Death Panels and the American Enterprise Institute

The American Enterprise Institute just came out with a new paper in its AEI Outlook Series: "The Living Truth About 'Death Panels'"  by Scott Gottlieb and Elizabeth DuPre. It's an interesting read, and makes some valid points. Here's the AEI's summary of the paper:

The controversy over aspects of the House health care legislation that have been inappropriately equated with "death panels" has obscured the real problems with these provisions. While equating these proposals with death panels is a careless exaggeration, the legislative language about end-of-life counseling is disturbing because of the intrusion it represents into patients' discretion and the way doctors practice medicine. The provisions are needlessly prescriptive, and they invite the government into private and complex health matters. Proponents believe these policies can save substantial money, but this will not occur. Congress can fix the problem by simplifying the legislation and making the principal goal ensuring patients' autonomy and providing high-quality care at the end of life.

Key Points in this Outlook:

• The end-of-life provisions in HR 3200 were not an eleventh-hour endeavor, but the product of longstanding political concern over the costs to Medicare for patients with terminal illness.
• The accusations that the bill contains provisions to create money-saving "death panels" are factually incorrect. But the provisions are based on an economic premise that they can help save significant money on end-of-life care, which is also incorrect.
• The inclusion of these measures represents a troubling intrusion into medical practice.
• The provisions are unnecessary. Doctors can already receive compensation for providing end-of-life counseling. The provisions also usurp traditional state prerogatives and may actually discourage doctors from providing counseling.
• Congress can fix the end-of-life provisions by making them voluntary and general in scope.

Still, there are some significant flaws in AEI's argument.

The first are some clearly bone-headed, amazing statements that destroy the credibility of what otherwise is a biased but thoughtful argument. Here's my favorite:

Moreover, when a private insurer chooses not to cover a specific service, patients presumably understood the service fell under a noncovered category when they chose that particular insurance plan.

In what fantasy world are Gottlieb and DuPre living? First, it's darn near impossible for a patient to actually get a copy of the actual plan. (I know. I've tried.) You get, at best, a non-binding summary of what's covered and what's not. Second, there are plenty of gray areas. [A plan may not cover "experimental" procedures. But what's "experimental" to one plan may be well-established and accepted by other plans.] Third, there are tons of rules and regulations that may, in fact, exist, but aren't spelled out in those summaries. [Simple example: Sometimes a plan will cover Procedure A and it will cover Procedure B. But it won't cover both performed during the same visit.] Fourth, insurance companies have been known, on occasion, to deny coverage for services which are, in fact, actually covered by the policy.

OK. Enough silliness.

Gottleib and DuPre argue that the provisions contained in HR 3200 are far more detailed, far more prescriptive, far less flexible, than has been employed before. They say:

On the surface, the advance-care planning provisions broadly mirror smoking-cessation provisions that the Bush administration implemented in March 2005 when Medicare Part B coverage was expanded to include smoking- and tobacco-cessation counseling. Both the end-of-life and smoking-cessation measures are aimed at providing physicians with a way to bill, and receive reimbursement, for providing prespecified counseling to patients

And they may be correct, although the provisions they themselves cite regarding the smoking-cessation counseling sound pretty darn narrow to me:

Medicare will cover 2 cessation attempts per year. Each attempt may include a maximum of 4 intermediate or intensive sessions, with the total annual benefit covering up to 8 sessions in a 12-month period. The practitioner and patient have flexibility to choose between intermediate or intensive cessation strategies for each attempt. . . . Intermediate and intensive smoking cessation counseling services will be covered for outpatient and hospitalized beneficiaries who are smokers and who qualify as above, as long as those services are furnished by qualified physicians and other Medicare-recognized practitioners.

Still, let's give Gottlieb and DuPre the benefit of the doubt. What they're complaining about here isn't restricted to just health. It's found in all areas of government activity. State educational testing standards (for instance, Virginia's Standards of Learning) are in part a reaction to government promising one thing (higher educational standards) but with no accountability or measurability. And a lot of these standards, including Virginia's SOLs, have come under fire, in large part being attacked by those who would be held accountable (the teachers).

It's a dilemma, to be sure. On the one hand, we want our professionals (teachers, doctors, etc.) to have discretion in how they approach their tasks. We assume they know more than we about their areas of technical knowledge. On the other hand, we know that our kids have been getting dumber. And we know that our health has been declining. That's particularly true, in both cases, when we compare the United States with other countries. So the public reacts: "If those professionals won't do what we're paying them to do, then we're going to demand that if they want to get paid, they'll do it our way and we'll have a way of determining if they've done it right."

Gottlieb and DuPre observe:

Language in HR 3200, for example, couples quality reporting measures to the end-of-life counseling provisions. It requires Medicare to collect "measures on end-of-life care and advance-care planning that have been adopted or endorsed by a consensus-based organization" for tracking the "quality" of care delivered by providers. "Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment." These measures create the possibility that--under a scheme in which physician pay is eventually tied to performance measures--providers could be penalized if, for example, they did not hit certain targets with respect to the number of patients they provided counseling to or if they had a large number of patients under their care opting to forgo advance directives.

Yup. That's absolutely what could happen, and it's probably what some of the drafters of the legislation intended. It's called accountability, and it's born out of frustration that more voluntary measures--whether in health care or in education--don't really achieve much. And I can understand why professionals would feel that such language is intrusive and micromanaging. But that seems to be the game we play today. (And not just in those areas. Look at campaign financing. Or financial regulation.) There are laws and regulations designed to achieve a specified purpose. Those being regulated resist and figure out ways around them. So the regulators or legislators come out with even tighter regulations, which those being regulated circumvent. And so on ad infinitum.

And as the pressure grows, those on both sides resort to simplistic (and often misleading) arguments to sway public opinion. Thus, the fear of "death panels" which even Gottlieb and DuPre comment upon: "The accusations that the bill contains provisions to create money-saving 'death panels' are factually incorrect."

Except, of course, I return to a charge I made in an earlier posting: Death panels already exist. They're housed within the insurance companies which decide--based on coverage they claim one is or is not entitled to--who will live and who will die.

Is there a solution? It's difficult to see one. At least one with our current health care structure.

'Death Panels' Fabricator Linked With Big Tobacco

The apparent developer of the term "death panels" has been linked with . . . ummm . . . one of the biggest promoters of death: Big Tobacco. Here's the report from The Raw Story. Presented below are some links to information on Betsy McCaughey, including a hilarious appearance recently on "The Daily Show."

Report: ‘Death panels’ author worked with big tobacco to scuttle health reform

By Daniel Tencer
Published: September 20, 2009

The person credited with inventing the “death panels” claim about health care reform worked with tobacco giant Phillip Morris to railroad health care reform in the Clinton administration, Rolling Stone magazine reports.


In an article in the magazine’s October 1 issue, not yet available online, writer Tim Dickinson reveals that Phillip Morris “worked off-the-record with … writer Betsy McCaughey as part of the input to the three-part expose in The New Republic on what the Clinton plan means,” Rolling Stone reports.

McCaughey, a conservative columnist and former deputy governor of New York, penned a 1994 article in The New Republic that was credited with helping to kill the Clinton-era health reforms. As RS noted, the magazine later retracted the story. And The Atlantic magazine ran a story in 1995, entitled “A Triumph of Misinformation,” debunking McCaughey’s arguments at TNR.

Now McCaughey appears to be playing a pivotal role in efforts to shut down this year’s health reform efforts. ABC News credited McCaughey earlier this summer with being the person behind the “death panel” falsehood, when she said in a July appearance on the radio program The Fred Thompson Show that the health care reform effort was “a vicious assault on elderly people, all to … cut your life short.”

In that interview, McCaughey asserted that senior citizens would have to face “death panels” to determine their worthiness to continue living every five years.

Last month, Gawker blogger Pareene listed off a number of McCaughey’s more questionable assertions surrounding the health care debate, including her claim in a New York Post article that Dr. Ezekiel Emanuel, brother of White House Chief of Staff Rahm Emanuel, wants doctors to forego the Hippocratic oath and focus on “social justice” rather than healing patients. That article was entitled “Deadly Doctors.”

Susie Madrak, in her blog at Crooks and Liars, cites key parts of the Rolling Stone article:

[W]hat has not been reported until now is that McCaughey’s writing was influenced by Phillip Morris, the world’s largest tobacco company, as part of a secret campaign to scuttle Clinton’s health care reform. (The measure would have been funded by a huge increase in tobacco taxes.) In an internal company memo from March 1994, the tobacco giant detailed its strategy to derail Hillarycare through an alliance with conservative think tanks, front groups and media outlets. Integral to the company’s strategy, the memo observed, was an effort to “work on the development of favorable pieces” with “friendly contacts in the media.” The memo, prepared by a Phillip Morris executive, mentions only one author by name:

“Worked off-the-record with Manhattan [Editor's note: At the time, McCaughey was a fellow at the Manhattan Institute] and writer Betsy McCaughey as part of the input to the three-part expose in The New Republic on what the Clinton plan means to you. The first part detailed specifics of the plan.”

McCaughey served as lieutenant governor of New York from 1995 to 1998, under Republican Governor George Pataki. She recently resigned from the board of directors of Cantel Medical Corporation, saying she didn’t want her involvement with the firm to color her credibility on the health care reform debate. But many observers say the resignation was in reaction to an unfavorable appearance on Comedy Central’s The Daily Show.

Some misrepresentations--and the people who promote them--seem to be like cockroaches. No matter how many times you step on them, no matter how many times you spray them, they always seem to come back.

Here's more on Betsy McCaughey:

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Betsy McCaughey Pt. 1
www.thedailyshow.com
Daily Show Full Episodes Political Humor Healthcare Protests

Wikpedia on Betsy McCaughey

Gawker posting

Mark Ambinder posting on The Atlantic site

Betsy McCaughey resume

Sarah Palin's "Death Panels" Already Exist

Did we really--really--almost place Sarah Palin one heartbeat away from the Presidency? Nah. It must have just been a nightmare. Kind of like Dorothy's visit to Oz, but without the beauty. Let's consider Ms. Palin's August 7 posting on Facebook.

As more Americans delve into the disturbing details of the nationalized health care plan that the current administration is rushing through Congress, our collective jaw is dropping, and we’re saying not just no, but hell no!

The Democrats promise that a government health care system will reduce the cost of health care, but as the economist Thomas Sowell has pointed out, government health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care. Such a system is downright evil.

Health care by definition involves life and death decisions. Human rights and human dignity must be at the center of any health care discussion.

Rep. Michele Bachmann highlighted the Orwellian thinking of the president’s health care advisor, Dr. Ezekiel Emanuel, the brother of the White House chief of staff, in a floor speech to the House of Representatives. I commend her for being a voice for the most precious members of our society, our children and our seniors.

We must step up and engage in this most crucial debate. Nationalizing our health care system is a point of no return for government interference in the lives of its citizens. If we go down this path, there will be no turning back. Ronald Reagan once wrote, “Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we’ll ever see on this earth.” Let’s stop and think and make our voices heard before it’s too late.

Sarah, oh Sarah! Where to begin? Maybe with the wide-quoted statement: "The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care."

Tell me more, oh Sarah, about this death panel. So they'll be bureaucrats, and not, say, Presidential appointees. That suggests they'll come from the Executive branch of government, rather than legislative or judicial. Probably drawn from an agency like Health and Human Services. Except how could you create a "death panel" from an agency with "Health and Human Services" as its name? Seems like a name change is in order, though "Disease and Human Suffering" might not go over so well. Still, if the pro-abortionists are "Pro Choice" and the anti-abortionists are "Pro Life" (hey, both sound great!), someone certainly can come up with a name that'll get support. No, no. An even better example: The USA PATRIOT Act. Sounds so, umm, patriotic. That's actually an acronym for "United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act." Pretty much decimated large parts of the Constitution, but it sure sounds great.

So, let's come up with a name. Hey, I've got it! The "DIGNITY and PEACE" Panel. Don't you love it? Dignity? Peace? Perfect! But let's see what the acronym is: Death Is Growing Near In The Young Person, Elderly, Aged, Crippled Everywhere.

OK, let's try to get serious again. And here, Sarah, you throw out a non-sequitor to beat all non-sequitors. You observe (correctly, as much as it may pain me to agree with you) that "Health care by definition involves life and death decisions." And you fear government death panels making those decisions. Fair enough. But who makes them now? The kindly, generous insurance companies? I feel better already. The pharmaceutical companies with their pricing and distribution strategies and policies? Doctors who are willing to treat when they're paid to do so, but may not even give you a moment if you wish to discuss a non-reimburseable topic (such as, umm, living wills or end-of-life decisions).

The life and death decisions are already being made. Sometimes through health care. Sometimes by the deprivation of care. It's happening today. It will continue to happen. We're not living in an idyllic era that's being threatened by Obama's death panels. Those death panels--as you might call them--already exist. They're at the pharmacy with pills that cost more than their weight in gold. They're at the other end of the phone line when an insurance company denies a claim. They're in your doctor's office when the first appointment you can get for a potentially life-threatening condition may be three months from now.

I'm no fan of government bureaucracy, nor am I an advocate for it. But let's get real. Death panels already exist.