Obama Administration Pulls End-of-Life Counseling Reimbursement

January 05, 2011

January 5, 2011 — The Obama administration has suddenly pulled the plug on a new regulation that made voluntary end-of-life counseling a reimbursable service under Medicare.

The provision, introduced as a regulation in November to implement the Affordable Care Act (ACA), had taken effect January 1.

This is the second time that Medicare reimbursement for end-of-life counseling, also called advance care planning, has been shot down. An early version of healthcare reform legislation in 2009 called for paying physicians to engage their Medicare patients in advance care planning. However, this measure was withdrawn after critics, including former Republican vice presidential candidate Sarah Palin, charged that it amounted to an attempt to save money by hastening the death of the elderly with the help of federal "death panels," which were erroneously said to be authorized by the bill.

The provision reemerged after the passage of the ACA, which reimburses physicians for an annual wellness visit with Medicare patients, an extension of the one-time "Welcome to Medicare" visit already in place. The Welcome to Medicare visit can include advance care planning as one of its reimbursable components. In final regulations spelling out how it will implement the ACA, the Centers for Medicare and Medicaid Services made advance care planning an optional annual wellness visit component as well.

The regulation drew applause from leaders of organized medicine and physicians involved in end-of-life care, but ACA opponents contended that the Obama administration was sneaking its "death panel" ideology back into the law.

A story published by the New York Times yesterday quoted an unnamed Obama administration official as saying that the provision for advance care planning had not appeared in a proposed version of the CMS regulations published in July for the sake of soliciting public feedback. Instead, it appeared only in the final regulations published in November.

"We realize that this should have been included in the proposed rule, so more people could have commented on it specifically," the official was quoted as saying.

A spokesperson for the US Department of Health and Human Services told Medscape Medical News that the New York Times story was correct.

The White House did not respond to a request for comment.

The withdrawal of the Medicare regulation on advance care planning does not prevent physicians and patients from talking about living wills, hospice care, or other end-of-life issues. However, physicians cannot bill Medicare for this service. Proponents of the regulation maintain that reimbursement for such involved conversations will encourage more physicians to have them with patients.

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