Janesville35°

Sometimes slopes really are slippery

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Kathleen Parker
August 12, 2009
— Sarah Palin was right, the second time.

We do need to turn down the rhetorical heat lest we miss important issues in the proposed House health care bill.


Unfortunately, Palin’s more thoughtful comments followed a made-for-the-tabloids Facebook post suggesting that under President Obama’s health care reform, a “death panel” would kill her elderly parents and her Down syndrome baby.


Once upon a time, radical reformers could only dream of such helpful enemies. Now that the world is chasing hyperbole, we indeed risk overlooking troublesome language in the end-of-life section of the House health bill, aka Section 1233 of HR 3200.


For purposes of civil discourse, let’s assume that no one wants to kill off old people. Just as airline pilots have a primary interest in safely landing planes, even Nancy Pelosi, Harry Reid and Barack Obama will be elderly someday.


Meanwhile, we all know that America’s health care system is in dire need of repair. We also know, though we’re loath to admit, that we can’t do all things for all people. Technology that enables us to prolong life far beyond what is natural or desirable also threatens to cripple us financially.


How do mere humans balance the immense powers of “can” against the humbling moral quandary of “should?” This is partly what the bill’s end-of-life section aims to address.


Theoretically, rational people can dwell happily on the same page. Wouldn’t we all rather voluntarily make end-of-life provisions while we’re still healthy rather than burden family members, who would be reluctant (one hopes) to pull the plug on our darling selves?


Of course. In practice, however, the debate is over whether these consultations are conclusively voluntary—and the bill, to the extent it is comprehensible at all, is vague enough to cause concern.


For instance, the bill makes end-of-life consultations reimbursable under Medicare every five years, but allows for more frequent Medicare-reimbursed sessions should a person’s condition worsen. These consultations allow for the formulation of “an order regarding life-sustaining treatment.”


We can all imagine a situation when we might not want any more life-sustaining treatments—when death is imminent, for example. But we can also imagine a scenario when, feeble and ill, we might be subtly urged to forgo further life-sustaining treatment out of consideration for others. Given that “actionable medical orders” can be formulated from advance care consultations, the danger is that life-sustaining care would be precluded based on a checkmark on a document you signed five years earlier.


It would be nice to think that everything goes as intended by patients, but we can safely assume that when human error collides with bureaucratic efficiency, nightmarish enforcement scenarios could ensue. Likelihoods morph into certainties when, as this bill sets out, primary physicians aren’t necessarily involved in the consultations. As proposed, a variety of health care practitioners would do.


Not least, the bill is an enabling document that leaves great discretion to the secretary of health and human services to develop guidelines that ultimately could change the character of what seems to be offered. In just one of dozens of examples, the bill leaves it to the secretary to develop “quality measures” on end-of-life care and advanced care planning.


What might such quality measures look like? Who knows? But other documents floating around hint at what the secretary might consider.


One is a 2008 Rand Corp. report, “Advance Directives and Advance Care Planning: Report to Congress,” which suggests mechanisms by which poor “advance care planning” could be viewed as “medical error,” otherwise known as malpractice. While it’s unclear what direction “quality measures” might take, the bill could allow the government to require Medicare providers to encourage end-of-life consultations—or risk being penalized in their compensation or in their ability to participate in the Medicare program.


Beyond the jargon, of course, the real issue is that people instinctively (and correctly) fear bureaucracy—especially in matters of life and death. When it takes 1,017 pages of mostly incomprehensible language to MapQuest the way we live (and die), people have a right to demand clarity.


A simple amendment to HR 3200 would do much to cool tempers. All that’s needed is specific language saying that these end-of-life consultations are not mandatory—either for physicians or patients—and that there would be no penalty, either in coverage or compensation, for declining to participate.


In the absence of such language, one may reasonably assume otherwise.


Kathleen Parker is a columnist for the Orlando Sentinel. Her e-mail address is kparker@washpost.com.

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