WASHINGTON – Medicare said Wednesday it plans to pay doctors to counsel patients about end-of-life care, the same idea that sparked accusations of "death panels" and fanned a political furor around President Obama's health care law six years ago.
The policy change, to take effect Jan. 1, was tucked into a massive regulation on payments for doctors. It suggests that what many doctors regard as a common-sense option is no longer seen by the Obama administration as politically toxic. Counseling would be entirely voluntary for patients.
Some doctors already have such conversations with their patients without billing extra. Certain private insurers have begun offering reimbursement. But an opening to roughly 55 million Medicare beneficiaries could make such talks far more common. About three-quarters of the people who die each year in the U.S. are 65 and older, making Medicare the largest insurer at the end of life, according to the Kaiser Family Foundation.
"As a practicing physician, and a son, and someone who has dealt with this in his own family, I would say these are discussions ... that are critical to high-quality care," said Patrick Conway, Medicare's chief medical officer. "I would want any American who wanted to have this conversation with their clinician to have the opportunity to do so."
Medicare is using a relatively new term for end-of-life counseling: advance care planning. That's meant to reflect expert advice that people should make their wishes known about end-of-life care at different stages of their lives, as early as when they get a driver's license.
The counseling aims to discern the type of treatment patients want in their last days, with options ranging from care that's more focused on comfort than extending life to all-out medical efforts to resuscitate a dying patient.
The American Medical Association praised Medicare's decision. "This issue has been mischaracterized in the past and it is time to facilitate patient choices about advance care planning," said Andrew Gurman, the group's president-elect.
Before former Alaska Gov. Sarah Palin ignited the "death panels" outcry, there was longstanding bipartisan consensus about helping people to better understand their end-of-life choices and decisions.
A 1992 law passed under Republican President George H.W. Bush requires hospitals and nursing homes to help patients who want to prepare living wills and advance directives. Similar efforts gained resonance after the 2005 death of Terri Schiavo, the brain-damaged Florida woman whose family fought for years over whether she'd want to be kept alive in a vegetative state.
Then-Florida Gov. Jeb Bush got embroiled in the family's ordeal, ordering feeding tubes reinserted for Schiavo against her husband's wishes. The husband ultimately prevailed in a legal battle with Schiavo's parents, who wanted her kept alive.
In 2008, a year before debate over the Affordable Care Act spiraled into tea-party protests, Congress overwhelmingly passed legislation requiring doctors to discuss issues like living wills with new Medicare enrollees.
And, just months before being tapped as running mate for GOP presidential nominee John McCain, Palin herself signed a proclamation recognizing Healthcare Decision Day in Alaska, with the goal of a statewide effort of spreading the word about the importance of advance directives.
That history dissipated almost instantly when Palin said the provision on end-of-life conversations in Obama's health care legislation would result in bureaucrats deciding whether sick people get to live. The language, modeled after a bill by Rep. Earl Blumenauer, D-Oregon, was ultimately removed.
Blumenauer said Wednesday the nation now seems to have come to a consensus. "There was a time when the federal government could have been a leader on this, but now it's basically responding to where the rest of America is going," he said.
Nothing in the discussions approved by Medicare will be focused on cost, but many experts believe if patients truly understood their alternatives, and doctors listened to them, bills would inherently go down.
A landmark report last year from the Institute of Medicine found that few people make their wishes known and too many deaths are filled with breathing machines, feeding tubes, powerful drugs and other treatments that fail to extend life and make its final chapter more painful and unpleasant. The report was called "Dying in America," and the institute — an independent organization that advises the government — has a section on its website distilling the issues for families.
After the report, Medicare said it would consider a change in policy for 2016.
"End-of-life discussions should be part of the life cycle," said Dr. Philip Pizzo, former dean of Stanford University medical school and the report's co-chair. "Beginning Medicare is one of those times, since it can be a point of awareness and reflection."
Supporters say counseling would give patients more control and free families from tortuous decisions. Even so, there are often no simple answers. Patients may want less invasive care if they believe they will soon die, but predicting when death will happen is notoriously inexact. Terminal patients can live for years, potentially complicating a choice of less intensive treatment.
Interested parties will have 60 days to comment on the new regulation before it is finalized.