by Craig Klugman, Ph.D.

Way back in 2009 when the Affordable Care Act (ACA) was being debated across the country, one of the more controversial elements was a section (HE 3200, Section 1233) that would provide physician reimbursement for conversations about end-of-life advance care planning. Quickly, Sarah Palin branded such a move as a “death panel” via Facebook that made discussions of end-of-life care reimbursement a taboo topic and a political third-rail. Ms. Palin stated that these conversations were about rationing care at the expense of the “sick, the elderly, and the disabled.”

Now, 6 months before the ACA was supposed to be fully enacted (some provisions of which are delayed by 1 year including the employer mandate requirement and most recently the section that limits out-of-pocket costs for patients), two senators have proposed Medicare coverage for end-of-life conversations.

The Care Planning Act of 2013 (S. 1439) argues that Americans are aging in large numbers as we live longer and healthier. At the same time, increasing age brings on a host of complicated medical problems that require complex decision-making. The bill proposes to permit physician reimbursement for face-to-face meetings between health team members and the patient (and family/decision-maker) once each year by creating an insurance billing code. The conversation may discuss information about the prognosis of illness; future decisions that may need to be made; any concerns regarding mental capacity; determining “goals of care, values and preferences;” discussions about benefits and burdens of treatment options including palliative care, aggressive treatment; and preparing advance care planning documentation.

One difference between this act and the ACA is a limit on these services to those with a serious illness (cancer; Alzheimer’s; dementia; “late-stage kidney, liver, heart, gastrointestinal, cerebrovascular, lung disease” neuromuscular disease, or diabetes; a disability that requires assistance with “two or more activities of daily living;” and a few other situations). The new act also funds a study for a national registry of advance directives and similar documents, such as POLSTS.

As one might expect in a politically divisive climate, this bipartisan bill has generated some heat. The Weekly Standard published a piece by Wesley J. Smith stating that the proposed act is an overreach of the federal government that is intrusive and trying to take over the private market of health care. This is the same argument used back in death panels—that the government would create teams of people who would ration care, decide who would live and who would die. Such a notion has been thoroughly debunked. What I cannot figure out is why a portion of the U.S. population is threatened with the idea that people should have conversations with their health care team about their future care desires so that their autonomy and wishes can be known and upheld as far as possible. Where is the threat to our well-being that physicians and other health care professionals should be paid for their time? The act will not mandate these conversations nor will it require physicians to participate. It has always been my understanding that Liberty is a founding value of the U.S. but the goals here seem to be to constrain individual choice in a sphere that does not pose a potential harm to others.

Let’s put aside the discussions of cost containment, rationing, death squads, government intrusion, number and quality of services at the end of life, all of which are important and have been hashed and rehashed. The goal of this Act, as was the intent of section 1233 of the ACA, is to give physicians paid time to talk to patients. Today, physicians are paid for doing things to patients. We reimburse for procedures, and time talking to patients is more-or-less voluntary. Perhaps it is this shift in focus from doing to patients to being with patients that concerns certain individuals and political groups. The reality is that the intent is to help honor patients and fulfill their wishes for care, not to impose care on them from an outside actor, political theory, or religious believer. This bill is a step in the right direction to improve dying, by permitting the care providers in consultation with the patient, family, and designated decision-maker to have a conversation that will increase the likelihood a patient’s end of life choices will be honored. And that is really all there is to it.