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:

SEC. 1231. EXTENSION OF THERAPY CAPS EXCEPTIONS PROCESS.
SEC. 1233. ADVANCE CARE PLANNING CONSULTATION.
SEC. 1234. PART B SPECIAL ENROLLMENT PERIOD AND WAIVER OF LIMITED ENROLLMENT PENALTY FOR TRICARE BENEFICIARIES.
SEC. 1236. DEMONSTRATION PROGRAM ON USE OF PATIENT DECISIONS AIDS.

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.