Administration Abruptly Pulls Plug on Medicare End-of-Life Counseling

Three days after enacting a Medicare regulation that would have reimbursed doctors for discussing end-of-life planning with patients during their annual checkups, the Obama administration has reversed course and withdrawn the regulation.

Although administration officials said the reason behind the reversal was that the public did not have a chance to comment on the proposal, critics of the move suspected that the administration feared the regulation would revive the specter of government "death panels" at a time when its health reform law is being challenged by Republicans.

A provision in the House version of the health reform law would have allowed Medicare to pay for patient discussions with their doctors about how much or little care they want when facing a terminal illness, offering beneficiaries a chance to learn about things like advance directives, palliative care and hospice care. The benefit would have been purely voluntary, but Sarah Palin and other opponents of health reform seized on the provision as a secret plan to euthanize elderly Americans, and the provision never made it into the final health care legislation.

While the health reform bill would have created a separate, reimbursable visit specifically to discuss end-of-life decisions, in November the Obama administration quietly added references to end-of-life planning in a final Medicare regulation that sets payment rates for thousands of physician services. Doctors would be reimbursed if their patients wished to discuss end-of-life treatment as part of an annual "wellness" visit.

But shortly thereafter, administration officials withdrew the advance care planning regulation, explaining that it should have been part of a proposed rule that had been published for public comment in July 2010. It remains legal for doctors to talk with patients during the annual Medicare visits; it's just that they can't be specifically paid for that discussion.

Politico reports that Rep. Earl Blumenauer (D-OR), the original sponsor of the House bill's end-of-life coverage provision, intends to reintroduce legislation allowing Medicare to pay for such discussions with doctors. In the meantime, patient advocates hope that the Obama administration is telling the truth when it claims the regulation's withdrawal was just a "process" issue that will be remedied.

"I don't know why they decided to pull it but this administration should make it a priority and put it back in," said Terry Berthelot, an attorney and former social worker with the Center for Medicare Advocacy. "They should not shrink away from this issue. It will really add value to the Medicare benefit."

More coverage from The New York Times and National Public Radio.

For more from ElderLawAnswers on advance directive and other health care decisions, click here.