Advance Care Planning Provision Still Alive in Reform ~ Pallimed: A Hospice and Palliative Medicine Blog

Monday, November 2, 2009

Advance Care Planning Provision Still Alive in Reform

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In the House version of the Health Care Reform Bill submitted last week, the provision for physician reimbursement once every 5 years for Advance Care Planning (also erroneously known as Death Panels) was kept in. Apparently the sound and the fury of this summer did not deter the Democrats from including it and may have even helped keep it in once all the fire died down. The provision is supported by numerous medical groups including the AAHPM, AMA and even AARP.

I am including the text as copied from HR 3200 here for posterity. (obtained from Opencongress.org) (Sorry for the long post but hey this is history here.)

‘Advance Care Planning Consultation

‘(hhh)(1) Subject to paragraphs (3) and (4), the term ‘advance care planning consultation’ means a consultation between the individual and a practitioner described in paragraph (2) regarding advance care planning, if, subject to paragraph (3), the individual involved has not had such a consultation within the last 5 years. Such consultation shall include the following:

‘(A) An explanation by the practitioner of advance care planning, including key questions and considerations, important steps, and suggested people to talk to.

‘(B) An explanation by the practitioner of advance directives, including living wills and durable powers of attorney, and their uses.

‘(C) An explanation by the practitioner of the role and responsibilities of a health care proxy.

‘(D) The provision by the practitioner of a list of national and State-specific resources to assist consumers and their families with advance care planning, including the national toll-free hotline, the advance care planning clearinghouses, and State legal service organizations (including those funded through the Older Americans Act of 1965).

‘(E) An explanation by the practitioner of the continuum of end-of-life services and supports available, including palliative care and hospice, and benefits for such services and supports that are available under this title.

‘(F)(i) Subject to clause (ii), an explanation of orders regarding life sustaining treatment or similar orders, which shall include--

‘(I) the reasons why the development of such an order is beneficial to the individual and the individual’s family and the individual’s family and thereasons why such an order should be updated periodically as the health of the individual changes;

‘(II) the information needed for an individual or legal surrogate to make informed decisions regarding the completion of such an order; and

‘(III) the identification of resources that an individual may use to determine the requirements of the State in which such individual resides so that the treatment wishes of that individual will be carried out if the individual is unable to communicate those wishes, including requirements regarding the designation of a surrogate decisionmaker (also known as a health care proxy).

‘(ii) The Secretary shall limit the requirement for explanations under clause (i) to consultations furnished in a State--

‘(I) in which all legal barriers have been addressed for enabling orders for life sustaining treatment to constitute a set of medical orders respected across all care settings; and

‘(II) that has in effect a program for orders for life sustaining treatment described in clause (iii).

‘(iii) A program for orders for life sustaining treatment for a States described in this clause is a program that--

‘(I) ensures such orders are standardized and uniquely identifiable throughout the State;

‘(II) distributes or makes accessible such orders to physicians and other health professionals that (acting within the scope of the professional’s authority under State law) may sign orders for life sustaining treatment;

‘(III) provides training for health care professionals across the continuum of care about the goals and use of orders for life sustaining treatment; and

‘(IV) is guided by a coalition of stakeholders includes representatives from emergency medical services, emergency department physicians or nurses, state long-term care association, state medical association, state surveyors, agency responsible for senior services, state department of health, state hospital association, home health association, state bar association, and state hospice association.

‘(2) A practitioner described in this paragraph is--

‘(A) a physician (as defined in subsection (r)(1)); and

‘(B) a nurse practitioner or physician’s assistant who has the authority under State law to sign orders for life sustaining treatments.

‘(3)(A) An initial preventive physical examination under subsection (WW), including any related discussion during such examination, shall not be considered an advance care planning consultation for purposes of applying the 5-year limitation under paragraph (1).

‘(B) An advance care planning consultation with respect to an individual may be conducted more frequently than provided under paragraph (1) if there is a significant change in the health condition of the individual, including diagnosis of a chronic, progressive, life-limiting disease, a life-threatening or terminal diagnosis or life-threatening injury, or upon admission to a skilled nursing facility, a long-term care facility (as defined by the Secretary), or a hospice program.

‘(4) A consultation under this subsection may include the formulation of an order regarding life sustaining treatment or a similar order.

‘(5)(A) For purposes of this section, the term ‘order regarding life sustaining treatment’ means, with respect to an individual, an actionable medical order relating to the treatment of that individual that--

‘(i) is signed and dated by a physician (as defined in subsection (r)(1)) or another health care professional (as specified by the Secretary and who is acting within the scope of the professional’s authority under State law in signing such an order, including a nurse practitioner or physician assistant) and is in a form that permits it to stay with the individual and be followed by health care professionals and providers across the continuum of care;

‘(ii) effectively communicates the individual’s preferences regarding life sustaining treatment, including an indication of the treatment and care desired by the individual;

‘(iii) is uniquely identifiable and standardized within a given locality, region, or State (as identified by the Secretary); and

‘(iv) may incorporate any advance directive (as defined in section 1866(f)(3)) if executed by the individual.

‘(B) The level of treatment indicated under subparagraph (A)(ii) may range from an indication for full treatment to an indication to limit some or all or specified interventions. Such indicated levels of treatment may include indications respecting, among other items--

‘(i) the intensity of medical intervention if the patient is pulse less, apneic, or has serious cardiac or pulmonary problems;

‘(ii) the individual’s desire regarding transfer to a hospital or remaining at the current care setting;

‘(iii) the use of antibiotics; and

‘(iv) the use of artificially administered nutrition and hydration.’.

(2) PAYMENT- Section 1848(j)(3) of such Act (42 U.S.C. 1395w-4(j)(3)) is amended by inserting ‘(2)(FF),’ after ‘(2)(EE),’.

(3) FREQUENCY LIMITATION- Section 1862(a) of such Act (42 U.S.C. 1395y(a)) is amended--

(A) in paragraph (1)--

(i) in subparagraph (N), by striking ‘and’ at the end;

(ii) in subparagraph (O) by striking the semicolon at the end and inserting ‘, and’; and

(iii) by adding at the end the following new subparagraph:

‘(P) in the case of advance care planning consultations (as defined in section 1861(hhh)(1)), which are performed more frequently than is covered under such section;’; and

(B) in paragraph (7), by striking ‘or (K)’ and inserting ‘(K), or (P)’.

(4) EFFECTIVE DATE- The amendments made by this subsection shall apply to consultations furnished on or after January 1, 2011.

(b) Expansion of Physician Quality Reporting Initiative for End of Life Care-

(1) Physician’S QUALITY REPORTING INITIATIVE- Section 1848(k)(2) of the Social Security Act (42 U.S.C. 1395w-4(k)(2)) is amended by adding at the end the following new paragraphs:‘(3subparagraph:

‘(E) Physician’S QUALITY REPORTING INITIATIVE-

‘(Ai) IN GENERAL- For purposes of reporting data on quality measures for covered professional services furnished during 2011 and any subsequent year, to the extent that measures are available, the Secretary shall include quality measures on end of life care and advanced care planning that have been adopted or endorsed by a consensus-based organization, if appropriate. Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment.

‘(Bii) PROPOSED SET OF MEASURES- The Secretary shall publish in the Federal Register proposed quality measures on end of life care and advanced care planning that the Secretary determines are described in subparagraph (A) and would be appropriate for eligible professionals to use to submit data to the Secretary. The Secretary shall provide for a period of public comment on such set of measures before finalizing such proposed measures.’.

(c) Inclusion of Information in Medicare & You Handbook-

(1) MEDICARE & YOU HANDBOOK-

(A) IN GENERAL- Not later than 1 year after the date of the enactment of this Act, the Secretary of Health and Human Services shall update the online version of the Medicare & You Handbook to include the following:

(i) An explanation of advance care planning and advance directives, including--

(I) living wills;

(II) durable power of attorney;

(III) orders of life-sustaining treatment; and

(IV) health care proxies.

(ii) A description of Federal and State resources available to assist individuals and their families with advance care planning and advance directives, including--

(I) available State legal service organizations to assist individuals with advance care planning, including those organizations that receive funding pursuant to the Older Americans Act of 1965 (42 U.S.C. 93001 et seq.);

(II) website links or addresses for State-specific advance directive forms; and

(III) any additional information, as determined by the Secretary.

(B) UPDATE OF PAPER AND SUBSEQUENT VERSIONS- The Secretary shall include the information described in subparagraph (A) in all paper and electronic versions of the Medicare & You Handbook that are published on or after the date that is 1 year after the date of the enactment of this Act.

10 Responses to “Advance Care Planning Provision Still Alive in Reform”

Eric Widera said... November 03, 2009 This is the first time that I noticed the section on physician's quality of end-of-life care and advance care planning reporting initiative. It looks like part of the focus on quality will be the "creation of and adherence to orders for life-sustaining treatment." I know there are bigger fish to fry, but is the creation of the "order" a good measure of quality? What about just having these discussions in the first place? By the way, we should also pass on to our elected officials that it is "advance care planning" not "advanced care planning". The bill has both terms in it (I know... picky, picky, picky).
Christian Sinclair, MD said... November 03, 2009 Eric, My fault on the Advanced v. Advance issue on this post. Never was a pet peeve of mine, because I really had not paid that much attention to the 'd', but know that you pioint it out it is an important difference in meaning, although techincally since making some of these decisions is somewhat challenging what about calling it 'Advanced Advance Care Planning'? :-) I too thought the QI markers were interesting and it has been something the 'death panel' advocates have pointed to as a reason that physicians will enact POLST type orders and adhere to them 'against people's wishes', just to get a 2% increase on mdeicare payments for a good QI rating on 'adherence to orders for life-sustaining treatment.' The itneresting thing is that POLST orders are not widely implemented nationwide and I expect it would take several years for that to occur. I think the definition of any quality measure should be taken very carefully because of the "law of unintended consequences"
Eric Widera said... November 03, 2009 I didn't even catch that you added a "d" too (I probably write advanced instead of advance more often than I admit - it just rolls of the tongue a little easier.) As for the quality measures - I just finished reading Keirns and Dorr Goolds article in the last edition of JAMA last night on "Patient-Centered Care and Preference-Sensitive Decision Making". It made me think about the tension between quality measures and individualized care plans. I have never found in my short career that a one-size-fits-all approach benefits our patients very much (whether it be an empiric drug cocktail for a symptom or "adherence" rates to a previously stated advance directive). Advance Care Planning should be a process, not a one time documentation. Any "adherence" quality measure needs to incorporate this process into its formula, otherwise it really does go against individualized care. Ok, I'm done being picky and I'm back to being happy about the possibility of real health care reform.
Anonymous said... November 04, 2009 I think this is great to be offered and physicians to be reimbursed for. However, I know people make the argument this is not mandatory. However, from what I am reading, it will be required. No where does it say voluntary and so one must conclude it would be mandatory. There will be more screaming about this, and at this point I would have to say, rightfully so.
Christian Sinclair, MD said... November 05, 2009 Anon, Since it does not say mandatory I would find a hard time to read mandatory into any of the wording here. The every 5 year limit is really to make sure it is probably not just tacked on to a regular visit for billing purposes too often, especially since it is not really needed. Much like Medicare limiting reimbursements for screening colonoscopies. If you don't have any signs of a bleed you don't need a colonsocopy every 6 months although there may be a few docs who would like to bill for one that often. To me the every 5 year clause reads as a firebreak to rampant abuse of billing just in case a doctor wanted to bill for advance care planning every time she asked a patient "Do you have your affairs in order?" I imagine that for many physicians learning a new billing code for something that they may do once or twice a month and for which the reimbursement level has not even been set (And I bet it will probably be set low...too low to make really worthwhile to utilize). Most physicians who see patients on Hospice dont even realize they need to add modifiers to actually get paid to see them. Eric, I just got my most recent JAMA and will have to read that article. I might have just skipped over it, so thanks!
Suzana Makowski MD said... November 07, 2009 I just finished reading an interesting series of posts on the "On Faith- A Conversation on Religion and Politics..." Washington Post blog (OnFaith: Religious Leader's Perspectives on EOLC), written by religious leaders of a wide range of faiths in response to the issue of end-of-life care or advanced care counseling and healthcare reform. - Aseem Shukla is a Hindu Urologist and political conservative and titles his post, "Die with dignity or anguish: the choice is yours." - Pamela K Taylor, co-founder of Muslims for Progressive Values writes about how EOLC counseling could have helped her family cope with the difficult and courageous decisions her father made. - Willis Elliott, a 92 yo Baptist Minister contemplates "Mindful living, mindful dying." - Rabbi Brad Hirschfield challenges the term "death panels" or even "end-of-life counseling: proposing that "compassion panels" or "compassion counseling" may be more appropriate. Perhaps even "Dignity counseling?" - Margaret O'Brien Steinfels, former editor-in-chief of Commonweal magazine and editor of American Catholics in Public Square provides a "reality check on our finitude." She articulates how counseling on choice enhances personal autonomy. Other contributors include a Wiccan who speaks of the sacred nature of counseling the dying, a number of secularists (including a mathematician), Deepak Chopra speaking of the potential that good care at end-of-life might provide, Gandhi's 5th grandson, Rabbi Addin Steinsalz’s differentiating preparing for death from ending life. The shared view of the sacred nature of the final chapter of life and living and dying is shared among all these traditions and the call to us in healthcare, and - I see it, with our leadership as experts in not only curing by caring and comforting into the final breath of life - to reform the care of patients facing their mortality. It is a diverse and thoughtful series, worthy of a glance. It is one of the first settings I have seen a collection of such different religious traditions on the politics of caring for the dying, choices at end-of-life and healthcare reform.
marachne said... November 09, 2009 Thank you for posting this. One thing that I am curious about, is this version specifically includes NPs and PAs and I had heard that the original language did not. I confess I never looked for myself, but I wonder if that was rumor mongering or if someone got through to the people drafting this (I know that the Oregon Nurse's Association has been very active in HCR actions here, and the our rep Earl Blumenhauer was a major proponent of getting this included. I also have another potential take on the "adherence" language. What if it refers to the whether or not, when someone has created either a document or assigned a proxy, that what is stated there is what is followed if the person is no longer able to make decisions. We know that people will be admitted to a hospital and forms, even POLST forms will be ignored because "it's a different situation now." And sometimes that is true, and somtimes it's just, for any number of reasons, wishes being ignored. As to the spread of POLST* yes, only 8 states have endorsed programs, but it looks like another 23 are developing programs. If Oregon is any indicator, widespread adoption, particularly in congregate housing, and positive responses from first responders is likely after a program is initiated. *as an aside, I like the North Carolina acronym the best -- MOST -- Medical Orders for Scope of Treatment. I think changing the emphasis that way makes it a lot easier to start the conversation.
Christian Sinclair, MD said... November 11, 2009 Marachne, The House bill does have language that allows NP's and Clin Nurse Specs to act as attending phsyicians for hospice patients as PA's had. But only where state law allows. See the AAHPM's recent letter to the WSJ regarding this issue. (and an upcoming Pallimed post!) I agree the 'adherence' language is going to be interesting to interpret. Suzana, Thanks for sharing the link. Looks like a fantastic piece. I will have to find some non-midnight time to read it!)
Cyndi Cramer, BA, RN, OCN, PCRN said... November 11, 2009 The link to the On Faith article doesn't work. Does anyone have a web address?
Suzana Makowski MD said... November 11, 2009 Sorry about the poor link. Here is a copy of the entire link: http://newsweek.washingtonpost.com/onfaith/panelists/aseem_shukla/2009/11/die_with_dignity_or_anguish_the_choice_is_yours.html Here is another attempt at the imbedded link. WaPo On Faith discussion

Monday, November 2, 2009