Return of Death Panels? Reports Swirl Obama Bringing Back End-of-Life Planning

This is a RUSH transcript from "The O'Reilly Factor," December 27, 2010. This copy may not be in its final form and may be updated.

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ERIC BOLLING, GUEST HOST: Lots of news tonight, so let's get right to the top story. Are the death panels back?

Those so-called death panels are part of the original health care bill and it caused a whole lot of controversy, prompting President Obama to speak out against them.


PRESIDENT OBAMA: The rumor that's been circulating a lot lately is this idea that somehow the House of Representatives voted for death panels that will basically pull the plug on grandma because we have decided that we don't -- it's too expensive to let her live anymore. Somehow it's gotten spun into this idea of death panels. I am not in favor of that. So I just want to -- I want to clear the air here.


BOLLING: But now there are reports that President Obama is bringing back end-of-life planning with the Medicare regulation set to go into effect next week. The White House says, no, that's not true, issuing a statement blaming a law signed by President Bush. So what's really going on?

With us now, Dr. Betsy McCaughey, author of "Obama Health Law: What It Says and How to Overturn It" and joining us from New Orleans, Dr. Caroline Heldman, professor of politics at Occidental College.

Dr. McCaughey, let's start with you. I thought we were done with this. I thought we went through this, spent a lot of time talking about death panels. They weren't included in the health care bill that became law that you have right here, but they are back. Are they back?

DR. BETSY MCCAUGHEY, AUTHOR, "OBAMA HEALTH LAW": That's right. It appears that the administration is trying to achieve by regulation what they could not achieve by legislation. And, of course, it's a good idea to pay doctors to spend time helping patients through the tough decisions, wrenching decisions they may face toward the end of their life. But government should not be scripting what doctors tell patients.

BOLLING: Doctor, take our viewers through exactly what this regulation says. It allows or asks doctors, incentivizes them to discuss end-of-life issues, right?

MCCAUGHEY: Well, there's a new benefit called the once yearly "well visit" with your doctor or nurse practitioner or physician's assistant, not necessarily a doctor. And among the things that will be included: assessment of your weight and body weight, your mental capacities, whether you are at risk at depression, etc., etc., and advanced planning or end-of-life counseling.

BOLLING: Professor Heldman, do we really need to incentivize doctors to ask grandma whether she wants to pull the plug year after year after year? Isn't once enough?

DR. CAROLINE HELDMAN, OCCIDENTAL COLLEGE PROFESSOR: Well, as you -- as you bring up, Eric, it's already part of the regulation passed during the Bush administration to do it when folks join Medicare. So, this is simply offering it more consistently. And, yes, I do think end-of-life counseling is incredibly important.

BOLLING: Professor, why do you need to offer it more consistently? Don't you make a decision whether, you know, you're on life support, whether you want the doctor to pull the plug once? Or -- you know, what's really troubling is that they are going to incentivize doctors, pay doctors to do this counseling.

HELDMAN: Right. To do the counseling, not the outcome, and it's voluntary on the part of the patient. It's something that benefits families. It benefits individuals. You get to choose how you want to die. It's a wonderful benefit, and I don't know how it's possible that we're having a debate about this.


MCCAUGHEY: The reason we're having a debate is that it's not simply being offered. First of all, it's being scripted. If you look in the Obama health law section 936, the government is actually going to be creating brochures and videos.

HELDMAN: Education. They are going to be educating individuals about options?

MCCAUGHEY: Government shouldn't be making brochures and videos about these decisions. Those decisions belong…

HELDMAN: They shouldn't offer education?

MCCAUGHEY: …to others. And voluntary -- it's only voluntary if your doctor is not going to be paid less or penalized in some way if you choose not to go through that counseling or choose not to engage in advanced planning.

And the fact is that Medicare has protocols and it grades doctors and pays them based on compliance with those protocols. So, what we need to know right now is: Is the Obama administration going to pay doctors less if they don't offer this counseling and if they don't get their patients to do this.

BOLLING: Professor, at some point if you keep asking a patient, are you sure you don't want to pull the plug? Are you sure you don't want to pull the plug? Eventually, you're going to say, all right already, enough, pull the plug.

HELDMAN: That's not what this is. That's not what this is. It's simply offering it more often so that if people change their mind and want to plan for their end of life, they have that option. It's giving choice to customers.

MCCAUGHEY: It's a drumbeat -- it's a drumbeat of spend less on your care, let's let you die sooner.

HELDMAN: No. It's death with dignity. It's allowing consumers a choice.

MCCAUGHEY: That's your opinion, but not everybody who is enrolled in Medicare should have to go through hearing about that every year.

HELDMAN: They don't have to. It's voluntary. That's what voluntary means.

MCCAUGHEY: I want to know whether doctors will have to comply with this protocol in order to receive full Medicare payment, first of all. And secondly, why is the government making these videos and brochures? This should be done by churches and private groups and not the government. The government is not the expert on when or how we die.

HELDMAN: No. Doctors are.

BOLLING: Go ahead, professor. But let me turn the subject a little bit, just a touch here. Rep. Blumenauer from Oregon, Democrat, also, he put an e-mail out. This is very, very troubling. I want you to weigh in on this. The e-mail says and he wrote this to constituents and to friends: "We would ask that you not broadcast this accomplishment." Meaning that this became a regulation, and he also says, he goes on to say: "The longer this goes unnoticed -- the longer this goes unnoticed, the better our chances are of keeping it." Is this the way we want to govern in this country?

HELDMAN: Well, unfortunately, Eric, that's what people like Dr. McCaughey and others who call these death panels and misled the American public have left us with. It's rhetoric. It's not reality. The fact of the matter is this is what is good for patients. It's good for taxpayers. I want to die with dignity. Others should have that choice as well.


MCCAUGHEY: This is the most deplorable case of Washington knows best. This isn't supposed to be the job of our federal government to dictate what decisions we make toward the end our life.

HELDMAN: They are not dictating anything.


MCCAUGHEY: Yes, they were making brochures right here in the law. Oh, but then leave it to the doctor and patient to decide what's discussed. Don't provide federally sponsored brochures and videos.

BOLLING: Professor…


HELDMAN: …educational materials.

BOLLING: Hold on. Professor, whether or not this was originally brought up during the Bush administration, who cares? We spent a lot of time, a lot of effort discussing the health care law when we voted on it. We went through all the hashings, we slugged it out. You got it passed. It went through. But death panels and that end-of-life advisory board was removed from it; the discussion was off the table. All of a sudden, it's creeping back in.

HELDMAN: Well, Eric, isn't it sad it was already law and yet rhetoric caused Democrats to be so fearful that they had to take it out of the health care bill, even though it was already available to seniors. That should tell you something about how Republicans and others have been using fear tactics to scare the American public.


MCCAUGHEY: Here's the insidious agenda. This law drastically expands Medicaid 85 million people to pay for it. It's eviscerating Medicare. It's robbing Peter to pay Paul; or in this case, robbing grandma and grandpa. And that's why…

BOLLING: We're going to have to leave it there. Doctors, we appreciate your time, both of you.

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