Reimbursement for End-of-Life Counseling Supported by Physicians

December 29, 2010

December 29, 2010 — A new federal regulation that makes voluntary end-of-life counseling a reimbursable Medicare service — a provision stripped from healthcare reform legislation last year — continues to receive support from the medical community despite accusations that it will lead to rationing.

Organized medicine has endorsed end-of-life counseling — also called advance care planning — as the epitome of patient-centered care because its goal is finding out what kind of care, if any, a person wants at life's end. Having such discussions in advance is crucial, said Roland Goertz, MD, president of the American Academy Family of Physicians (AAFP).

"The best time to talk about that is not on your deathbed, but beforehand, when you still can think coherently and discuss these things with your family," Dr. Goertz told Medscape Medical News. Busy physicians are more likely to broach the subject if they are financially rewarded for it, he added. "In our country, incentives work extremely well."

An early draft of healthcare reform legislation last year called for paying physicians to talk to Medicare patients about living wills, durable power of attorney, palliative care, and hospices, but the provision never made it into the Affordable Care Act (ACA) passed in March. Congressional Democrats excised it after former Republican vice presidential candidate Sarah Palin ignited a firestorm of criticism by saying that such consultations — meant to be voluntary — represented a government effort to save money by encouraging seniors to receive minimal care, which "death panels" would parcel out. "Pull the plug on grandma," as some opponents put it.

The ACA left room for the Obama administration to accomplish by regulation what Congress could not do through legislation. As part of its push for preventive services, the new law will begin to reimburse physicians as of January 1, 2011, for conducting an "annual wellness visit" with Medicare patients. The ACA specifies certain elements of these visits, such as calculating a patient's body mass index, but allows the secretary of the US Department of Health and Human Services to add more elements to future regulations that would implement the legislation. In November, the Centers for Medicare and Medicaid Services (CMS), a part of the Department of Health and Human Services, issued those regulations, which included end-of-life counseling as a possible element of a Medicare annual wellness visit.

Similar to his counterpart at the AAFP, the president of the American College of Physicians (ACP) applauds the new regulation.

"ACP supports greater recognition and adequate Medicare reimbursement for extended and complex counseling required for physicians to develop end-of-life care plans for their patients," J. Fred Ralston, Jr, MD, told Medscape Medical News in an email. Such discussions will not be used to withhold care, Dr. Ralston added. "In my years as a practicing internist, I have learned to tailor care toward the wishes and beliefs of individuals."

Medicare Has Paid for Limited End-of-Life Counseling Since 2009

For all the controversy that end-of-life counseling generated during the healthcare reform debate, Medicare has been paying for the service in a limited fashion — and with little if any protest — since January 1, 2009.

That curious story began in 2005 with the introduction of the "Welcome to Medicare" physical for new beneficiaries. The program traditionally has not covered wellness or preventive services, but the "Welcome to Medicare" visit gave recipients at least an initial going-over on the federal tab.

In 2008, Congress passed a law called the Medicare Improvements for Patients and Providers Act that expanded the scope of the Welcome to Medicare visit by adding end-of-life planning as a component. The House passed the bipartisan legislation in a 355 to 59 vote; the Senate followed suit it with a unanimous consent vote.

President George Bush vetoed the act, but his stated reasons for doing so had nothing do to with death panel phobia. Rather, he mostly objected to how the law would cut funding for Medicare Advantage plans. The House and Senate each mustered the two thirds majority needed to override the veto.

In the final regulations for the new healthcare reform law published in the Federal Register last month, CMS noted that the addition of advance care planning to the annual wellness visit extends what is already found in the Welcome to Medicare visit. According to CMS, a number of physicians and healthcare organizations had lobbied for that change. The agency's decision, it stated, reflects new research showing that most elderly patients would welcome such counseling and that rather than leading to harm, it improves end-of-life care and patient and family satisfaction.

"We believe that (advance care planning) will help the physician better align the personal prevention plan services with the patient's personal goals and priorities," the agency concluded.

"Politics Is Not Always Evidence-Based"

The value of advance care planning is a veritable article of faith in medicine. That was evidenced earlier this year when medical societies such as the AAFP, the ACP, and the American Medical Association (AMA) joined the AARP, the American Hospital Association, and dozens of other groups in participating in National Healthcare Decisions Day on April 16, which promoted the use of advance directives. And in November, delegates to the AMA's interim meeting in San Diego, California, adopted a resolution reaffirming the value of advance care planning.

In light of this consensus, many physicians were dismayed when a proposal to make advance care planning a reimbursable Medicare service under healthcare reform legislation came under ferocious attack last year. "This provision may start us down a treacherous path toward government-encouraged euthanasia if enacted into law," wrote Rep. John Boehner (R-OH), who will become House Speaker next year. "Government dictates how your life ends," read one polemic widely circulated on the Internet. Numerous medical societies signed on to a rebuttal to that document, stating that "no one will be forced to have discussions about end-of-life care if they don't want to."

The reemergence of advance care planning in CMS regulations has revived this debate and its "death panel" rhetoric. National Right to Life, an antiabortion group, for example, published an article yesterday online titled "Here We Go Again: ObamaCare Regulations 'Nudge' Elderly to Reject Lifesaving Treatment."

To Jeffrey Stoneberg, DO, clinical medical director for San Diego (California) Hospice and the Institute for Palliative Medicine, such characterizations reflect unease with the subject of death.

"Many cultures do not talk about the end-of-life care," said Dr. Stoneberg, who spoke about advance care planning at the AMA meeting in San Diego last month. "There's a pervasive fear that if you talk about it, something bad will happen."

Other physicians chalk up the controversy to politics.

"I think it's total political gamesmanship," said Anthony Back, MD, an oncologist who teaches physician–patient communications and palliative care at the University of Washington. "You can distort (advance care planning) so that it plays into people's fears of rationing."

Dr. Goertz of the AAFP expresses that view in milder terms: "Politics," he said, "is not always evidence-based."

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