The Many Lives Of The 'Death Panel'

It's hard to believe something called a "death panel" can have so many lives.

The Obama administration reignited the controversy over end-of-life planning less than two weeks ago with a reference to those sorts of talks in a set of regulations about annual physicals for Medicare patients. Then, as the New York Times reported today, it abruptly reversed course and deleted the reference.

But it remains perfectly legal for physicians to talk with patients during annual visits paid for by Medicare about how much or little care they want when facing a terminal illness. And it has almost nothing to do with the controversial 2010 Affordable Care Act.

In fact, the 2008 Medicare Improvements for Patients and Providers Act, which passed with bipartisan support in the House and Senate though enacted over President George W. Bush’s veto, specifically added "end-of-life planning" to the list of things that could be covered as part of Medicare’s Initial Preventive Physical Examination.

The 2010 health law then extended payment for that once-ever physical for Medicare patients to once a year.

Now clearly, the administration dropped the reference in the regulations governing the physicals and myriad other things Medicare-related for political reasons (although the official excuse is there were procedural problems). It didn't want to give Republican foes of the health law any further ammunition to accuse it of trying to "kill Granny," or, as Sarah Palin famously wrote on her Facebook page, her son with Down Syndrome.

But the end-of-life counseling provisions that were in the House version of the health law -- and subsequently dropped after a firestorm of controversy -- would have created a separate, reimbursable visit specifically to discuss that subject. The current discussion is only over whether end-of-life planning can be discussed as part of the annual visit Medicare already pays for.

And clearly, according to Jon Radulovic, Vice President of the National Hospice and Palliative Care Organization, it can be. "A doctor can always be compensated for talking about advance care planning," Radulovic said in an interview. What concerns his organization about all the back and forth, however, "is that now consumers might think there’s something suspicious about it."

Radulovic says, in fact that having a discussion with a doctor as part of an annual wellness visit makes perfect sense, "because people’s views may change over time" about what kind of care they want should they become terminally ill.

But he stresses that there's no "death panel" in such a conversation. "I don’t know why people always jump to the idea that you automatically go to discontinuation" of care, he said. "It’s an opportunity to voice that you want every intervention possible. Or something in between, which I think is what most of us want."

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