Obama Seeks “Death Panels” by Regulation

The New York Times now reports that exactly contrary to its earlier claims, the Obama administration is now quietly seeking to sneak back in by regulation the provision of “end-of-life planning” (“death panels”) that were dropped from the Obamacare bill that was signed into law. The Times article reports that the regulations have been issued by Dr. Donald Berwick, administrator of the Centers for Medicare and Medicaid Services, who is described as “a longtime advocate for better end-of-life care.”

When a proposal to encourage end-of-life planning touched off a political storm over “death panels,” Democrats dropped it from legislation to overhaul the health care system. But the Obama administration will achieve the same goal by regulation, starting Jan. 1.

Under the new policy, outlined in a Medicare regulation, the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment.

Congressional supporters of the new policy, though pleased, have kept quiet. They fear provoking another furor like the one in 2009 when Republicans seized on the idea of end-of-life counseling to argue that the Democrats’ bill would allow the government to cut off care for the critically ill.

The final version of the health care legislation, signed into law by President Obama in March, authorized Medicare coverage of yearly physical examinations, or wellness visits. The new rule says Medicare will cover “voluntary advance care planning,” to discuss end-of-life treatment, as part of the annual visit.

Under the rule, doctors can provide information to patients on how to prepare an “advance directive,” stating how aggressively they wish to be treated if they are so sick that they cannot make health care decisions for themselves.

While the new law does not mention advance care planning, the Obama administration has been able to achieve its policy goal through the regulation-writing process, a strategy that could become more prevalent in the next two years as the president deals with a strengthened Republican opposition in Congress.

In this case, the administration said research had shown the value of end-of-life planning.

. . . .

Opponents said the Obama administration was bringing back a procedure that could be used to justify the premature withdrawal of life-sustaining treatment from people with severe illnesses and disabilities.

Section 1233 of the bill passed by the House in November 2009—qqqbut not included in the final legislation—qqqallowed Medicare to pay for consultations about advance care planning every five years. In contrast, the new rule allows annual discussions as part of the wellness visit.

Elizabeth D. Wickham, executive director of LifeTree, which describes itself as “a pro-life Christian educational ministry,” said she was concerned that end-of-life counseling would encourage patients to forgo or curtail care, thus hastening death.

“The infamous Section 1233 is still alive and kicking,” Ms. Wickham said. “Patients will lose the ability to control treatments at the end of life.”

As a result, Cong. Earl Blumenauer (D-OR), author of the original “end-of-life proposal,” stated the following in an email to supporters, urging them to keep the new regulations hidden from public view:

“While we are very happy with the result, we won’t be shouting it from the rooftops because we aren’t out of the woods yet. This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth. . . . We would ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’—qqqe-mails can too easily be forwarded. . . . Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response. The longer this goes unnoticed, the better our chances of keeping it. . . .”

Sarah Palin led the criticism of the “end-of-life proposal” in 2009 and Cong. John Boehner (R-OH) said that, “This provision may start us down a treacherous path toward government-encouraged euthanasia.” In response, Obama claimed that his bill would not “pull the plug on grandma.” More recently, prominent liberal economist Paul Krugman called for the use of “death panels” as a solution to the U.S. deficit.

For why government regulations, subsidies and bureaucracies should be removed from health care and competitive markets should instead be freed to operate, please see the following:

American Health Care: Government, Market Processes and the Public Interest, edited by Roger D. Feldman

Failure to Provide: Healthcare at the Veterans Administration, by Ronald Hamowy

“The Modern Health Care Maze: Development and Effects of the Four-Party System,” by Charles Kroncke and Ronald F. White (The Independent Review)

“Health Insurance Before the Welfare State: The Destruction of Self-Help by State Intervention,” by Pavel Chalupníček and Luká Dvořák (The Independent Review)

“The Anatomy of Social Security and Medicare,” by Edgar K. Browning (The Independent Review)

David J. Theroux is Founder, President and Chief Executive Officer of the Independent Institute and Publisher of the quarterly journal, The Independent Review.
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