Tuesday, August 11, 2009

HR 3200 and End of Life Counseling

Physicians often have quite difficult tasks to perform as regards to their patients. Some of the most difficult are those of informing parents of the impending death of a child and the dealing with families of older individuals who have failed to leave behind their wishes regarding health care. The latter task often results in the physician taking extreme measures in order to avoid potential litigation from children or other survivors resulting from may be perceived as failing to "take all measures" to save their loved one. Also concomitant with this side of the problem is the side as relates to the patient who is put through many, and often painful, procedures which add significantly to health care costs.

Many people, but not close to a majority, have living wills, powers of attorney, medical directives, and the like which dictate how far medical professional should go and when to just let the patient go in a natural manner, and perhaps with as much dignity as possible. The problem with these directives, also called advance directives, is that they are legal and not medical documents, and they often require a discussion amongst the parties in a calm and rational manner. This is often not what occurs. There are many stories relating to "pulling the plug" and the litigation related thereto.

In an attempt to move the ball forward on this issue the medical bill HR 3200 has included a section on Advance Directives. We discuss this here. At its core it is an essential step forward. Yet it places the issue in the hands of the physician who may not be the best person to address the issues with the patient if they are doing so after having advised the patient of their condition.

The section in HR 3200 amends the section of the Social Security Act, specifically Sec. 1861. [42 U.S.C. 1395x] which is a set of definitions relating to what services a physician may perform and how they may be compensated.

Now HR 3200 states:

"DIVISION B—MEDICARE AND MEDICAID IMPROVEMENTS

TITLE II—MEDICARE BENEFICIARY IMPROVEMENTS

Subtitle C—Miscellaneous Improvements

SEC. 1233. ADVANCE CARE PLANNING CONSULTATION.

(a) MEDICARE.—(1) IN GENERAL.—Section 1861 of the Social Security Act (42 U.S.C. 1395x) is amended—

(A) in subsection (s)(2)—(i) by striking ‘‘and’’ at the end of subparagraph (DD);
(ii) by adding ‘‘and’’ at the end of subparagraph (EE); and (iii) by adding at the end the following new subparagraph: ‘‘(FF) advance care planning consultation (as defined in subsection (hhh)(1));’’; and

(B) by adding at the end the following new subsection: ‘‘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.

This is a difficult task for the physician since in many ways the physician must diagnose, inform the patient, and then proceed to tell the patient about the details of an advance directive. If however this is accomplished under non life threatening situations perhaps the physician can have such a conversation. However the conversation should involve family members, and often that is where the rub occurs. The Bill does not recognize this problem, nor necessarily should it, but this is often the main concern. The Medicare patient is NOT being asked to execute a DNR, the patient is being informed and hopefully executes a document which expresses the patient's interests which the patient shares with the physician and their family. The problem is many people will just delay this process, as many people die without wills. The Bill continues:

‘‘(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 reasons 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 re sides 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 decision maker (also known as a health care proxy).

The Bill continues in a quite rational manner and expresses the intent to have the patient express their wishes. Hopefully if this is done then the issue of excess treatment and excess costs may be mitigated for fear of not adhering to the patient's unspoken wish. The problem here is that the issue related to subsequent malpractice litigation is still open. Even with a proxy, and an advance, there may be family problems and litigation which the physician may fear. The Bill had the opportunity to clearly address this but it failed. I believe that this would have made a significant improvement. Namely giving the physician a "safe harbor" from litigation by following and advance directive.

The Bill continues:

‘‘(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 stake holders 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.

There is the issue of a patient having an advance directive in one state and being treated in another and there being a conflict of laws. This has always been a problem in law and there is an immense body of law on conflict of laws. Yet since time is of the essence here was another opportunity for Congress to thread the needle but they passed. Perhaps it is just too steep a hill to climb?

The Bill continues:

‘‘(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 assist ant 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.

The above just covers procedural issues. It continues:

‘‘(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 set ting;

‘‘(iii) the use of antibiotics; and

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

The above details the advance notice and it follows generally accepted and used standards. Finally there are detaisl on payments and the like.

(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: ‘‘(3) PHYSICIAN’S QUALITY REPORTING INITIATIVE.—

‘‘(A) IN GENERAL.—For purposes of re porting 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.

‘‘(B) 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.

The strange issue here is the quality issue. We have written on that extensively and although it related obliquely to real patient care here it is just a hanging reminder that to the author's of HR 3200 the term quality seems to be purely quantitative measure and reports.

In an NEJM paper by Bloche in 2005 after the Schiavo case he states:

"Anger, denial, and other nonrational influences can lock family members into warring stances over whether to treat a devastating illness aggressively or discontinue life-sustaining measures. What is remarkable, given the intensity of the feelings at stake, is how rarely such conflicts make their way to court. It is a measure of how discreetly such squabbles are handled that we know little about how often they arise. And it is a measure of people’s character under this pressure that families usually come together to make these judgments or to honor the preferences their loved ones have expressed."

It is for this reason that one can say "Prior planning prevents poor performance"

This portion of the bill, HR 3200, is in my opinion a well written, well directed, and needed step. It will be a difficult step to take for the physicians and even more difficult for compliance. There does not appear to ban anything new or striking in this section. It contains what physicians have been seeking for many years now, yet the human factor on the patient side will be a barrier. It will have a strong cultural and psychological element. It most likely will not be achieved as quickly as one would like. It also benefits the patient, it is not a threat to any patient, it allows them to maintain control over their lives and to do so with dignity and respect.