Monday, July 27, 2009

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.

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