End of life counseling

What does the proposed health plan have to say about end of life counseling?

Washington Post's Charles Lane on Section 1233, Advance Care Planning Consultation:

from Volokh Conspiracy by Kenneth Anderson

Columnist Charles Lane - full disclosure, an old friend and a journalist who I have admired going all the way back to his Central America days in the 1980s - has a striking piece in today's Washington Post, "Undue Influence: the House Bill Skews End-of-Life Counsel."

About a third of American adults have some form of living wills, advance care directives, and so on, but, notes the column:

When seniors who don't have them arrive in a hospital terminally ill and incapacitated, families and medical workers wrestle with uncertainty — while life-prolonging machinery runs, often at Medicare's expense. This has consequences for families and for the federal budget.

Enter Section 1233 of the health-care bill drafted in the Democratic-led House, which would pay doctors to give Medicare patients end-of-life counseling every five years — or sooner if the patient gets a terminal diagnosis.

On the far right, this is being portrayed as a plan to force everyone over 65 to sign his or her own death warrant. That's rubbish. Federal law already bars Medicare from paying for services "the purpose of which is to cause, or assist in causing," suicide, euthanasia or mercy killing. Nothing in Section 1233 would change that.

The actual text of section 1233 can be found here via Thomas, the Library of Congress data base (if the link doesn't get you to section 1233, search the data base using H.R. 3200, then go to section 1233). But as the column goes on to point out, the bill creates an undue conflict of interest for doctors. It is not just, as Lane says, that Section 1233 "addresses compassionate goals in disconcerting proximity to fiscal ones." (Mickey Kaus has made this same point.) The column raises a much more specific concern and conflict of interest for doctors:

Though not mandatory, as some on the right have claimed, the consultations envisioned in Section 1233 aren't quite "purely voluntary," as Rep. Sander M. Levin (D-Mich.) asserts. To me, "purely voluntary" means "not unless the patient requests one." Section 1233, however, lets doctors initiate the chat and gives them an incentive — money — to do so. Indeed, that's an incentive to insist.

....

In one sense, in other words, section 1233 can be understood as a Nudgy move to reset the default rules. The question then becomes, is it merely trying to set the default rules for addressing a topic that people would rather skip addressing - end of life issues, living will issues, health care directives - or is it a nudge for getting people, including ones now terminally ill, to shift their social default settings on whether or not to consume expensive resources, while putting it in the context of seemingly making your own decision about it? They are, clearly, two quite different propositions - and both of them amenable to the Nudginess setting of default rules analysis and, depending on how one sees it, either "facilitation" or "manipulation."