Final Words: Medicare End-of-Life Counseling Coverage

The article was selected​ as a Wolters Kluwer Legal Scholar winner​ and discusses how this new law was passed, what is covered, and the importance of end-of-life planning.​​​​

Medicare recently announced that starting in 2016 advanced care planning will be covered including discussions that physicians have with their patients regarding the kind of care the patient wants to receive at the end of life. Advanced-care planning, also known as end-of-life counseling, may be legal, medical, practical, psychological, or spiritual in nature. It involves discussing the choices about what kind of help a person will want and need, as well as whether to receive care at home or in an institutional setting. End-of-life counseling often includes making legal decision about wills, advanced directives, and durable powers of attorney. These conversations are vital because a “good death” can have different meanings for different people. Patients commonly hope to have their end-of-life wishes followed, whatever they are, and being treated with respect while dying are common hopes.

While drafting the Affordable Care Act legislation, there were talks of reimbursing physicians for end-of-life counseling; however, the Affordable Care Act ultimately did not include such provision. The Proposed rule was published in July 2015 and received mix responses. One commentator, Betsy McCaughey, a Senior Fellow at the London Center for Policy Research, viewed the Proposed rule as enacting death panels. She stated, “[the rule is] being sold as ‘death with dignity,’ but it’s more like dying for dollars. Seniors are nudged to forego life-sustaining procedures and hospital care to go into hospice.” Others, however, praised the utility of such a rule. Joanne Kenen, a health care journalist, noted that, “with an aging population and growing public awareness that high-tech interventions are often futile at the end of life, doctors have encouraged private insurers to cover advanced-care conversations… Advanced-care doesn’t mean shunning aggressive care or specifying a ‘do not resuscitate’ order. People can also state in their care directives that they want ‘everything done.’” Despite mixed responses, some physicians already provide advanced care planning without compensation and some private insurers already cover advanced care planning.

When faced with end of life decisions, it is important to focus on living the highest possible quality of life. Dr. Diane Meier, Director of the Center to Advance Palliative Care Medicare, reminds that, “at the outset of a serious illness it’s very important to talk with patients and families about what they can expect what is the nature history of this disease course, what is the time frame.” Many individuals, however, do not have these conversations it seems. A recent poll by Kaiser Family Foundation found that about 9 out of 10 people believe doctors should be having end-of-life discussions with their patients; however, only 17 percent of the individuals polled had such conversations. Medicare, which insures 49 million elderly and disabled Americans, is in a prime position to solve this problem. Physicians previously may not have taken the time to have these important conversations because the conversations were not reimbursable. Now physicians are incentivized to take the initiative to discuss end-of-life care options and encourage beneficiaries to consider what kind of care they wish to receive at the end of their life.

These conversations are vital to patient-centered care and to carrying out a patients’ end of life wishes; however, physicians will need to do more than check a box that they had the conversation. Dr. Meier suggests that there should be documentation recording what was discussed and the patient’s wishes. Medicare will also need to implement metrics for measuring the quality and standards for the physician-patient conversations to ensure the conversations provide thoughtful advise and patients properly understand their options. Physicians will likely need education and training on the legal aspects of the end-of-life care decisions because these conversations will likely include the medical aspects of end-of-life care, including whether the individual wishes to die at home, as well as the patient’s legal options, such as creating an advance directive or durable power of attorney. Ultimately, these conversations should increase patient awareness about end-of-life care options and decrease confusion at the end of life because physicians will already know the patient’s wishes. The rule is the starting point for a health care system that will honor the goals and wishes of patients.

Kathryn Brown is a May 2017 J.D. candidate at DePaul University College of Law. Kathryn is a staffer on the DePaul Law Review, a fellow and vice-director of programming for the Jaharis Health Law Institute, and a general staff writer for the Institute’s online publication, E-Pulse. She graduated summa cum laude from St. Ambrose University in 2014 with a bachelor’s degree in political science and a concentration in international politics.​​​