Legal Issues In the News

Medical Directives and Changes in Medicare


Are death panels coming back?

Of course not! There never were any death panels, and Medicare’s newly proposed rule change has nothing to do with death panels either.

What it does do is allow Medicare, the federal government’s health care program for older Americans, to pay physicians and other health care providers for counseling patients about end-of-life care decision-making.

There are two basic types of advance medical directives. A living will allows a person to indicate whether he or she wants life-sustaining treatment in certain situations, such as terminal illness. A health care proxy or power of attorney enables a person to designate someone to make such decisions when that person cannot do so directly.

Any adult American has the right to complete one of these documents now, but most of us never get around to this task. No big surprise there.

After all, who wants to imagine themselves in seriously ill health, and without the ability to communicate which medical treatments they want or do not want?  But that is exactly when living wills and health care proxies are needed.

Advance medical directives have been around for over 30 years now, largely as a response to the tragic case involving Karen Ann Quinlan and the removal of her feeding tube. Statutory forms for these directives are available at no charge on various websites and must be provided whenever a person is admitted to a hospital or nursing home, according to a federal statute that was enacted 25 years ago.

But studies by the Government Accounting Office and the RAND Corporation have found that a major reason why people do not prepare such documents is that doctors are not reimbursed for discussing this issue. In fact, just this past September, a nonpartisan group of medical, legal, and religious leaders recommended that health care providers be paid for such discussions, and that is what the new Medicare rule proposes to do, effective next January 1.

Actually, this rule change is more incremental than it might at first appear. Medicare already pays doctors for end-of-life care counseling if a patient is terminally ill, and President George W. Bush signed legislation that included such counseling in Medicare’s “initial physical examination” for new enrollees.

The proposed rule simply adds such counseling to Medicare’s package of benefits for persons after their “Welcome to Medicare” physical exam but before they become terminally ill.

A small change perhaps, but a very important one nonetheless.

This is Richard Kaplan.