No Death Panel Overlords Here

Yesterday, I had a chance to watch John Stewart’s recent interview of Betsy McCaughey, an interview that apparently resulted in Ms. McCaughey’s resignation as director of Cantel Medical Corporation.

Ms. McCaughey’s now infamous interview focused on a section of House Bill 3200, titled “America’s Affordable Health Choices Act of 2009,” which you can read for yourself here. McCaughey claimed that the bill implemented so-called “death panels” which would decide whether a person with a chronic or terminal condition would be afforded federally-funded health care.

I was fascinated by the claim, and by the apparent inability of McCaughey and Stewart to agree on what was in the bill, that I decided to check it out.

Not the whole thing, mind you. Like a lot of Federal legislation, HB 3200 is unimaginably complex. If it is implemented, entire careers will be devoted to trying to understand and implement the bill. Nevertheless, I thought it might be interesting to at least check out the provision that was the focus of the discussion.

The journey through this bill began on page 424, the beginning of the section which McCaughey claimed creates a “death panel.”

This section amends the Social Security Act by adding “advance care planning consultation” to the Social Security Act’s definition of “medical and other health care services.” (You can find the section of the SSA that would be amended here.) 

Why is the SSA’s definition of “medical and other health care services” important? Because it is one of the key phrases that describes the types of treatment that will qualify for Medicare benefits. (The section where the definition is deployed in the Medicare statute can be found here.)

In other words, what HB 3200 does is provide Medicare patients with an opportunity to meet with their physician to discuss “advance health care planning” on the Federal government’s nickel.

Notably, this meeting does NOT appear to be mandatory. No one is forced to participate in this discussion. The bill simply provides that, if a patient elects to discuss this issue with their doctor, Medicare will pay for it.

HB 3200’s definition of “advance health care planning consultation” goes into some detail, but the practical upshot of it is that the phrase refers to a meeting between a doctor and a patient on the subject of advance directives, which are decisions that are made by a patient about how their health care should be handled in the event they become mentally incapacitated.

There are two key components that have long played a role in advance directives, and HB 3200 recognizes them explicitly:

First, there is the living will, which provides guidance to the patient’s family and health care providers about the circumstances, if any, under which life-sustaining treatment should be withdrawn. The decision regarding the contents of a living will, or even whether a living will is created, are completely up to the patient.

Second, there is the “durable power of attorney.” This is a document that a patient can execute which indicates who will make health care decisions for the patient in the event the patient cannot make decisions for themselves.

As Stewart, and a good many folks in the media, have since observed, there is no “death panel” – or anything even remotely like it – in this part of the bill.

However, what fascinated me about this particular provision of the bill was the fact that it appears to do exactly the opposite of what McCaughey was claiming it does. Rather than handing over end-of-life decisions to a Federal panel, this bill reinforces  the patient’s power to make their own choices – by ensuring that they have an opportunity to apprise themselves of their options before they become incapacitated, and by providing them with an opportunity to designate the person who will make their decisions for them.

No shadow overlords here, I’m afraid. Just a fairly innocuous provision that will probably help elderly patients to become more aware of the ways they can continue to exercise a degree of self-determination if or when they become gravely ill.

What is disturbing here, of course, is the way a debate over complex Federal legislation can be hijacked by profoundly misleading accusations. It probably took me an hour to work through this to see for myself what was going on. Most folks won’t have the time or inclination, and may not even have the education – or internet access – to do it. They are stuck relying on their trusted news sources – CNN, Fox News, radio talk show hosts – or even entertainment sources (such as Stewart’s show) to tell them what is going on.


3 Responses to No Death Panel Overlords Here

  1. david epstein says:

    Say it ain’t so, Joe! The democratic uproar in response to the conservative uproar over the “death panels” is a classic straw-man routine. The moral hazard is actually not to be found in the benign end-of-life counseling, but the much more ominous Comparative Effectiveness Research, which is a very close relative of the British rationing plan aka Quality Adjusted Life Years, which means if the government thinks your too old to be worth fixing, you’re a goner.

  2. Matt says:

    Hi David. Thanks for stopping by.

    I disagree that we are dealing with a straw man here. McCaughey is one of the highly touted conservative champions on HB 3200. It was she, not I, that picked out this section of HB 3200 as an example of the so-called death panels.

    Having said that, I do agree that the appropriateness of comparative effectiveness standards – if part of HB 3200 – is worthy of vigorous debate. Again, however, I have yet to encounter a description of how the mechanics of HB 3200 will bring those standards into play.

    I should also add that, if HB 3200 does implement concepts like you are describing, opponents of HB 3200 ought to be able to knock this one out of the park. Politicians aren’t going to vote for policies that hasten the death of voters and voters’ family members. That is why, although I haven’t read the entire thing, I am suspicious that CERs and QALYs are also “phantom” provisions that simply don’t exist in HB 3200.

  3. Michelle says:

    “Death Panels” aren’t going to be obvious of course, but they are there. Case in point- the recent USPSTF revised mammography guidelines. The recommendation is that women age 50 to 74 receive biennal mammographs (compared to their 2002 guideline of mammograms beginning at age 40 every one or two years with no upper age limit.) This recommendation has a “B” rating. Why is that important? Please read page 17 beginning at line 6 of the Senate healthcare bill: “A group health plan and a health insurance issuer offering group or individual health insurrance coverage shall provide coverage for and shall not impose any cost sharing requirements for- evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force.”

    If this bill passes, most women in their 40s will not be able to receive mammograms because of a decision reached by 16 members of a government panel (none of whom are oncologists), and yes, deaths will result.

    Oh, and by the way, QALYs are in the USPSTF report too. (Page 9 of “Screening for Breast Cancer: Systematic Evidence Review Update for the U.S. Preventive Services Task Force.”)

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