermine the Right's position would be to admit they were wrong, which would indeed undercut their credibility. The most successful rhetoric will, instead, answer every such defense with a new charge: 'So you claim that mish-mash is a defense? Well, then explain how in section 12, you call for taxpayers to pay for lawyers to write living wills for the elderly.'

There’s a limit to how much of this I’m willing to do but going through this again has been a positive experience for me. As I’ll describe below, I learned about OLST and that changed my mind about the value of Section 1233. So for this iteration, at least, a good deed has been its own reward.

The bill I am discussing is HR3200 (aka the House health care bill, aka TriComm; aka American Affordable Health Choice Act; aka AAHCA). The particular Section I am concerned with is Section 1233 which has three sub-sections. Here’s where that Section and its sub-sections are located in HR3200:

Division B - Medicare and Medicaid Improvements
...Title II - Medicare Beneficiary Improvements
......Subtitle C - Miscellaneous Improvements
.........Section 1233 Advance Care Planning Consultation
............(a) Medicare
............(b) Expansion of Physician Quality Reporting Initiative for End of Life Care
............(c) Inclusion of Information in Medicare & You Handbook

For the purposes of this post I will use the version of the bill MaxedOutMama links to in a later post. Her link downloads a pdf which is a nicely formatted copy of the bill and has clear page and line numbers which I will use for reference. Section 1233 can be found on pages 424-434.

We will also be visiting our old friend, Section 1861 of the Social Security Act which can be found here but does not have line numbers. Okay, all set.

MaxedOutMama says (emphasis mine):

The change to the law about the Medicare-covered consultation about end of life care (begins on page 425)

She then quotes the elements which must be included in “an explanation of orders regarding life sustaining treatment or similar orders”: why such orders are beneficial and why they should be updated either periodically or as a result of health changes; information necessary to make informed decisions about such orders; and information on how to find out what State law is so any such orders will be legal. MaxedOutMama then says (emphasis mine):

This adds a requirement to the existing schedule of paid-for services. In order to get paid by Medicare, the physician must include a blurb about DNRs and the like. This is an essential change to the law.

Sort of, sort of not. I assume that when MaxedOutMama cites “the existing schedule” she is referring to Section 1861 of the Social Security Act which specifies that Medicare will pay for:

(W) an initial preventive physical examination

and defines that exam as:

The term “initial preventive physical examination” means physicians’services consisting of a physical examination (including measurement of height, [snip] and end-of-life planning (as defined in paragraph (3))[note that end of life planning was not included in an examination until January 1, 2009]


the term “end-of-life planning” means verbal or written information regarding-

(A) an individual’s ability to prepare an advance directive in the case that an injury or illness causes the individual to be unable to make health care decisions; and

(B) whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive.

HR3200 does not change a physician’s ability to discuss end of life planning with a patient as part of an “initial preventive physical examination” and be paid for the examination. What HR3200 does is require Medicare to pay if a patient wants to see a “practitioner” for a stand-alone end of life consolation. It is not “[adding] a requirement to the existing schedule of paid-for services”. It is adding a new paid-for service to the existing schedule.

It is true that (depending on the State) the new paid-for stand-alone end of life consultation has more requirements than those imposed on an end of life consultation that takes place as part of an “initial preventive physical examination”. However patients and physicians can still do the same end of life consultation as part of their physical exam that they have been doing for the past 7+ months and the physicians will be paid for them as they always have been.

MaxedOutMama then states:

the provider to be following what is, essentially, a set script representing the interests of such entities such as the state health authorities, hospice association, etc. Thus, for example, the materials which have been developed by say, Catholic medical associations will NOT be part of this required counseling.

I’m not at all sure this last sentence is the case. The entities (“stakeholders”) include (page 428 lines 5ff):

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.

There are Catholic emergency departments and presumably there are Catholic hospitals in state hospital associations and state hospice associations and there are also probably Catholic home health services in home health associations.

MaxedOutMama goes on to say:

Interestingly, a nurse practicioner or physician's assistant is a qualified provider under this clause.

I’m not sure whether she thinks this is a good thing, a bad thing, or a neutral thing. I consider it neutral leaning toward good. Section 1233 is careful to specify (page 428, lines 17ff) (emphasis mine):

(B) a nurse practitioner or physician’s assistance who has the authority under State law to sign orders for life sustaining treatments.

That is, if the State has decided that someone other than a physician can sign “orders for life sustaining treatments” (which I discuss below), then Medicare will pay the bill if they are the ones providing the end of life consultation. This seems eminently reasonable: if someone can sign such an order they had better understand it well enough to explain it.

MaxedOutMama also states:

And here we discover that physicians, nurses, PAs and so forth will be paid under this clause for signing a DNR order or another similar order restricting treatment

and then quotes (5)(A) (page 429, lines 13ff) which is simply a definition of what is meant by “order regarding life sustaining treatment”. On the same page beginning at line 10 is (4) which says (emphasis mine):

”(4) A consultation under this subsection may include the formulation of an order regarding life sustaining treatment or a similar order.

The practitioner is not being paid for producing a DNR order; he is being paid for the consultation which may - or may not - produce “an order regarding life sustaining treatment”. Equally important it is inaccurate to characterize “an order regarding life sustaining treatment” as "restricting treatment". The whole point of such an order is to allow the patient the opportunity to specify exactly how much treatment he wants. Such an order includes the option to specify he wants all possible treatment.

An “order regarding life-sustaining treatment” has a specific meaning in end of life care. It is referred to as an OLST, POSLT (Physicians OLST), or MOLST (Medical OLST), and is designed to provide greater precision than an advance directive. Rather than simply saying, for example, “No extreme measures”, an OLST asks specific questions. You can see a number of sample POLST here. The form is usually a very bright color so it cannot be missed. It asks patients to choose what they want in a number of specific care areas.

Look at the care areas listed in Section 1233 on page 430, lines 11ff. These are the areas that “may” be included in an OLST. Compare this to one of the sample POLST. (I’m using West Virginia for the wording.) You’ll see that the care areas in Section 1233 echo the questions on the POLST.

Section 1233:(i) the intensity of medical intervention if the patient is pulse less, apneic, or has serious cardiac or pulmonary problems;
POLST: Person has no pulse and is not breathing.
- Resuscitate/CPR
- Do Not Attempt Resuscitation (DNR/no CPR)

Section 1233: (ii) the individual’s desire regarding transfer to a hospital or remaining at the current care setting;
POLST: Medical interventions
- Do not transfer to hospital for life-sustaining treatment. Transfer only if comfort needs cannot be met in current location.
- Transfer to hospital if indicated. Avoid intensive care.
- Transfer to hospital if indicated. Include intensive care.

Section 1233: (iii) the use of antibiotics;
POLST: Antibiotics
- Antibiotics
- No antibiotics*

Section 1233: (iv) the use of artificially administered nutrition and hydration.
POLST: Medically administered fluids and nutrition
- No IV fluids
- IV fluids for a defined trial period
- IV fluids long-term if indicated

- No feeding tube
- Feeding tube for a defined trial period
- Feeding tube long-term

It’s clear that the considerations that might go into an OLST are not something developed for HR3200. They represent an ongoing attempt in end of life care to make sure patients’ specific wishes are known and followed.

MaxedOutMama also says:

This section should be read in tandem with the measures for measuring end-of-life treatment quality and of developing patient aids for education.

I assume the measure “ for measuring end-of-life treatment quality” is contained in sub-section (b) entitled “Expansion of Physician Quality Reporting Initiative for End of Life Care”. I am unable to find anything particularly sinister in this sub-section. It’s trying to get the Secretary of HHS to determine how well the new Medicare benefit is being used and does not appear substantially different from the quality reporting required by Medicare in general. Of course, I have no idea how this can happen. Medicare can report how many end of life consultations it has paid for but it has no way to determine the outcome of any of those consultations. As I pointed out in my original post, part of what the Secretary is supposed to be tracking is “adherence to orders for life-sustaining treatment”. That much, at least, sounds like a good thing to me although I don’t know how it can be done with any accuracy.

(I am not sure about this - and am not willing to spend the time to research it - but I believe that at some point a law was based or a regulation promulgated that required all Federal expenditures have some effectiveness measures associated with them. Can anyone confirm or refute my memory of this?)

The measure “of developing patient aids for education” probably refers to sub-section (c) entitled “Inclusion of Information in Medicare & You Handbook”. This requires that the Medicare handbook be updated with 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.

It also requires that the Medicare handbook be updated with “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 seq.);

(II) website links or addresses for State-specific advance directive forms; and

(III) any additional information, as determined by the Secretary.

Paragraph (c)(1)(B) requires that this information be included in all online and paper versions of the Medicare handbook published on or after 1 year after the bill is enacted.

There is very little new in this. You can download a pdf of the handbook “Medicare and You” here. It already contains Section 5 called “Planning Ahead” (page 99 of the handbook):

Section 5 includes information about the following:
Learn How to Compare the Quality of Plans and Providers
Learn About Electronic and Personal Health Records
Plan for Long-Term Care
Have Your Voice Heard Through Advance Directives (like a living will)

The information on “Have Your Voice Heard Through Advance Directives” says (page 105 of the handbook):

Advance directives are legal documents that allow you to put in writing what kind of health care you would want if you were too ill to speak for yourself. Advance directives most often include the following:

- A living will
- A health care proxy (durable power of attorney)
- After-death wishes

Talking to your family, friends, and health care providers about your wishes is important, but these legal documents ensure your wishes are followed. It’s better to think about these important decisions before you are ill or a crisis strikes.

A living will states which medical treatment you would accept or refuse if your life is threatened. Dialysis for kidney failure, a breathing machine if you can’t breathe on your own, CPR (cardiopulmonary resuscitation) if your heart and breathing stop, or tube feeding if you can no longer eat are examples of medical treatment you can choose to accept or refuse.

A health care proxy (sometimes called a durable power of attorney for health care) is another way to make sure your voice is heard.

As you can see, the Medicare and You handbook already includes information on three of the four items Section 1233 requires: living wills; durable powers of attorney; and health care proxies. The only thing new here is information about OLST.

The addition of resources that can help with advance planning is sort of new, sort of not. The Medicare Website already provides external links that guide those on Medicare to sites which recommend advance planning, such as AARP and the Administration On Aging. The requirement in Section 1233 will make these resources more extensive and more standardized.

And that’s the end of my review of MaxedOutMama’s reading of Section 1233.

MaxedOutMama also discusses Accountable Care Organizations in the same post; I do not know if she is tying those into Section 1233 or not. I assume not because I don’t see the relevance. If the argument is that Accountable Care Organizations are going to result in doctors withholding care from the elderly in order to save money then either advance planning is irrelevant - because care will be withheld regardless of the patient’s wishes - or it is crucial - because it will make it legally difficult for care to be withheld.

Similarly one of the commenters on my original “Cry wolf” post said:

And you didn't even mention a bit linked to this provision (not directly) The Cost Effectiveness Board (or whatever they call it).

It doesn't matter what is in your living will. If they decide you are not a producer they are going to let you die or give you a hospice cocktail to speed things along.

I think the commenter is conflating comparative effectiveness research, cost effectiveness analysis, and QALY. (He’s not the only one.) These topics and their interrelationship are beyond the scope of this post. However the commenter has responded to his own accusation: if the government decides to start killing people who are not producers, it doesn’t matter what a patient’s advance directive says.

In other words, ACOs, comparative effective research, cost effectiveness analysis, and QALY tell us nothing about Section 1322.

Learning about OLST was an eye-opener for me: I had no idea they existed. It was one of a series of incidents that changed my emotional reaction to HR1233 in ways I’ll describe in the next post in this series.


*People instinctively recoil at the idea of a patient not receiving antibiotics but there are cases where it may be the most humane course of action. A good example is this case where a man who is going to die of cancer sees pneumonia as his best hope for a peaceful exit. He is an excellent argument for having an OLST because his fear - not addressed by the advisor - is that he “may deliberately be left to become dehydrated”. An OLST could specify that he does want IV fluids long-term but does not want antibiotics.



If you’re interested in comparative effectiveness research, Megan McArdle is very accessible on the topic. You can read this for a general overview and this for a very personal view.

You can read an extremely uncomplimentary post about Britain and QALY at Junkfood Science.

Speaking in tongues

[I have more to say about Section 1233 of HR3200 and will be doing so in a series of (probably) four posts. This is the second in the series; the first is here. I highly recommend reading the Jane Galt article linked here before reading this series.

All the posts in the series will be filed under the category “Me And 1233”.

I am a frequent reader and almost never commenter at MaxedOutMama’s website. Having read that she was slogging through HR3200 (aka the House health care bill, aka TriComm; aka American Affordable Health Choice Act; aka AAHCA) I emailed her on July 22 letting her know I had deciphered Section 1233 of this bill and expressing the hope that if she hadn’t yet completed that section my analysis could save her some eyestrain. I pointed her to my “Cry wolf” post, also noting that one of my commenters said he was a lawyer and was providing some analysis in the comments which she might find useful.

I did not hear back from MaxedOutMama and have no idea if she read my email. Still I had hoped to be of assistance so you can imagine my dismay when I read on her blog that, alas, she did not find my analysis at all helpful:

Firebrand's work is admirable, but she completely missed the point about what is required under the legislation and therefore the effect.

I disagree. The point that MaxedOutMama believes I missed is not the point I was making. MaxedOutMama’s point is:

So there is an incentive in place. This section should be read in tandem with the measures for measuring end-of-life treatment quality and of developing patient aids for education. Basically this whole section is created to try to get people to set advance directives, which usually do limit care.

I did not miss that point nor did I argue against it. It simply was not my point. (I’m beginning to feel like I’m speaking in tongues over here.) My point was:

A number of those who oppose HR3200 claim that Section 1233 compels Medicare patients to receive end of life counseling. That claim is untrue.

I wasn’t writing about incentives, trying, and usually; I was writing about fact versus fiction, accuracy versus inaccuracy, truth versus falsehood. Different point.

It’s clear from some of the comments to my original post that a significant number of people do not consider “factual accurateness” particularly important. (It’s a charming delusion of the Right that all those people reside on the Left.) If these people - let’s call them conservative post-modernists or CoPoMos for short - are certain that Section 1233 is intended to curtail treatment for the elderly then a consideration of what the Section actually says - its plain textual meaning - is simply irrelevant. Anyone who would write an entire post on what the language actually says must be “young”, “dense”, “obtuse”, “naive”, and “nefarious”. (I’ve always wanted to be nefarious.) And anyone who believes in holding those who drafted Section 1233 accountable for what the bill actually says rather than for the “subtext” of the language has simply missed the point.

It’s a free country so the CoPoMos are, of course, well within their rights to take that stance. I don’t think it’s any more constructive coming from them than it is coming from the PoMos on the other side of the aisle but if Grim is right then being constructive is not the goal.*

I, on the other hand, am dreadfully old-fashioned so I continue to believe “factual accurateness” is not merely important but crucial. The next post in this series will review MaxedOutMama’s reading of Section 1233.


* It’s fascinating that both the Left and the Right are making the same accusations with regard to health care. The Right is claiming that the Left wants to kill old people by passing universal health care. The Left is claiming that the Right wants to kill poor people by not passing universal health care. Surely each side should be somewhat reassured about the other’s respect for human life if both sides consider a disrespect for human life to be the worst insult they can hurl at their opponent.

A sting, a smell, an apology, and a really long footnote

[I have more to say about Section 1233 of HR3200 and will be doing so in a series of (probably) four posts. This is the first in the series although it serves as more of a prologue than an integral part. I also highly recommend reading the Jane Galt article linked here before beginning this series.

All the posts in the series will be filed under the category “Me And 1233”.

In my “Cry wolf” post I added an update to link to a post by Grim in which he argues that claiming Section 1233 of HR3200 requires end of life counseling every five years for those on Medicare does not, in fact, pose a risk of loss of credibility when the public discovers such a claim is incorrect. As he explains, the claim fits in with preconceived notions of what Democrats support and - equally important - the only way to refute the claim is to start talking about divisions, sections, sub-sections, paragraphs, sub-paragraphs, and sub-sub-paragraphs. At which point people’s eye simply glaze over. Or as Grim puts it:

the people will see a claim that echoes with their existing perception (and which they are therefore inclined to believe); and then they will hear for an answer a bureaucratic mish-mash that sounds like gibberish if it isn't read thoroughly and digested. 99% of humanity will simply assume from that the claim is true, and the counterclaim is an attempt to hide the truth behind layers of lawyer-speak.

Although I found that both depressing and discouraging, I was forced to concede that Grim might well be correct.

So far, so good. However, as I’ve visited Grim’s site over the last few days and scrolled through the text of his post to see if there are any new comments, my eyes have repeatedly snagged on this paragraph:

I still think it is less likely that the Post is attempting to leverage lies in this way, than that they aren't as careful and methodical as Elise. It's very easy for someone with a precise and clever mind not to understand how other people can be so slow and careless.

A nice compliment albeit one with a bit of a sting in the tail. It’s not the first time I’ve been called some variant of, shall we say, impatient although it’s certainly the gentlest way anyone has ever put it. What troubles me though is Grim’s belief that I believed the Post “is attempting to leverage lies”. Since I have found Grim to be careful and accurate, I am forced to conclude that the closing paragraph in my earlier post was not as clear as I had hoped. Thinking about that led me to a missing piece of knowledge and some realizations about my own political beliefs and how I view the rest of the political landscape.

Here’s how I closed my “Cry wolf” post:

It’s distressing how much the claim that Section 1233 compels end of life counseling reminds me of the claim that Sarah Palin quit as mayor of Wasilla without finishing out her term. The story about Palin is a deliberate lie, of course, while the story about Section 1233 seems to have started as an honest error, but the two stories share many of the same characteristics. Both fit perfectly into desired images: Palin is a quitter; the Democrats want to euthanize old people. Both spread quickly, repeated over and over by people who didn’t bother to check the accuracy of what they were saying - including people who should have known better. Neither one passes the most rudimentary smell test. And there’s no place to go to say, “But that’s not right” with any hope that the truth will be spread as far as the lie. Or even any hope that those doing the spreading are interested in knowing what the truth really is.

I’ll deal with the last two lines in my next post in this series. What the rest of that paragraph was intended to convey was that I believed the Post had honestly misinterpreted Section 1233; the misinterpretation spread through people who took the Post at its word without checking the story themselves; and some people who spread it should have known better. At the time I wrote my original post, the person who I felt should have known better was Betsy McCaughey. Not only is she considered enough of an expert on health care legislation to write editorials on the subject for both the Wall Street Journal and Bloomberg, she also made by far the most extreme claims of anyone I had read on this matter.

What I missed when I wrote that post is the fact that McCaughey wrote the original Post piece. Her name didn’t mean anything to me at the time and so it didn’t stick with me. It was not until after I heard her piece on the Fred Thompson show that I did some looking around and realized she was considered an expert on this type of legislation. I can see that it must have been odd for me in one place to say that I was willing to believe the original “required” argument was an honest misinterpretation while in another singling out the author of that original article as someone who should have known better.

While I was clearing that up, I was also realizing that my last paragraph made it clear I was unhappy that anyone reported the misinterpretation without checking its accuracy even if they claimed no special expertise in health care or legislation. In retrospect, this was odd even without my realizing who the author of the Post article was. The Post is, after all, a newspaper. All of us who think about politics have to assume someone at some point is getting things right because we have neither the time nor the inclination to hunt down the bedrock source of every single thing we’re told. So while it makes sense that I would think badly of an expert not checking her facts, it does not make sense I would be distressed that non-specialized bloggers reported as fact something they had read in the newspaper. Heck, I do it all the time.

What I realized when I thought about it is that there was simply no way the claim about mandatory end of life consultations for old people passed the smell test for me. I was literally unable to believe it. I was therefore unable to understand that it could pass the smell test for anyone else. Surely no one could actually believe that Congressmen would insert into a bill a provision that required the elderly to receive end of life counseling? Apparently they could. As Grim says (emphasis mine):

As for me, that's why I asked, "Seriously?" It sounded incredible (though not impossible, given the clear displays of arrogance by the government these last few years).

So if someone as sensible as Grim found it possible - however barely - to believe in the “mandatory” interpretation of Section 1233, why was it so impossible for me to do so? Three reasons, the last of which does me no credit at all.

First, I don’t believe those on the Left* actually want to euthanize old people or the ill to save money. What I do believe is:

- They honestly believe the old and the ill would prefer not to be kept alive artificially, suffering when there is no hope of recovery.

- They thus believe that if offered counseling most of the old and the ill will elect fewer extreme measures rather than more.

- They believe this will be a boon to the old and the ill rather than a burden.

- They also believe that this will save money on health care in the long run.

In other words, they believe they are marrying compassion and cost savings in one pretty package. They may be mistaken about what the elderly prefer and they may be misguided morally (although I’m not aware of any way in which their beliefs about end of life counseling run contrary to most religious teachings) but they are not soulless bean counters, rubbing their hands together in gleeful anticipation of being able to pull the plug on their parents and grandparents. They do show a distressing tendency to want to force people to do things “for their own good” but they also buy all that sensitivity stuff including the idea that old people shouldn’t be bossed around like children.

The second reason the “mandatory” interpretation of Section 1233 was impossible for me to believe was because I could not think of any way in which someone who supported this bill could credibly defend himself if asked about requiring mandatory end of life counseling. I’m not so naive I think politicians only vote for bills that are good and right and true. I do, however, think they do a rough mental calculation which comes down to: If I vote for this, can my re-election opponents get an attack ad out of it and, if so, can I make any kind of explanation that will convince (or, if you prefer, fool) the voters?

It’s quite easy to defend voting for a bill which provides senior citizens a new benefit in the form of an opportunity to sit down for a session dedicated to making sure their end of life wishes are followed. One can pontificate about preserving dignity. Tell horror stories of someone who lingered in agony for weeks while all his friends knew he wouldn’t have wanted that but couldn’t do anything but there was no advance directive. Tell more horror stories of someone who was denied treatment because some conniving second wife told the doctors to pull the plug even though all his friends knew he wanted every minute of life he could get but couldn’t do anything because there was no advance directive. Bring actual senior citizens up on stage to talk about how much they wanted someone to take the time to help them understand their options but doctors are so rushed these days they never get to it in a regular appointment and it’s just wonderful that now they can have someone take the time and trouble to help them figure out what it is they really want - not what some faceless, soulless hospital administrator thinks they should want. How is the opponent going to answer that? “Unlike the incumbent, I’m opposed to seniors making their own choices about end of life care”? I don’t think so.

If, on the other hand, the politician has voted for a bill that requires counseling rather than simply offering it, then the politician can tell all the stories and parade all the grateful seniors he wants. All the opponent has to do is find a couple of seniors who are opposed to end of life counseling - whether on religious grounds or simple curmudgeonliness - and send them out to tell their stories of being forced, forced I say, to talk about all this horrible stuff like, well, like all the stuff in McCaughey’s rant to Fred Thompson:

... how to end their life sooner. How to decline nutrition, how to decline being hydrated, how to go into hospice care. ... All to ... cut your life short.

Every senior citizen, every seriously ill voter, and everyone who loves an old, ill person will immediately get a mental image of themselves or their loved ones dying of thirst in some place that plays New Age music and hangs crystals over the patients’ beds but doesn’t believe in antibiotics or pain killers. The politician who voted for mandatory end of life counseling would be toast.

The third reason the “mandatory” interpretation didn’t pass my smell test is because if I wanted to make sure seniors elected less end of life care, I wouldn’t be that obvious about it. Clearly, this is not to my credit but there you are. For all the talk of frogs in simmering water, the Right was awfully quick to believe Section 1233 was a flame-thrower. It’s much more likely that even if the Left really did want to euthanize old people, they’d put together something like what Section 1233 really says rather than something like what people on the Right were claiming it did. Why tip your hand before you have to?

It seems, then, that I give the Left more credit for valuing life than do many on the Right; consider politicians on the Left more self-interested than do many on the Right; and am far more devious than many on the Right. Perhaps it’s because - although I’ve seen the light - I did lean Left for a long time; perhaps it’s because I have some extremely Left-leaning friends. Whatever the reason, it is clear that my smell test and that of much of the Right are quite different things. To the extent I unfairly implied that bloggers who were reporting Section 1233 required end of life counseling could not possibly believe what they were saying, I apologize.

However, experts like Betsy McCaughey and major media outlets like Fox should know better.


* A note about the phrases “the Right” and “the Left”. For me “the Right” is a catchall for the usual media suspects like Fox News and National Review Online as well as many of the bloggers I read (although they would object to being lumped together and with good reason). A quick definition would be: If forced at gunpoint to run for political office, they’d never get backing from the DNC. In the context of posts on health care, “the Right” can simply be taken to mean those who object vociferously to further massive government intervention in health care. It roughly equates to Republicans.

Conversely, “the Left” is the province of outlets like MSNBC and Huffington Post along with blogs like Obsidian Wings. They’d never get backing from the RNC and they are enthusiastic about further massive government intervention in health care, usually favoring a single-payer system. It roughly equates to Democrats.

Grim said I was:

elaborating a fear she has that the Right -- meaning the professional Right, I think, its think-tanks and journalists and advocates -- is intentionally making overly strong claims about the bill. She worries that the claims will undermine the Right's credibility, making it harder to convince people of the less-strong-but-still-very-serious problems.

I have a tendency to lump the Right-leaning bloggers into “the Right” although as Grim points out - and as I hope this post makes clear - I’ve realized that’s not entirely fair. The professional Right has far more of a duty to get their facts straight than do bloggers who must derive their information from the professional Right - and the professional Left for that matter. The line does get fuzzy, of course. At this point, I consider Huffington Post to be part of the professional Left even though they are not a traditional media outlet nor are they entirely made up of the sort of talking heads that appear with monotonous regularity on the Sunday morning shows.

This whole issue is very interesting. Consider the writer at Huffington Post who put up the disgusting satire about Trig Palin after Sarah Palin resigned; the post was taken down by HuffPo quite quickly. One rather cynical analysis of this sort of occurrence is that it is extremely useful to the professional Left to have those who are willing to do the dirty work but can be disavowed when the work they do is a little too dirty. This approach was used with great success - and often remarkable viciousness - by the Obama campaign last year. Their “netroots” could be vile, sexist, defamatory, and cruel while the “professional” part of the campaign insisted they knew nothing and were responsible for less.

Please note that I am not saying the bloggers who passed along McCaughey’s misinterpretation were acting as the dirty work auxiliary. They received information from a major media outlet, it passed their smell test, and they sent it along. That’s very different than receiving talking points from a campaign manager or deliberately being as offensive as possible.

On the other hand, I also don’t think this tactic is confined to the Left. I just think they’re a lot better at it. Personally, I consider that a good thing but it’s clear many who read my original post do not agree. I’ll speak to that in the next post in the series.

Sunday, July 26, 2009

Friday, July 24, 2009

Sometimes you jump, sometimes you're pushed

[This is the health care post I mentioned in my substitute offering. It didn’t turn out to be about what I thought it was going to be about but after I’d written it and left it to sit in the corner of my desktop to think about its disobedience, I ran across an serendipitous series of posts:

Ace of Spades (via Little Miss Attila) saying - among other interesting points:

... providing access to the uninsured doesn't poll well, as taxpayers correctly deduce that this means no benefit for themselves, but rather higher costs and rationing to service the uninsured.

Cardinalpark at TigerHawk writing “In Defense of Our Much Maligned Healthcare System”. You just have to read it. When I attempted to excerpt the good parts I ended up with practically the whole post.

And Grim writing on “Kindness to Others”. Again you should read the whole thing but I can’t resist quoting the line which is most appropriate here:

no one has the right to decide for us that we shall give up everything and live in mud huts, so that the poor may be given whatever we might have.

Realizing that my abandoned post had pieces of all three of those posts in it, I decided the wayward part of me that authored it was attempting some type of synthesis. So I took it out of the corner, dusted it off, and present it here. Abrupt ending and all.]

Recently Althouse quoted a paragraph from a Thomas Szasz opinion piece in the Wall Street Journal:

If we persevere in our quixotic quest for a fetishized medical equality we will sacrifice personal freedom as its price. We will become the voluntary slaves of a "compassionate" government that will provide the same low quality health care to everyone.

I believe that for some who support universal health care that is precisely the point. What is driving their support for universal health care is not the desire to insure that everyone has some health care but rather their determination to insure that everyone has the same health care. This would explain why the House health care bill (HR3200) is apparently so sweeping.

Even if we ignore the likelihood that including a “public option” will eventually - and probably not so far down the road - do away with private insurance altogether there are elements in the bill that appear designed to drive private insurance toward homogeneity. I’ve skimmed the beginning of the bill - I only got up to Section 204 - and what I seem to be seeing are rules about how much a subscriber’s out-of-pocket can be; Section 122’s specification of what must be in the “essential benefits package”; and requirements for offering standardized plans (Basic, Enhanced, Premium, and Premium-Plus). Then there’s this in Section 203 which I think may have the effect - because of cost not direct regulation - of doing away with individual States’ decisions about what insurers must offer:

(d) Treatment of State Benefit Mandates- Insofar as a State requires a health insurance issuer offering health insurance coverage to include benefits beyond the essential benefits package, such requirement shall continue to apply to an Exchange-participating health benefits plan, if the State has entered into an arrangement satisfactory to the Commissioner to reimburse the Commissioner for the amount of any net increase in affordability premium credits under subtitle C as a result of an increase in premium in basic plans as a result of application of such requirement.

Some of these may be good ideas, some may not. But I don’t see how any of them are necessary if the goal is simply to be sure everyone has some kind of health insurance. If that’s all that was wanted there are much simpler ways to achieve that. My plan to let anyone who wants enroll in FEHP with subsidies for those who need them. Alternatively, let everyone who wants to enroll in Medicaid but charge a premium to those who can afford it. Simplest of all, the idea I read somewhere that we give those below a certain income level debit cards and let them pick their own insurance. Even doing what Peter Singer suggests is simpler than HR3200:

This would mean extending Medicare to the entire population, irrespective of age, but without Medicare’s current policy that allows doctors wide latitude in prescribing treatments for eligible patients. Instead, Medicare for All, as we might call it, should refuse to pay where the cost per QALY is extremely high. (On the other hand, Medicare for All would not require more than a token copayment for drugs that are cost-effective.) The extension of Medicare could be financed by a small income-tax levy, for those who pay income tax — in Australia the levy is 1.5 percent of taxable income. (There’s an extra 1 percent surcharge for those with high incomes and no private insurance. Those who earn too little to pay income tax would be carried at no cost to themselves.) Those who want to be sure of receiving every treatment that their own privately chosen physicians recommend, regardless of cost, would be free to opt out of Medicare for All as long as they can demonstrate that they have sufficient private health insurance to avoid becoming a burden on the community if they fall ill. Alternatively, they might remain in Medicare for All but take out supplementary insurance for health care that Medicare for All does not cover.

Everyone would have some coverage but those who wanted and could afford it could have better coverage - or simply different coverage. So long as the government did not use Medicare for All payment rates to drive doctors out of business - and limiting which procedures it would pay for should ease the pressure to do that - private insurance would continue to be available. Yes, there are a lot of problems with Singer’s article but the plan he’s suggesting is simple and doesn’t make the government the only game in town. A great improvement over what HR3200 appears to be.

But the House Democrats have not opted for any simple plan that would simply give everyone some health insurance. Instead they’ve opted for a Rube Goldberg machine that seems bent on giving everyone the same insurance. That leads me to believe that everyone having the same thing is far more important than everyone having something.

At first glance, this doesn’t appear to be an indefensible position. I’ve always believed that the two strongest selling points for universal health care are:

1) Americans are willing to pay for health insurance but they want to know they won't lose it because they lose their jobs or because they get sick. (How can it be "insurance" if when you finally need it, the insurer can cancel it?) This includes worrying about premiums going so high they can't afford them.

2) Americans feel bad that some people don't have health insurance and think those people should be able to get it, too. As a nation we're just not comfortable with the idea that people may die of a treatable illness simply because they're poor.

It’s easy to extend the second point - no one should die because they don’t have health insurance because they’re poor - to also mean no one should live because they do have great health insurance because they’re not poor. All should have the same. If, as I suspect, that’s the driving force behind bills like HR3200, I wish the proponents would just say so. Because once you think about it for a minute, it’s nonsense and I think a national conversation about why it’s nonsense would be very useful.

The first nonsensical element is the idea that humans will ever construct a system in which everyone has the same health care. (The same anything, really, but I’m trying to stay focused here.) Those who are rich will always get better health care. Period. Even if the United States forces everyone to have the same health insurance, even if the United States drives really good doctors out of business, the rich will get great health care. They will jet off to Switzerland or Australia or Brazil or India or wherever really good doctors find a welcoming environment and get whatever health care they need.

What this means, of course, is that the rich will continue to get superb healthcare, the poor will get somewhat better healthcare, and those in between will get not only worse healthcare than the rich but worse healthcare than they’re currently getting.

The second nonsensical element is the idea that people will value the health of a stranger over that of themselves or their loved ones. If a bill like HR3200 ultimately means the government health plan is the only game in town, that will be the bargain. The vast majority of people who are neither rich nor poor - let’s call them middle-class - will get worse health care for themselves and their families in order to provide better health care to strangers. Here I think Singer’s thought experiment can be very useful. Paraphrased briefly, it goes like this:

Let’s say someone in my health insurance plan has advanced kidney cancer. The disease will kill him but if he takes a drug called Sutent his death can be postponed for six months. Every penny spent to prolong his life will raise my health insurance premiums. Sutent costs $54,000 for that six-month reprieve. I say it’s well worth it even for a stranger. Would I say the same if the six months cost $1 million, $10 million, any amount, no matter how high?

I believe that even those people who insist any amount of money, no matter how great, is worth it so a stranger can have those extra six months would object if that stranger were to show up on their doorstep and ask them and their families to agree to forego some health care in the future so the stranger can have those extra six months. Similarly, I believe the middle-class is willing to chip in some money so those less fortunate can have adequate health care. However if they believe they are going to have to accept worse health care so total strangers can get better health care, they won’t do it. At least not knowingly.

In addition to the nonsensical nature of the “everyone should have the same” idea there is also a very dangerous side-effect: the chilling effect on innovation. Once everyone (except the rich) has the same health care, how will health care in general ever get any better? Procedures might: all those good doctors in Zurich or Sydney or Rio or Bombay will almost certainly improve their techniques so surgical procedures, for example, will probably get better. But why would a pharmaceutical company develop a new drug? The government has already decided what it will buy for the masses; the pool of people who can afford to buy a new drug will be limited to the rich and how many rich people are there likely to be with a need for a specific drug?

The company could develop it, of course, and hope that it proves successful enough so the government will decide to put it on the list and be willing to pay enough to produce a profit. But that’s a pretty speculative basis for a huge investment. So either the drugs won’t get developed or they will get developed but only because a pharmaceutical company thinks it has enough pull with the government to get the drug put on the list. Not exactly a formula for ending up with the best - or even the most - possible new drugs.

And this issue leads into a larger form of the “everyone should have the same” theme: why should the United States carry the burden of paying for drug development? Right now - and I’m grossly oversimplifying here - patients in the United States pay full price for new drugs while countries with universal health care bargain to be sure their citizens pay less. We are the engine that drives improvements in health care.* Once upon a time, I think most people in this country would have been proud of the fact that in giving ourselves better health care we are also giving people all over the world better health care. Now I wonder how many of us would object because “that’s not fair”?

Perhaps that’s the ultimate problem with the idea that “all should have the same”: a fixation on whether anyone’s piece of the pie is larger than mine is pretty much guaranteed to kill generosity.


* From Wikipedia:

The United States still dominates the biopharmaceutical field, accounting for the three quarters of the world’s biotechnology revenues and R&D spending.

In 2007 North America accounted for 45.9% of world pharmaceutical sales against 31.1% for Europe. According to IMS Health data, 65% of sales of new medicines launched during the period 2002-2007 were generated on the US market, compared with 24% on the European market.

A little omphaloskepsis

I was the recipient (neither beneficiary nor victim seems quite accurate) of an Instalanche on Wednesday. It seemed like such a nice idea at 1am: email Instapundit politely pointing out that I thought the link he’d posted about HR3200 requiring end of life counseling was incorrectly interpreting the bill. I appreciate Instapundit believing my argument was worth passing along but I have to say I was unprepared for the consequences.

My first reaction was manic excitement: finally I’d been discovered and my incredibly brilliant insights would be recognized far and wide. My second was more realistic: I myself had read a few unknown bloggers as a result of an Instalanche and I’m not sure I ever went back to any of those blogs again. Even if I did, I’m pretty much certain that none of them made it onto my regular reading list. (Note to self: Do blogroll at some point.)

It was fun and exciting and interesting to have people with whom I could discuss my ideas and many of the commenters were quite positive about what I’d written. I have sometimes read a blog and not posted a comment because all I could think of to say was, “Good post. Thanks for the work. I particularly appreciated your whatever.” After realizing how much of a warm glow comments of that very type gave me I’ll be less reluctant to post something like that in the future.

Every silver lining has a cloud, of course, and I think I had a troll. Or at least a commenter who was either unwilling or unable to believe what I said. I was surprised at how upsetting that was. After all, I don’t know him and he doesn’t know me. Why should I care? Even more important, why should one voice insisting I was someone I was not override the voices that had expressed appreciation? I have no idea but it seems kind of dumb so I’ve decided to eschew upsetness in the future.

Then there were the commenters who were reasonably polite but thought I was mistaken, naive, foolish, or - I love this one - awfully young. Although deep in my heart of hearts I would of course prefer that everyone who comments on my blog acknowledge my indisputable wisdom, I did find it surprisingly enjoyable to have my ideas challenged. I don’t think any of us changed any minds but it was a nice mental workout.

So why am I writing this? A while back I read Althouse on why there are relatively few female law bloggers:

The internet is not going to coddle and comfort you. In fact, the internet wants you out of here. If you're going to be the sort of person who doesn't want to insist on her place when she can see that other people want her out of here, you're not going to get very far blogging.

When I read this, I scoffed at the idea that a female blogger might expect to be coddled and comforted or that a female blogger would just give up on blogging because she took a little grief. But yesterday when I realized I had commenters who actually expected me to defend myself and even more when I realized I had a troll, guess what I wanted to do? Yup, for one minute I thought, “Oh, boo-hoo. This is too hard.” I got over that very fast but what came next was even worse.

I was wandering through my “Posts in Progress” folder and my “Stuff to blog on” folder, trying to decide what to write about next, and I actually found myself thinking about how some of the commenters I’d had on my “Cry wolf” post might react to what I would say about a topic. Ugh! And also no way.

If I’m going to do that, there’s really no point in my blogging anymore. And if I give up blogging then I’m back to ranting and raving to friends and family. So this post is my way of reassuring all my loved ones who are quaking in fear at the thought of once again being on the receiving end of my enthusiasms that I will continue to blog and that means I will continue to write what I want, how I want, and about what I want. (There are way too many “w”s at the end of that sentence.)

What did I learn from my Instalanche?

- I learned Instapundit works like a dog. I emailed him at 1am and by 5:22am I had my first comment. (Thank you, Instapundit.)

- I learned having commenters is mostly fun.

- I learned people have opinions about what I should be writing on. That surprised me. When I read a blog post, I accept the scope of discussion as defined by the writer. I figure if Blogger Lepidopteraphile wants to write about how the migration patterns of the Monarch butterfly predict United States economic cycles, I’ll either skip right over that post or plunge right in and explain why I think Painted Lady migrations are a better predictor. It would never occur to me to suggest that he might do better to discuss government fiscal policy. I figure that if he wanted to talk about that, he would have.

- I learned I enjoy Cassandra at least as much when she comments on my blog as when I comment on hers.

- I learned there is a very gracious lady out there who didn’t comment on my blog but emailed me to provide morale support. (No, that is not a misspelling of “moral”.)

- I learned trolls are no big deal and can even be amusing.

- I learned that I control the horizontal, I control the vertical, I control the Delete button. (Learning that is part of learning that trolls are no big deal.)

- I learned that having people criticize what I’ve written makes me think about it more and will make me a better blogger.

- I learned that positive comments are absolutely crucial. They are the only way I can know I’ve made the point I wanted to make and made it clearly.

All in all, an enjoyable and interesting experience. Thanks to all the commenters who made it such and I hope I’ll see some of you again.

Thursday, July 23, 2009

It's important to get this right

[In response to a comment on my Cry Wolf post, I said I had an idea rattling around in my head for a post on rationing health care and I’d write it up today. The darn thing won’t write - all I’ve got is big unrelated chunks of words - so this is a substitute offering.]

This is the best argument I’ve heard for taking our time with a health care bill. In response to Obama saying about health care legislation, “Now, I do think it's important to get this right”, Yid With Lid says:

The question is, if it took six months for you to pick out a dog, how do you expect Congress to pick out a health care bill and get it right in 3-4 weeks?

Oh, please

In last night’s press conference, President Obama weighed in on the arrest of Henry Louis Gates:

Now, I don't know, not having been there and not seeing all the facts, what role race played in that. But I think it's fair to say, number one, any of us would be pretty angry; number two, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home; and, number three, what I think we know separate and apart from this incident is that there's a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately. That's just a fact.

An article (via Bent Corner) from television station WVCB in Boston has the following quote:

Spencer Kimball, an Emerson College professor and president of Kimball Political Consulting, said that he was surprised that Obama "elaborated upon" the Gates case.

"To bring it out as a racist issue is, in my opinion, very irresponsible. Race is a very decisive issue in our society, and to say that someone is racist or using racial profiling without all the facts in hand really only inflames those who want to make this a race issue," Kimball said.

If Kimball was surprised Obama would claim someone was racist without a firm factual basis he must have been in a coma during the recent election.

(On a happier note, rereading what I wrote during the campaign, I am delighted that neither Obama nor - as far as I’ve heard - his supporters are using the race card to attack those who oppose Obama’s policies. I don’t have much good to say about the President but I give him full marks for that.)

Wednesday, July 22, 2009

Comment moderation

Comment moderation is now off; comments will be posted immediately.

And, ah, fame is fleeting. There were no comments for me to review this morning.

Comment moderation is on overnight. It will be off and all comments reviewed no later than 11am on Thursday.

Tuesday, July 21, 2009

Cry wolf [Three updates]

[Updated July 28, 2009, about 8am: I have more to say about Section 1233 of HR3200 and have done so in a series of (so far) four posts:

A sting, a smell, an apology, and a really long footnote

Speaking in tongues

You claim that mish-mash is a defense?

Now I can sleep

All these posts in the series are filed under the category “Me And 1233”.]

[I've now updated this twice once with a response to comments by JohnMc and once with a link to something Grim wrote. Both updates are at the bottom of the post.]

[An Instalanche, an Instalanche. Welcome, everyone.]

The Right leaning blogs are up in arms over a provision in HR3200, the House’s health care bill. According to the New York Post (emphasis mine):

One troubling provision of the House bill compels seniors to submit to a counseling session every five years (and more often if they become sick or go into a nursing home) about alternatives for end-of-life care (House bill, p. 425-430). The sessions cover highly sensitive matters such as whether to receive antibiotics and "the use of artificially administered nutrition and hydration."

The Post’s interpretation of Section 1233 has been picked up by a whole armful of bloggers. See Grim’s Hall, Little Miss Attila, and RedState, for example. Instapundit has linked to RedState. Meanwhile The Anchoress links to Catholic Online which refers to an interview Betsy McCaughey did with Fred Thompson in which she claims (at about 1:20):

... and one of the most shocking things I found in this bill - and there were many - is on page 425 where the Congress would make it mandatory, absolutely required, that every five years people in Medicare have a required counseling session that will tell them how to end their life sooner. How to decline nutrition, how to decline being hydrated, how to go into hospice care. And, by the way, the bill expressly says that if you get sick somewhere in that five-year period, if you get a cancer diagnosis, for example, you have to go through that session again. All to do what’s in society’s best interests or your family’s best interests and cut your life short.

Um, no. That’s not what HR3200 says. Here’s the short version of what it really says:

The section under question is Section 1233 of HR3200 (the House health care bill) and it is amending subsection s(2) of Section 1861 of the Social Security Act (42 U.S.C. 1395x). Section 1233 of HR3200 adds new sub-paragraph (FF) to the list of what Medicare will pay for as defined in Section 1861 of the Social Security Act.

Section 1233 is saying that Medicare will pay for an "advance care planning consultation" no more often than once every five years unless the patient's health status changes as a result of certain diagnoses or the patient is admitted to a nursing home, long-term care facility, or hospice. Such a consultation may result in a written directive about care and that directive may include information about such areas as antibiotics and intravenous feeding and hydration as well as the usual DNR instructions and any wishes with regard to facility transfer.

In other words, Section 1233 is creating a new type of “treatment” that will be paid for by Medicare. It will only pay for one such consultation every five years unless the patient’s health status changes, in which case Medicare will pay for a consultation when that change occurs. This is not a mandate; this is a new entitlement. It may not be an entitlement everyone likes but it is still something extra for those on Medicare.

Here’s the long version in which I show you how to follow the trail yourself:

You can access the House’s health care bill (HR3200) via THOMAS. Say you want to search by bill number and enter “HR3200” in the search box. Say you want “Text of Legislation”. Click on the hyperlink for “SEC. 1233. ADVANCE CARE PLANNING CONSULTATION.” This section is amending Section 1861 of the Social Security Act (42 U.S.C. 1395x) by adding a new subparagraph (FF).

Now take a look at the Social Security Act. You can find the home page for it here. Click on the hyperlink for “Social Security Act Table of Contents”, then click on the hyperlink for “Title XVIII Health Insurance for the Aged and Disabled”, then on the hyperlink for “Sec. 1861. Definitions of services, institutions, etc.”

I’ve sent you the long way around because if you just start with Section 1861 you don’t really know where you are. If you want to go straight to that Section simply click here.

Hunt down the page until you find the centered heading “Medical and Other Health Services”. Directly under that is subsection (s) which begins:

(s) The term “medical and other health services” means any of the following items or services:
(1) physicians' services;
(2)(A) services and supplies (including drugs and biologicals which are not usually self-administered by the patient) furnished as an incident to a physician's professional service, of kinds which are commonly furnished in physicians' offices and are commonly either rendered without charge or included in the physicians' bills (or would have been so included but for the application of section 1847B);

and goes on to list 31 “medical and other health services” concluding with:

(DD)[450] items and services furnished under an intensive cardiac rehabilitation program (as defined in subsection (eee)(4));[451]

(EE)[452] kidney disease education services (as defined in subsection (ggg));

before moving on to subparagraph (3) which deals with diagnostic X-rays.

Section 1233 of HR3200 will add:

(FF) advance care planning consultation (as defined in subsection (hhh)(1));

to the bottom of that list. It will also add the definition in subsection (hhh)(1) at the very end of Section 1862, below subsections (ggg)(1-4) which define “Kidney Disease Education Services”.

In other words, “Advance Care Planning Consultation” will be no more “compelled” than the “intensive cardiac rehabilitation program” listed in (DD) or the “kidney disease education services” listed in (EE). The five years is a limitation not a requirement: Medicare will not pay for such a consultation more often than once every five years unless:

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.

This doesn’t mean Medicare will pay for more frequent consultations for individuals in facilities but rather that it will pay for a consultation when they enter such a facility even if their previous consultation was less than five years previously.

Section 1233 of HR3200 also amends Section 1848(j)(3) of the Social Security Act to include the newly defined (FF) in the list of services that will be paid for. It then amends Section 1862(a) to make it clear Medicare will not pay for advance care planning consultations that take place more frequently than allowed (that is, every five years except in the case of a significant change in health status.)

Section 1233 of HR3200 then requires the Secretary to 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.

while also requiring the Secretary to publish the metrics he plans to use and invite public comment on them.

Section 1233 of HR3200 concludes by requiring the Secretary of Health and Human Services to include information about these changes to the Social Security Act in subsequent editions of the Medicare & You Handbook.

So Advance Care Planning Consultations are not compelled, required, or mandated. Is it weird they’re in this bill? Maybe, maybe not. Section 1233 is part of “Subtitle C - Miscellaneous Improvements” under “TITLE II - MEDICARE BENEFICIARY IMPROVEMENTS”. Subtitle C includes:


In addition to these changes to Medicare, a lot of the other parts of this bill also deal with Medicare. So it’s entirely possible that having Medicare pay for Advance Care Planning Consultations is an idea that’s been kicking around for a while and got stuck in this bill along with, say, Section 1231 which seems to provide a longer term of coverage for kidney related conditions. It would be nice to ask someone involved in drafting Section 1233 why they decided to include this. I can believe there were requests for it. If my aunt had had such a consultation with her doctor, in which she could have made it crystal clear that she wanted all the stops pulled out as long as there was any hope at all, she might be alive today. Furthermore, Section 1233 says that the Secretary’s reporting metrics must “measure both the creation of and adherence to orders for life-sustaining treatment.” In other words, if you say you want the doctors to do everything to keep you alive then theoretically someone will be watching to be sure they do so.

What makes this benign explanation hard to accept, of course, is the perception that the Left is quite comfortable with - and possibly even enthusiastic about - not “wasting” health care dollars. Obama’s exchange with Jane Sturm back in June doesn’t totally support this perception but it doesn’t do much to challenge it either - particularly if all you hear from it are his comments about not considering a patient’s spirit when making medical decisions and, even worse, that horrible sentence fragment: “maybe you're better off not having the surgery, but taking the painkiller.” Furthermore, Obama explicitly talks about living wills:

But, look, the first thing for all of us to understand is that we actually have some choices to make about how we want to deal with our own end-of-life care. And that's one of the things, I think, that we can all promote. And this is not a big government program. This is something that each of us individually can do, is to draft and sign a living will so that we're very clear with our doctors about how we want to approach the end of life.

Given all this, I can see why those on the Right would find it easy to believe Democrats would write a health care bill that requires the old and the ill to sit down with their doctors and talk about how to end their lives. Nonetheless, if the goal is to convince voters who are waffling on the health care bill to call their Congressmen and oppose it then the Right’s decision to put forth a specious claim about such a serious matter was a very bad mistake.

Here’s how this plays out. The Right claims the House health care bill will force old people to sit down and talk about end of life issues including - as McCaughey put it - declining nutrition and hydration; the wafflers are appropriately horrified; it turns out not to be true. How much attention are those same wafflers going to pay when the Right argues that, okay, the bill doesn’t exactly require such consultations but it does say the government will pay for them and, hey, look what Klein and Yglesias and Obama himself are saying about this stuff? My guess would be, not much. After the stronger claim has been discredited no one is going to be interested in the weaker but more credible claim; the Right has blown its euthanasia cred by, yes, overreaching.

Even worse this mistake is strike two. Strike one was the Right’s claim that:

Right there on Page 16 is a provision making individual private medical insurance illegal.

It turned out that once you got to page 19 you were allowed to buy individual coverage “as an Exchange-participating health benefits plan.” Compared to such coverage being outlawed, the Exchange sounds so good no one even seems to care what it is. Without such a comparison, some of those wafflers might be inspired to ask, “What the heck is the Exchange?” If the Right wants to credibly oppose HR 3200 - or any universal health care bill - it needs to be very sure of its facts in the future. The next error is strike three.

And it’s not like there’s nothing real to oppose. I think the Democratic plan to overhaul the entire health insurance system is a big - and unnecessary - mistake. I certainly think that trying to pass a bill this huge so fast almost guarantees disaster somewhere down the road. If nothing else, can we at least agree we won’t go any further with it until THOMAS is able to give us a Summary? You know, HR3200 in a semblance of plain English?

More specifically, I think it’s almost certain the decision to pay for advance care planning consultations will result in big problems. As I said over at Grim’s:

If this bill passes there's no doubt in my mind that sleazy operators are going to start doing cable TV ads offering to help seniors meet their counseling "requirement" or suggesting seniors should get "everything they're entitled to" under Medicare. Those same sleazy operators are going to sit down with the seniors for 5 minutes, have them sign some bogus document that has nothing to do with what they really want but is still legally binding, and bill the government for the work. I predict 3 months after the bill passes before we start hearing stories of seniors who were not treated as they actually wanted because they signed a badly done advance directive.

I'm also sure some care facilities are going to pretty much coerce their patients into these counseling sessions to make some more money. Of course those facilities have an incentive to make the resulting advance directives as optimistic as possible - if the patient dies, the facility stops getting paid.

Apart from these financial scams, I do see that the advance care planning consultations can become the first step in a slippery slope and take seriously the concerns of those who fear they could lead to government-encouraged suicide and euthanasia. However, none of the very real problems with HR3200 or with Section 1233 make an untruth true.

It’s distressing how much the claim that Section 1233 compels end of life counseling reminds me of the claim that Sarah Palin quit as mayor of Wasilla without finishing out her term. The story about Palin is a deliberate lie, of course, while the story about Section 1233 seems to have started as an honest error, but the two stories share many of the same characteristics. Both fit perfectly into desired images: Palin is a quitter; the Democrats want to euthanize old people. Both spread quickly, repeated over and over by people who didn’t bother to check the accuracy of what they were saying - including people who should have known better. Neither one passes the most rudimentary smell test. And there’s no place to go to say, “But that’s not right” with any hope that the truth will be spread as far as the lie. Or even any hope that those doing the spreading are interested in knowing what the truth really is.


Updated, July 22, 2009, around 10:45am

In the comments, JohnMc thinks I’ve missed the forest for the trees and raises some specific issues. Responding to him got long enough - and I think important enough - to warrant an update to the post.

A doctor will consult on the legal aspects and also provide applicable paperwork

Not really seeing that. (hhh)(1) provides for (among other things):

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.

But F(i-iii) limit these types of consultations to States with a standardized “program for orders for life sustaining treatment”. That is, physicians must do the check-off thing in (hhh)(1)(A-E) only in States that have created check-off type programs - including standard forms - for end of life issues and that train their practitioners on how to tell patients about these standardized programs.

So if I have my own living will drafted by my attorney the State will refuse to recognize it? (F)(I)(iii)

No. (iii) is a list of the requirements a State must meet to be considered to “[have] in effect a program for orders for life sustaining treatment”. Only in States that have such a program in place - and “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” - will practitioners be required to include the specific items in (hhh)(1)(A-E).

Here’s the deal. I live in New Jersey. If I go to the hospital, they ask me if I have an advance directive. If I say no, they ask if I want one. If I say yes, they hand me a form that asks a few basic questions, I check the boxes, and that gives them a rough idea of when to pull the plug. However, I have both a living will and a medical power of attorney. So I don’t check the form, I just give them a copy of those documents.

Bottom line: This bill requires that certain standard areas be covered in a consultation if and only if the State the patient and practitioner are in has established a standardized program for end of life issues, including forms that are legal without the help of a lawyer. Nowhere does it say that creating your own documents with your own lawyer is not allowed, not legal, or not acceptable.

Of course you didn't address it but what is being missed in all this is that any of the current bills (there are three in the docket) all have implied rationing.

First, that little “Of course”? Kind of ugly. I have very strong convictions about the importance of assuming good will even on the part of those with whom I disagree. I appreciate the same assumption from those who disagree with me.

Substantively, I certainly understand that fears about rationing are well-founded. Once you accept that medical care taking an increasing percent of the GDP is a problem - which I’m not sure I do - and you realize that better treatment means higher costs - which I realize very well - and you realize that older people and sicker people need more care - which I realize very, very well - you’re going to be stuck with rationing as the only way out. Fear of rationing is a perfectly valid reason to oppose this bill and any similar health care bill. It is NOT a perfectly valid reason to misinterpret the bill or - worse yet - to deliberately misstate what’s in the bill.

As for missing the forest for the trees, I did not set out to argue HR 3200 is a good bill. Nor did I say that slippery slope concerns were not valid. What I said was that the claim of mandated, required, compelled end of life counseling was inaccurate.

I short while ago I was reading a blog where an argument was raging over whether Sarah Palin billed rape victims for evidence kits. (Yes, recently. Yes, still.) One of the commenters didn’t seem to think it mattered what the facts were: the story was intended as an emotional truth. I’m apparently one of the few remaining people on the face of the earth who thinks emotional truth is not the same as actual truth and not even within shouting distance of fact. If we all define our own truth based on what “feels” accurate then we really are living in a postmodern world where, as Brad Holland put it:

Postmodernists believe that truth is myth, and myth, truth. This equation has its roots in pop psychology. The same people also believe that emotions are a form of reality. There used to be another name for this state of mind. It used to be called psychosis.


Updated, July 22, 2009, around 6pm: Grim and I had an email exchange about this post and I he has posted a large portion of that exchange at his blog. I think it's an interesting view of this issue and one I would never have thought of. Grim argues that the Right is taking the correct tack rhetorically. Read the whole thing here.

Grim's logic and argument are impeccable as always and all I can offer by way of rebuttal is this (also from our email exchange):

The only point I can bring up that may mean you're wrong about the Right being right to pursue this tactic is the asymmetrical force levels. If it is the case that most of the media is heavily tilted in favor of Obama, in favor of the Democrats, and in favor of this bill (or one similar to it), it will be difficult for the Right to be heard making these charges and it will be easy for the Democrats (with the assistance of the media) to cast those charges as the deranged ravings of Rove-Cheney type politicians who will tell any kind of lie to get their own way. Imagine if the Right had attempted to do to Obama what was done to Palin: spin fantastic tales out of half-truths at best, thin air at worst. They would never have gotten traction. We'll see if they can get traction on the health care bill.