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.

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.

Behind The Walls

The one-story building is tucked off a busy road in a residential area of Annandale about 12 miles from downtown Washington, D.C. Most people don't notice it as they pass by to a nearby church, grocery store, or restaurant, and that's the way it was intended.

You can drive up to the building, but getting inside is another matter. Outside, there's an electronic keypad, with the combination changed at random intervals. Once inside, visitors are faced with another secured door and another electronic keypad. Only if the current correct combination is entered both times can a visitor enter.

An entering visitor first notices the smell. It's not distinct--not clearly feces, not clearly body odor, not clearly cleaning liquid. But it's a sour, pervasive scent. The air itself is warm and moist. The next thing a visitor may notice are the cries in the distance: "Let me out of here." "I want to go home."

Security here is two-way. Those inside need to know the combination to exit, and none does. They're here for life. All but the front entrance is also surrounded by a tall security fence. The only telephones inside are under the control of security personnel. The meals are nutritionally adequate, but tasteless. They're usually accompanied by a small cupful of pills. Some behind the walls try to hide the pills, either in their hands, or in their mouths. But the security personnel are experienced in searching the hands and mouths for the secreted pills.

Each room has a bed and a dresser. Each also has a window and a toilet and sink. But they don't have baths or showers. Those are down the hall, and used only with supervision.

What is this place? A prison, perhaps? Well, maybe, in a manner of speaking. It's an "assisted living facility." Specifically, a facility for those with Alzheimer's. Oddly, though, many of those behind the locked doors don't seem to be declining mentally. Bring a soda to one and she remembers it for months. She'll tell you about her home nearby, and how she raised her family there. Talk to another one at dinner and she'll tell you about her service in World War II, and what her children and grandchildren are doing now. Now, it's true that most probably are better off with "assisted living." Some have difficulty dressing or bathing themselves. Most probably wouldn't remember to take their pills. Few of them would be able to drive safely.

But they didn't anticipate spending their final years in a prison. Ask them.

Some ended up here after "successful" extreme medical interventions that saved their lives. Others continue living here with such medical interventions occurring periodically.

And understand: This is a good facility. Good in that the residents aren't mistreated. Good in that the residents aren't uniformly drugged into a near comatose condition, making it far easier for the attendants to manage them. Good in that the attendants all speak English, though for most it's their second or third language. But "good" costs money--roughly $6,500 a month, plus some extras. Sometimes it's paid for by long term care insurance. Sometimes by the resident's assets. Sometimes by the children or relatives.

And here we're talking about assisted living facilities. Not nursing homes. That's another matter--one that deserves its own discussion.

But the issue here isn't one of cost. It's quality of life. It's respect for individual dignity. And it's respect for the wishes and desires of those who must face difficult decisions about their remaining years.

Ask yourself whether that's how you'd like to spend your remaining years. There's no correct answer. For some, it'll be "yes." For others, it'll be "no." For some, it'll be "I'll cross that bridge when I come to it."

Then visit one or more of these facilities. Talk with the residents. Listen to what they say.

In today's health care debate, there's no shortage of so-called and often self-proclaimed "experts" speaking for others. Granted: There are enormous complexities surrounding the health care debate, as well as many philosophical chasms. But when it comes to the elderly and how they wish to spend their final years--and even their definition of "final years"--those chasms shrink and those complexities simplify. Just talk with them. Then listen.