Bill in Congress to Prevent Use of Federal Taxes For “Advance Care Planning Sessions” in Medicare

By Jennifer Popik, J.D., Senior Legislative Counsel
National Right to Life Committee’s Robert Powell Center for Medical Ethics

bias-against-life-preserving-2015Congressman Steve King has introduced a bill, H.R. 3251, to prevent implementation of the Obama Administration’s controversial proposed rule to pay doctors under Medicare to regularly discuss with senior citizens whether they should  agree to forego life-saving medical treatment in so-called “advance care planning.”

NRLC is calling on concerned citizens to use the August Congressional recess to urge their member of the House of Representatives to co-sponsor the proposed legislation

In March 2015 the National Right to Life Committee (NRLC) issued a report documenting the pervasive use of distorted, unbalanced, and often factually inaccurate materials to “nudge” patients to agree to premature death, thus reducing health care spending.

During the debate over the enactment of Obamacare, there was considerable controversy over the inclusion in an early version of the bill of funding for health care providers to be paid to conduct “advance care planning” for patients under Medicare.

Advance care planning refers to counseling potential patients on deciding when to accept or reject life-preserving medical treatment and advising on legal documents embodying that decision.

The provision was not ultimately included in the enacted legislation because of an outcry by many who feared it would be used to push people into agreeing to forego expensive health care.However, on July 8, 2015, the Obama Administration’s Center for Medicare and Medicaid Services (CMS) , relying on executive authority, issued a proposed regulation, revived the provision (to take effect January 1, 2016).

Accumulating evidence should intensify, rather than calm, the well-founded fears of older people and those with disabilities that in practice government-funded and promoted planning sessions are likely to be less about actually discovering and applying their own wishes than about nudging them to accept premature deaths.

Although many advance care planning proponents give lip service to honoring individual preferences, in practice its pervasive focus is to ‘nudge’ patients to agree to forego life-saving treatment and even assisted feeding through the use of unbalanced, distorted, and even inaccurate information. Advance care planning is openly promoted as a means of slashing health care spending.

As noted above, National Right to Life is calling on constituents to urge Congressional Representatives to co-sponsor H.R. 3251 . You can easily do this online.

Only a sustained and informed outcry can now prevent  taxpayer dollars from being used to fund sessions that typically will serve to steer senior citizens away from treatment they would have otherwise want.

Far from opposing the concept of advance directives concerning treatment, the National Right to Life Committee provides a ‘Will to Live’ version on /medethics/ and supports alternatives that provide truly informed consent to decisions about medical treatment. But we must fight the tax funding and promotion of advance care planning counseling that cannot be adequately monitored for bias and that typically is less about discovering and applying patients’ own wishes than about pushing them to accept premature death.

The Powell Center’s a report, “The Bias Against Life-Preserving Treatment in Advance Care Planning.”

That report cites a 2013 Health Affairs article entitled “Decision Aids: When ‘Nudging’ Patients to Make A Particular Choice Is More Ethical Than Balanced, Nondirective Content,” which gave this advice on how to get people with prostate cancer to agree not to have costly surgery:

[I]f incontinence and impotence are presented as plainly stated–that is, with no detailed description of these risks– men with early-stage prostate cancer may be swayed toward the option of surgery. If instead those possible effects of surgery are presented vividly via personal stories, men may be swayed away from the surgery option.

The Powell Center report gives multiple examples of advance care planning materials in widespread use that violate the principle of informed consent by selectively presenting facts in a distorted and unbalanced manner to “nudge” unwary patients to reject cardio-pulmonary resuscitation (CPR), IV fluids, and medically assisted feeding. Other advance care planning materials, it documents, describe disabilities and illnesses in an inaccurately repugnant way so as to induce people to agree that a low “quality of life” is not worth living.

The Powell Center report notes that providers of advance care planning materials to health insurers frequently tout the money it saves them. For example, to implement an advance care planning program Aetna hired the “Center to Advance Palliative Care,” which proudly reported that the result of its efforts was an average reduction of more than $12,000 annually in benefits for senior citizens covered by the insurance company.

The Powell Center report concludes, “Significant safeguards would need to be incorporated in any governmental program promoting . . . advance care planning in order for [it] to be truly protective of the values and intent of patients, and to ensure they are not pressured into rejecting treatment against their wishes…all in the name of cost-savings.” The proposed rule would give a blank check to use tax funds for advance care planning without any safeguards against the widespread bias against choosing life-saving that is tragically so pervasive.

Please contact your representative to urge him or her to co-sponsor this vital legislation to protect vulnerable older people from being pressured into acquiescing in premature death!