Bureaucracy Lives!

Back when the mess that is Obamacare was working its way through the legislative sausage factory, warnings about “death panels” almost derailed the entire enterprise. There were two, somewhat related, areas of concern: (1) that Obamacare’s many cost/benefit bureaucratic boards would lead to explicit health care rationing; and (2) that doctors paid to “counsel” elderly and dying patients about end-of-life treatment would actually pressure them to refuse expensive treatments. Owing to the lack of popular trust, the end-of-life counseling provision was dropped to grease the way for Obamacare’s final passage.

Now, the proposal is back in both the House and Senate, with bipartisan support. The Care Planning Act of 2013 is the most far-reaching of the bills. Supported by the AARP and sponsored by Senators Mark Warner (D-Va.) and Johnny Isakson (R-Ga.), the bill ostensibly aims to compensate medical providers who accept Medicare and Medicaid for participating in end-of-life treatment discussions with patients. But that’s just the tip of the proverbial iceberg.

No one is against doctors discussing end-of-life treatment options with patients. That’s part of good medical practice. But once the federal government sets the pay, it will make the rules. It won’t be enough for doctors to talk to their patients about tube feeding, cardiopulmonary resuscitation, and the like. If they want to be reimbursed, doctors will have to structure the conversations in the way the government instructs.

Ever wonder why the health care bureaucracy is becoming so byzantine and sclerotic? This bill—meant to encourage conversations—is 46 pages long. It would create a Care Planning Advisory Board, an “expert” panel of 15 members, three appointed by the president and the remainder by the four partisan leaders of the House and Senate (three apiece). Imagine the patronage opportunities!

Typical of how such boards are composed, the experts are to be selected from among every conceivable constituency:

Patient advocacy groups? Check.

Older patients? Check.

Individuals with cognitive or functional impairments? Check.

Family caregivers? Check.

Hospice providers? Check.

Researchers, ethicists, faith communities, and health care facilities? Check, check, check, and check.

Among its other duties, the care planning board will advise the Health and Human Services secretary about how to “assure that individuals with advanced illness receive person- and family-centered care.” The board will also investigate and recommend ways the government can ensure that qualified patients “develop a treatment plan that is formed around their goals, values, and preferences, that is informed by research on disease trajectory.” Not only that, but the board’s proposal is expected to ensure that care plans are “realistic, actionable, and concrete.”

And what expert government advisory board has ever been created that wasn’t required to “develop quality measures” to enable providers to send data back to the bureaucrats for the requisite bean counting. Also, the board will help the government “develop and promote best practices in communications about advanced illness between providers, individuals, and family caregivers in different settings, including acute care hospitals.” Good grief.

Since patients can only receive paid counseling—“once in each 12-month period”—the bill establishes bureaucratic hoops through which providers must jump. First, the patient must be “eligible.” That would mean, for example, having advanced cancer or late-stage diabetes, or needing “assistance with two or more activities of daily living”—or meeting “other criteria determined appropriate by the Secretary.” Translation: Still more regulations will be needed. Patients are to receive the services of a multidisciplinary “core team,” made up of a “physician or an advanced practice registered nurse, a social worker, a nurse, and a minister or the individual’s personal religious or spiritual adviser.” The core team can be expanded “when necessary” to include “a pharmacist, a licensed clinical social worker, and a psychologist,” along with anyone else who meets the “requirements that may be established by the Secretary.”

One wonders: Isn’t helping patients decide on appropriate treatment already part of a doctor’s job? Moreover, hospices—covered by Medicare and Medicaid—now use the multidisciplinary approach without having been told to by Washington.

The bill also requires that the government provide “culturally and educationally appropriate training for individual and family caregivers to support their ability to carry out the plan.” Again, imagine the rule-making possibilities!

The bill purports to facilitate the creation of advance directives and care-planning consistent with patient values. Great. But what if the culturally appropriate, multidisciplinary care-giving team disagrees with the patient? Who prevails?

Not necessarily the patient. The bill specifically permits doctors to refuse to provide wanted end-of-life care based on their own “conscience,” if such refusals are allowed by state law.

End-of-life care is a crucial aspect of medical practice. And to be sure, problems exist in ensuring that all patients receive optimal care. But do we really want doctors marching to the drumbeat of memos from the secretary of Health and Human Services?

A far less centralized approach—such as encouraging continuing medical education programs and public awareness efforts by the nonprofit sector—would surely improve end-of-life care, and far less intrusively than allowing government to transform dying into a public-sector regulatory growth opportunity.

Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism and a consultant for the Patients Rights Council and the Center for Bioethics and Culture.