CMS reverses plans for advance care planning

Media attention led to change

President Obama's administration reversed its decision to revise a Medicare regulation to include paying physicians to discuss good advance care planning with patients. This decision is a setback from an ethical and health care perspective, according to advocates for end-of-life planning.

"The administration was reluctant to do anything that might cause an uproar," says Paul Malley, president of Aging with Dignity, a nonprofit organization based out of Tallahassee, FL. "The unfortunate side effect is it has become more difficult to talk about good end-of-life care, palliative care, and hospice care."

The Centers for Medicare and Medicaid Services (CMS) first proposed including the language about advance care planning in a proposal, published in the Federal Register on Nov. 29, 2010. CMS defined the new annual wellness visit, providing personalized prevention plan services as provided by the Patient Protection and Affordable Care Act of 2010. The change was set to take effect on Jan. 1, 2011. But CMS withdrew the few sentences pertaining to this issue shortly after the new year on the heels of a December 2010 article in The New York Times about the proposed policy change, Malley says.

In an amendment to payment policies under the physician fee schedule, published in the Federal Register on Jan. 10, 2011, the Department of Health and Human Services (HHS) wrote that HHS had added the advance care planning proposal in response to requests for its addition by several people who responded during the comment period of the proposed rule, published on July 13, 2010.

"The proposed change added advance care planning to a list of things a physician should talk about at an annual Medicare wellness check-up," Malley says. "The only thing this did was say the physician should ask about advance care planning each year at the check-up. It was made voluntary and one of the many things on a checklist of topics to cover."

Unlike the eight pages of language inserted in an early version of the health care reform bill, which would have given physicians specific instructions about an advance care planning conversation, this simple new guideline was written to be flexible, Malley says.

The original health care reform act wording gave birth to the talk of health care death panels in the summer of 2009, says Jon Radulovic, vice president of communications at the National Hospice & Palliative Care Organization (NHPCO) of Alexandra, VA. "Those were unfortunate rumors that spun out of control," he says. "That language was taken out of the health care legislation, and we were disappointed by that."

There is nothing about advance care planning that equals death panels, Radulovic adds. Last fall's proposed change by CMS simply would have allowed physicians to bill for advance care planning, he says.

"It's not a new idea," Radulovic says. "This new rule just would have made the opportunity for the patient to request advance care planning as part of the annual check-up, making it more widely available."

However, when media and online blog reports stirred up the issue, returning to the fears of death panels, the Obama administration took out the regulation, he adds. "I think the White House was so apprehensive about seeing a firestorm of discussion about death panels again that they pulled back on what would have been a Medicare guideline," Radulovic says. "It was a defensive move which we were disappointed about."

HHS rescinded the provision involving voluntary advance care planning because of the wide range of views on this subject held by a broad range of stakeholders, including members of Congress, according to the Jan. 10, 2011, amendment. In that amendment, CMS Administrator Donald M. Berwick wrote, "While we believe that we acted within our authority in including voluntary advance care planning as an additional specified element of the new annual wellness visit in the final rule, it has become apparent that we did not have an opportunity to consider prior to the issuance of the final rule the wide range of views on this subject held by a broad range of stakeholders."

If the Medicare wording had continued to encourage end-of-life discussions between community physicians and patients, the best case scenario might have been a gradual reduction in patients entering the emergency department (ED) and intensive care unit (ICU) who have given no thought to end-of-life planning, Radulovic and Malley say. These types of situations in which patients are dying while on life support are among the most common cases brought to hospital ethics boards for review or ethics consultation, they say.

As it is now, physicians still can bring up end-of-life issues with patients or refer them to other organizations, such as Aging with Dignity. The organization distributes the widely used "Five Wishes" advance care planning toolkit. Also, there is free, downloadable, state-specific advance care planning information available through NHPCO's Caring Connections.

However, there is no financial incentive for physicians to ask patients about their advance care planning at annual visits. Hospitals are required to ask patients about their advance directives when people are admitted to the hospital, but this conversation often takes place at the moment of personal crisis when families and patients might feel pressured and overwhelmed, Malley says. "The goal is to have the conversation further upstream and talk about it with physicians before there is a crisis," he says.

Some physicians, such as oncologists, increasingly are making end-of-life talk a part of their practice, but more buy-in among community doctors is needed, he adds. It will take broader physician buy-in to move the field to the next level where most patients have given advance care planning some serious thought and have completed forms that express their wishes, Malley says.

"We put the focus on what good care means to the patient, and it's important to let people know we're not just talking about feeding tubes and ventilators," he says. "Good care means keeping a person comfortable and honoring their dignity."

This focus should be a part of the natural conversation between physicians, hospital nurses, social workers, and patients, he says. "This is a great opportunity for collaboration between hospitals and physician groups," Malley says. "If doctors feel empowered to have these discussions with patients and their families, that's the best scenario."