SHSers, and readers of the news in general, know all about the “mandatory” end of life counseling controversy that erupted a few weeks ago concerning HB 3200. The brouhaha started on July 16, when Betsy McCaughey alleged that seniors would be required to receive counseling every five years. I first reported the issue here on the 18th, stating I couldn’t precisely tell what the bill required, because the exact nature of the proposal was impossible to discern without reference to clauses in existing law.
For nearly two weeks, the nation was roiled by the charge–with President Obama and the bill’s supporters generally quiet about what it all meant. Representative John Conyers even said that he wouldn’t read the bill because it would require two lawyers just to figure it all out!
Then, on the 29th–nearly two weeks after the argument began–the President and his supporters finally responded, claiming that the provision in question–Section 1233–merely provided that Medicare pay health care providers that offered the counseling, which I duly reported here.
At the time, I suggested four additions to the bill that would easily clear up the mess. From my post:
Regardless, if mandatory counseling is not what the president and Congress really have in mind, it would be very easy to correct any confusion:
1. Add a provision stating that the counseling is entirely voluntary–both for the patient and the medical provider. In that way, the regulations–that will be thousands of more pages–promulgated by the agencies to further the purpose of the law won’t be able to require counseling.
2. Add a provision stating that the patient will not lose benefits if he/she refuses counseling or does not sign an advance directive.
3. Add a provision that no service provider will lose compensation for not providing counseling.
4. Add a provision prohibiting the counseling from being directed toward refusing or accepting care–along the same lines of the Kennedy/Brownback bill passed last year to prevent genetic counseling of pregnant women carrying a Down baby from being directed toward abortion.
Well, now the bill has been marked up and passed out its last House Committee. And guess what? Despite the sturm and drang, the bill was not amended to make it clear that the counseling was voluntary! In fact, the language was barely changed at all. (Here is the link. Start at page 424.)
How odd. Now, I suppose that an argument could be made that such a clarification would be superfluous because the bill does not explicitly mandate counseling. However, if that is the case, what would be the harm in making it unequivocal? Indeed, if I wanted to put this controversy to rest, if I wanted to ensure that eldsters didn’t worry that they would be pressured to refuse treatment, if I wanted to direct the bureaucrats who will create the regulations implementing the general mandate of the bill–I would quickly make it abundantly clear that the end of life counseling was voluntary–as is done in a different section of the bill that would pay for home visit counseling for families with young children.
But that wasn’t done, despite all the controversy. So the question is, “Why, wasn’t it done?”
August 5th, 2009 | 6:41 pm
Obfuscation and being vague benefit those who can’t get away with saying clearly what they really want to do. Being vauge gives them wider lattitude to do what they want when they get the chance.
August 5th, 2009 | 6:43 pm
Confusion benefits those who can’t get away with saying clearly what they really want to do. It gives them wider lattitude to do what they want when they get the chance.
August 5th, 2009 | 8:24 pm
Hey Wesley! Is this your way of saying that you’re thinking about possibly throwing your hat into American Politic? :) Peace
August 5th, 2009 | 9:37 pm
Victor: The country may be daft, but its not that daft!
August 5th, 2009 | 11:13 pm
No, Wesley, we already betrayed our extraordinary daftness by electing the current occupants of the legislative and executive branches. If you ran and were elected, that would be one of the greatest signs of sanity that this country ever showed.
August 6th, 2009 | 7:02 am
“Confusion benefits those who can’t get away with saying clearly what they really want to do. It gives them wider lattitude [sic] to do what they want when they get the chance.”
That sounds pretty confusing.
August 6th, 2009 | 9:05 am
I just don’t see how anything in that link could possible be construed as making advance care planning mandatory. All I see there is a definition of what this amounts to and a statement that it will only be covered once every five years. My dental insurance says that cleanings will only be covered once every six months. Does this mean that a biannual cleaning is mandatory?
Moreover, the bill clearly states that this is an amendment to subsection (s) of Section 1861 of the Social Security Act, which you can find at http://www.ssa.gov/OP_Home/ssact/title18/1861.htm. This section of the Social Security Act is titled “DEFINITIONS OF SERVICES, INSTITUTIONS, ETC.” Subsection (s) is “Medical and Other Health Services” and is simply a list of covered services. It includes, for example
“(S) diabetes outpatient self-management training services (as defined in subsection (qq))”
Subsection (qq) then defines: “(qq)(1) The term “diabetes outpatient self-management training services” means educational and training services furnished (at such times as the Secretary determines appropriate) to an individual with diabetes by a certified provider (as described in paragraph (2)(A)) in an outpatient setting by an individual or entity who meets the quality standards described in paragraph (2)(B), but only if the physician who is managing the individual’s diabetic condition certifies that such services are needed under a comprehensive plan of care related to the individual’s diabetic condition to ensure therapy compliance or to provide the individual with necessary skills and knowledge (including skills related to the self-administration of injectable drugs) to participate in the management of the individual’s condition.” etc
Are we to infer that such services are “mandatory” since the Social Services Act does not explicitly describe them as “voluntary”? If so, the Social Security Act contains literally hundreds if not thousands of mandates concerning participants health care.
Clearly this is madness, yet such is the thinking required to maintain that the current bill would make anything mandatory.
August 6th, 2009 | 11:11 am
Taken from comments on another blog:
“it is mandatory for the doctors to provide that consultation as part of their practice and that the number will eventually become part of whether they are considered to have provided the necessary level or qualified care.
Since I doubt you have read it all the pertinent passage is Section 1233.”
So the mandate is not only for the individual, it also binds the doctor to give end of life counseling whether they believe that euthanasia is immoral or not. Much like the abortion issue – no conscienscious objectors allowed.
August 6th, 2009 | 7:32 pm
suek: Have you read section 1233? I have, twice. I do not see in it anything about mandates for either doctors or patients.
Could someone please explain what language in that section requires, or could even possibly be taken to require, patients to have this consultation, or doctors to provide it? Or is this somehow buried elsewhere in the law? I am willing to be instructed.
Why are “comments on another blog” somehow authoritative?
August 6th, 2009 | 8:00 pm
HW: It’s not confusing at all; just read the words.
Wesley: That’s an idea, what Thomas A. said here just now. We really need you and Ralph Nader now. Where IS Ralph Nader? And if he caused Bush to be elected, would he please come out so that we can say THANK YOU RALPH!!! Always it’s a good thing to be saved from damned fools and Democrats. Of which what’s going on now is more than sufficient proof. Great photo of Johnny Depp. He’s a Gemini, speaking of confusing doubletalk…
August 7th, 2009 | 4:33 am
[...] Well, at least I finally found a copy of the bill on line, all 1000 plus pages of it, full of bureaucratic gobbledygook and corrections, via a blog on First Things, which points out that we seniors will indeed be mandated to receive “end of life” counseling by someone or other, and Smith points out the dangers of such v… [...]
August 7th, 2009 | 11:40 am
You may be right, Mr.Kremer. I’ll certainly try to read the 1233 again.
And perhaps you’re right about the “authority” of the comment as well. I happen to think the particular commenter is reliable, but of course, you have no way of knowing that. I posted it that way because it _was_ a quote, and I felt required to indicate as much. Next time, I’ll just provide a link.
In fact, here’s one:
http://www.americanthinker.com/2009/08/obamacare_and_me.html
Note that this MD doesn’t say that he is required to accept Medicare/aid, but if he _does_, then the rules apply. He _must_ accept the payment as designated. His choice is to apply the Medicare/aid payment for _all_ his customers, or decline acceptance of Medicare/aid patients.
Now if the system is set up so that there is no alternative form of insurance, a doctor then is required (mandated) to either accept government rules or not use the government insurance at all. Other forms of single payer insurance prohibit payment by an individual. That doesn’t leave many options. Would ours take that form? I don’t know – but since they’re following the British model, I suspect it would. They also say that private insurance won’t be affected. Riiiight.
Look at GM – they’re already rewriting the rules to do what others can’t. Old GM went into bankruptcy court. It’s done. There’s a “new” GM, but in spite of law which prohibit the assumption of the debt of a bankrupt company by the derived company, GM is being allowed to do so, which will result in the benefit of no taxes for the first few years. Think Ford will be allowed the same benefit so that it’s on equal footing? Bet not.
Would you participate in a sport where the player on the field is also an unpire and – by the way – also can make rules at will? I don’t think *I* would, and I don’t think the private health insurance companies will last long under those conditions either.
August 7th, 2009 | 11:49 am
>>Does this mean that a biannual cleaning is mandatory?>>
It could.
I had a mastectomy. I need prosthetic bras. My insurance will pay for them as long as I submit a prescription when I buy them. I called the MD I had been to last, and asked for one. I was told that he wouldn’t write a prescription because I hadn’t had a physical in the last year. The doctor doesn’t consider me a patient unless I have at least one physical each year, and therefore won’t give me a prescription for a prosthetic bra.
Please remember we’re not talking medication here. I’d consider that a medical appointment to be a legitimate requirement in that case. If I figured some way to sprout a new breast, I wouldn’t need the prescription – I’d be a multi-millionaire (besides obviously not needing a prescription).
Same way with your tooth cleaning – your dentist _could_ require that you either get them on schedule or you get dumped off the patient list and wait until an appointment is available – after the “approved” patients have their appointments. So – either you get your teeth cleaned or you find another dentist. I’d call that a mandate – even if it’s not “mandated”.
August 7th, 2009 | 2:12 pm
suek:
This is apples and oranges. You are talking about your physician’s policy, not anything that has to do with the insurance’s provisions. The doctor could have this policy even if the your insurance didn’t pay for an annual physical.
Just to be clear: I don’t think your physician was being reasonable. But that is between you and your doctor’s office.
I seriously doubt that a physician who regularly saw a patient would then drop them because they had skipped a consultation that would have been covered. But even if that happened that would be the physician’s fault, not the insurance policy’s.
August 8th, 2009 | 7:22 pm
[...] to Francis Beckwith over at First Thoughts: The Washington Post’s Charles Lane analyzes the notorious section 1233 of the House health care reform bill, the part dealing with end of life counseling. From the story: Section 1233, however, addresses [...]
August 11th, 2009 | 12:25 am
[...] Continue reading here: Secondhand Smoke — A First Things Blog [...]
August 13th, 2009 | 8:15 am
[...] Wesley Smith, who has studied the language closely and offered revisions that would absolutely rule out a mandatory interpretation. The section was revised but the ambiguity remains. Mr. Smith has written extensively on section 1233 and is the source for factual information and analysis on this subject. [...]
August 13th, 2009 | 4:13 pm
Let’s take the emotional element out of this arguement. Read section 1233 for yourself. Nothing stated is mandatory except the doctor must be paid for His/Her services. Given the best medical advice, as to the extent of an illness, the patient or the patient’s representative, makes the decision as to what proceedures he elects to receive or for go.
My father, dying of lung cancer not long ago, made it perfectly clear, he wanted NO extraordinary measures to prolong his life (ie. machines). He understood his disease was terminal, had exhausted all his treatment options and decided to die a natural death in the dignity of the man we loved. He and we were told that he could be placed on a repirator, moved to a nursing home which would continue his life indefinately, without hope of recovery. He declined.
His doctor was intelligent enough and compassionate enough to offer hospice care. He made an informed choice, was given medication to ease his pain and quitely died 2 days later. He passed on as a man, not some vegetable artificially kept alive by technology.
Section 1233 insures we know all the facts to make an informed decision. There is nothing in there that even hints at euphenasia. In fact it prevents a doctor from placing a patient on life support if your loved one chooses not to do so.
Stop listening to political opinions, read section 1233 for yourself and then decide on it’s own merits. Doctors can offer and you can refuse. There are no death panels and you are in charge. Maybe that is what is scarring the bejesus out of people!
August 19th, 2009 | 12:47 pm
That’s sad, Robert. I don’t even know your father and I believe he would have been a man, with all the inherent dignity that entails, regardless of his condition (I’m not saying that his choice wasn’t a reasonable one in those circumstances). Why would you call him a vegetable? That’s a very derogatory way of speaking about someone to who we owe our very existence.
In any case, I agree with Wesley: if this is indeed voluntary then what is the harm in clarifying the language to prevent abuse?
August 19th, 2009 | 12:51 pm
P.S.
“He and we were told that he could be placed on a repirator, moved to a nursing home which would continue his life indefinately, without hope of recovery.”
Was that verbatim?
August 31st, 2009 | 10:18 am
[...] Trial lawyers are in greedy-rapture mode, dreaming up schemes to convince even more patients to file malpractice suits, since there’s not even a shred of tort reform in ObamaCare. The multi-million dollar abortion industry is all aflutter, as FactCheck.org has confirmed, abortions would be covered by the federal plan and also by federally subsidized private plans. Pro-illegal immigrant groups are purely salivating over Obamacare, since there isn’t a solitary provision in this bill that would require anyone signing up for benefits to prove he is indeed a U.S. citizen. And George Soros, a multi-billion-dollar special interest unto himself, will get the eugenics-lite approach he favors to end-of-life decision making. [...]
August 31st, 2009 | 11:54 am
[...] special interest unto himself, will get the eugenics-lite approach he favors to end-of-life decision making. So, what we have here, dear readers, is a gargantuan failure to communicate. The trio of Statist [...]
September 4th, 2009 | 3:53 pm
[...] and patient, and further, be required to be non-directed toward a particular choice. Yet, as we have discussed here at SHS, rather than make these changes that would prevent bureaucrats from inserting bad things into [...]
September 4th, 2009 | 5:26 pm
We should all consult the famous colloquy on the Senate floor in 1964. At that time, my hero Sen. Hubert Humphrey vehemently denied that anything in his great Civil Rights Act could ever lead to racial quotas, preferences or set-asides.
He went so far as to challenge the act’s critics.
If everything in this bill ever leads to those conclusions, “I will eat the page of the Congressional Record on which the act is printed.”
I hope good old Hubert enjoyed the meal.
When I later served in the U.S. Education Department, we got excited when we realized that we had working with us the former Senate staffer who had actually drafted a confusing passage of the law we were supposed to administer. We summoned him to the conference room and pleaded for him to dispel our confusion. “How should I know,” he said, “that section was drafted after midnight when we were rushing to adjourn.” As the cynical Bismarck said, if you love the law and you love sausages, you should never see either one being made.
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