Will Medicare Ever Pay for End-of-Life Counseling?
Today's post was authored by FHW attorney Louis C. Szura.
The concept of the government reimbursing physicians for counseling their elderly patients regarding “end-of-life” issues (“EOL”) has, unfortunately, become more about politics than about patients. Medicare reimbursement for such counseling has almost become reality on a number of occasions, but it still seems like a distant possibility at this point.
During the extensive political debates surrounding the passage of health care reform acts, known as the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act, the divisive issue of the government reimbursing for EOL counseling claimed much of the spotlight. Although it was eventually removed from the health care reform acts, the issue is still with us today. Despite the merits of EOL counseling, it appears that the political attention the issue attracted during those debates may continue to prevent Medicare for reimbursing physicians for EOL counseling anytime soon.
EOL counseling as part of health care reform first arose in the U.S. House. Section 1233 of U.S. House, H.R. 3200. That section was entitled “Advance Care Planning Consultation” and provided for physicians to be reimbursed by Medicare for consulting with patients about advance directives, living wills, palliative and hospice care, among other EOL issues. That provision soon became a political lightning rod. Opponents of the measure repeatedly, and inaccurately, characterized the provision as government-mandated “death panels,” which would allow physicians and government employees to “pull the plug” on the elderly. Even though the reality of Advance Care Planning is much different than that, the short and frightening description of a “death panel” found traction with some of the public. Ultimately, the Advance Care Planning provision was dropped from the health care reform bill.
Although the Advance Care Planning Consultation provision was removed from the House bill, the Patient Protection and Affordable Care Act that passed both houses of Congress and was signed into law on March 23, 2010, provided a Medicare benefit for “personalized prevention plan services.” Those benefits allowed Medicare recipients to receive an “Annual Wellness Visit” by their physician at no cost to them. However, the procedures for those Annual Wellness Visits would, once again, raise the issue of EOL counseling.
After the jump - why the EOL counseling provision was ultimately dropped
On July 13, 2010, the Centers for Medicare and Medicaid Services (“CMS”) published a notice in the Federal Register of its proposed rule for defining the procedures for the Annual Wellness Visits. The proposed rule set out that the procedures for the Annual Wellness Visits would include, among other things, a consultation regarding past providers and patient history, a physical examination, detection of cognitive impairment and a determination of functional ability. The proposed rule did not mention of EOL counseling. But, the public had an opportunity to comment on the proposed rule.
During the comment period, CMS received input from health care professionals that advocated the inclusion of voluntary advance-care planning as part of the Annual Wellness Visits. Proponents cited studies that EOL counseling provided a substantial benefit to the health care system. In response to those comments, CMS incorporated voluntary advance-care planning as part of the Annual Wellness Visits into its final rule that was published on November 29, 2010. That final rule was set to take effect on January 1, 2011.
However, in late December 2010, the idea of Medicare reimbursing physicians for “advance care planning,” even if it was voluntary and part of an annual visit, found the national spotlight once again. The New York Times and other national media reported on the inclusion of EOL counseling in CMS’ final rule. Once again, opponents decried the return of “death panels.” The stories about the CMS final rule also raised the issue of whether CMS was trying to slip something into the health care regulations similar to a provision that had been hotly debated and rejected by Congress. In addition, questions were raised whether the version of the final rule had been sufficiently open to public comment. Four days after the final rule became effective, its repeal was announced.
Of course, CMS has the ability to publish another notice of a regulation rule that would include EOL counseling, such as voluntary advance care planning, and allow the public to comment on that proposed rule. However, in light of the divisive history of Medicare-funded EOL counseling and the current political climate in which the health care reform acts have been the subject of constitutional, funding and repeal challenges, it seems unlikely that the administration will revive the idea of government-funded EOL counseling.
Unfortunately, one thing noticeably absent from the debate about Medicare-funded EOL counseling is its benefit to the patient and the health system.
