As the ACA Moves Forward, Focus on the Cost of Advanced Care Continues and So-called “Death Panels” Enjoy Renewed Support

By: Jaime Whitt, University of Kansas-

Actuaries for the Centers for Medicare & Medicaid Services (CMS) have estimated that more than a quarter of overall Medicare spending is dispensed on care for just five percent of the Medicare population—those that die each year.  This trend has appropriately concerned those within as well as those outside of the health care sector for some time.  During fiscal 2012, Medicare benefits paid out $536 billion, which means that approximately $134 billion was paid for the care and treatment of Medicare beneficiaries in their final days.  End of life treatment, often termed “advanced” care, is typically very expensive in nature.  A recent Journal of the American Medical Association (JAMA) study revealed that though there is a trend of more Americans dying at home, still much of our end of life care is being provided in hospital intensive care units (ICUs) where patients are often receiving aggressive care that, because of its acute setting, comes with a hefty price tag.  The study also indicates that, unfortunately, this intensive and often burdensome type of care may not actually improve quality of life or even be consistent with patients’ wishes for their own treatment.  As such, end of life care and the threatened solvency of the Medicare program have been a source of considerable debate in recent years, particularly given that the baby-boomer generation is set to inflate the Medicare-eligible population to 19.6% (up from 12% in 2000) of the total population by 2030.

Advanced Care Planning to Curb Costs

In his 2010 National Magazine Award-winning New Yorker article “Letting Go”, renown surgeon and Harvard School of Public Health professor Atul Gawande explores the difficulties and myriad costs, financial and otherwise, of the kind of poorly coordinated end of life treatment that the American health care system is generally set up to deliver.  Dr. Gawande highlights various initiatives around the country that successfully offer alternatives to the fragmented status quo and instead work to provide integrated and coordinated care to terminal patients, such as Oregon’s Physician Orders for Life-Sustaining Treatment (POLST) program and the Advanced Care Planning program at Gundersen Health System in LaCrosse, Wisconsin, Respecting Choices.  Gawande notes that such programs, which also include innovations from insurance providers such as Aetna’s 2005 hospice experiment, by allowing patients to formally discuss with their physicians and document their wishes for end of life care and treatment, often have the added effect of decreasing health care utilization and expenditures for those participating—not by cutting or limiting care, but instead by planning for it.

Physician Incentives for Advanced Care Planning

Currently, fee-for-service (FFS) Medicare does not reimburse for advance care planning (ACP) sessions with patients, which has created a perverse and backwards default payment structure whereby physicians are not incentivized to hold ACP conversations that may lead to better care and simultaneously decrease health care utilization, but instead to provide reimbursable care and continued treatment for terminal patients.  A September 2013 JAMA Internal Medicine study providing financial incentives to residents for facilitating and documenting ACP sessions with their patients indicates that Medicare reimbursement for advanced care consultations is a workable option.  In the study, compliance with documentation of patients’ end of life treatment wishes increased from 22% to over 90% over a 5-month period after the introduction of financial reimbursement and performance feedback.  Currently, it can be a financial challenge for general practitioners to provide existing care to the elderly and/or disabled population; Medicare FFS reimbursement rates are strict.  It does not seem either feasible or reasonable for providers to attempt time-consuming, meaningful ACP consultations with patients without the possibility of reimbursement for them.  From a business perspective, physicians cannot afford it.  However, from an economic perspective, American health care must.  Something has to give.

A Maligned ACA Provision Comes Back to Life:  the Rebirth of “Death Panels”

Prior to the passage of the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) in March of 2010, the health care bill contained end of life treatment provisions that would allow Medicare reimbursement to physicians for periodic ACP sessions with patients, thus paving the way to standardize such conversations for Medicare beneficiaries.  In the highly-polarized political debate over health care reform, these provisions were regrettably misrepresented as “death panels” or a form of health care rationing, which quickly forced them to be removed from the proposed legislation altogether.

United States House Representative Earl Blumenauer (D-Oregon), who originally sponsored the so-called death panel provisions of the health care reform bill, has not abandoned the fight for end of life or ACP reimbursement for physicians.  Since that original defeat, Rep. Blumenauer continues to advocate for legislative Medicare payment reform that would enable payment for advanced care treatment consultations.  He and 40 other lawmakers have introduced current proposed legislation in the U.S. House of Representatives titled the Personalize Your Care Act of 2013, which would, among other things, amend the Social Security Act to provide for voluntary, periodic ACP for Medicare and Medicaid beneficiaries and allow physicians to be reimbursed for those consultations.

Rep. Blumenauer is not alone in his efforts to bend the cost curve in end of life health care expenditures.  Other members of Congress have sponsored similar bills such as the Patient-Centered Quality Care for Life Act of 2013, which would fund research in palliative care education, including outreach programs to inform patients of their options for treatment.  In January, the Coalition to Transform Advanced Care (C-TAC) held its first national summit, which included bipartisan representation from Congress, to examine and recommend actions to improve end of life treatment in American health care delivery.  With any luck, some measure of cost reform for advanced care planning and treatment will find its way into our current health care initiatives.  Whatever that measure may entail, let us all hope that no one calls it the d-word.

Jaime Whitt is a dual-degree candidate at the University of Kansas, and is expected to graduate in 2015 with a JD from the KU School of Law and a Masters of Health Services Administration from the KU School of Medicine. Prior to that she earned a B.A. at the University of Kansas. She is a Research Assistant with the Department of Health Policy and Management in the KU School of Medicine, studying the economic impact of the ACA’s health insurance marketplaces.

The two remaining posts for the Winter 2013 Law School Legal Scholar program will run on Wednesday, January 22nd and Friday, January 24th.