Medicare Rule Change Would Reimburse Providers for End-of-Life Discussions, Federal Legislation Waiting in the Wings

The Centers for Medicare and Medicaid will decide by Nov. 1 if it will pay for consultations between healthcare providers and Medicare recipients about the type of care they want, or don't want, as they near the end of life.

In an announcement July 8, 2015, the Centers for Medicare and Medicaid Services proposed reimbursing healthcare providers for face-to-face discussions held with beneficiaries 65 and older, or disabled, and their family members about what type of treatment they prefer to receive at the end of their lives.

Dr. Patrick Conway, CMS chief medical officer, said at the time that the proposal supports individuals and families who want the opportunity to do advance care planning with their physicians and their team of caregivers.

"We think those discussions are an important part of patient- and family-centered care," he said.

CMS accepted public comment through Sept. 8, and plans to announce a decision by Nov. 1. The reimbursement would start on Jan. 1, 2016, and apply to physicians, physician assistants and nurse practitioners, and not be limited to a certain number of consultations.

Currently, Medicare only covers such end-of-life discussions if they occur at the first patient intake session available to all beneficiaries. However, as the CMS rule proposal points out, patients "may not need these services when they first enroll."

Some health insurers have started reimbursing providers who schedule such conversations by using their own billing codes since Medicare hasn't yet adopted any. Blue Cross Blue Shield of Michigan reportedly began paying $35 on average per consultation last year, and Portland-based Cambia Health Solutions, which has 2.2 million patients in OR, ID, WA and UT, has developed a program around such conversations, along with related training.

Supporters and Detractors Weigh in

The reimbursement proposal has attracted support from a range of healthcare organizations and opposition from a few. The American Medical Association was quick to indicate that it welcomed what it called a "patient-centered policy."

"This issue has been mischaracterized in the past and it is time to facilitate patient choices about advance care planning decisions," said Dr. Andres Gurman, the group's president-elect, the day after CMS' announcement. "The AMA has long supported coverage of advance care planning and provided recommendations and input to help Medicare create a payment policy based on a full understanding of this medical service."

However, echoing the "death panels" charge directed at similar proposals in the Affordable Care Act (but cut from the final bill), the National Right to Life Committee has taken a dim view, stating that the consultations could pressure Medicare beneficiaries into refusing expensive medical treatments that might help them.

While the NRLC supports advance directives, in which patients indicate their wishes for medical treatment in case they become incapable of expressing them later, the group is concerned that cost-cutting might trump the interests of patients at their most vulnerable.

"Our concern is that in practice federally funded 'advance care planning sessions' are likely to pressure patients into rejecting treatment essential to preserving their lives in a manner they would be unlikely to agree to under conditions of truly informed consent," stated Jennifer Popik, an attorney with the group's Robert Powell Center for Medical Ethics.

In contrast, Matt Whitaker, Oregon State Director for Compassion & Choices, a nonprofit advocating expanded options for those facing the end of life, said he considers Medicare's proposed move a good first step.

"We absolutely support it. In fact, in our opinion, it doesn't go far enough," he said, adding that the lack of Medicare reimbursement has been a barrier for physicians who would like to help their patients with advance care planning.

"When we talk to them about counseling patients about end-of-life decisions, they say, 'We don't get paid for that. We would have to set up an appointment just for that.' It's time, which is always a premium when it comes to medicine," Whitaker said.

What Compassion & Choices would really like to see is Medicare making end-of-life care choices stick because, he said, advance directives aren't legally enforceable and too often a patient's wishes are not honored.

"The reaction of medicine is often treat, treat, treat, so this is a response to how the system works," Whitaker said. "An oncologist gets paid a lot more for giving chemo than talking about the side effects of chemo."

Lifting the Burden for Patients

Dr. Susan Tolle, director of the Center for Ethics in Health Care at Oregon Health & Science University and a general internal medicine physician, said that thoughtful conversations about treatment options with patients facing advanced serious illness take time and deserve dignity and respect.

"That means supporting healthcare professionals in taking the time needed for patients to be able to ask questions and to express to their healthcare team and their family what treatments they want and do not want," she said. "Knowing what the patient wants lifts a burden from those they love. It is a much heavier burden to make medical decisions for someone than it is to serve as an advocate for someone whose wishes you clearly understand and be sure those wishes are honored."

For Tolle, adoption of Medicare's reimbursement proposal would allow her to make "goals of care conversations" the purpose of a patient visit instead of being "just tucked in at the end of a visit about other health issues." Such conversations could also assist with completion of a POLST form, or Physician Orders for Life Sustaining Treatment, she said. (Oregon was the first state to adopt the POLST form, in 1995.)

"Conversations about the patient's diagnosis, prognosis and goals of treatment are the first step in completing a POLST form," Tolle explained, adding, "The Physician Orders for Life Sustaining Treatment is a way to record goals of care conversations as medical orders assure that patient treatment preferences are honored."

Aligning Federal Healthcare Policy

Legislation has been introduced in both houses of Congress requiring Medicare coverage of end-of-life care coordination and related services. In the Senate, Mark Warner (D-VA) and Johnny Isakson (R-GA) have introduced S. 1549 (the "Care Planning Act of 2015), along with four cosponsors.

In the House, Rep. Earl Blumenauer (D-OR) has introduced H.R. 1173 (the "Personalize Your Care Act of 2013) with 59 cosponsors and may update and reintroduce a similar bill before the end of this year.

Blumenauer said he has sponsored the legislation every year since 2009 to help make sure that federal healthcare policy, including both Medicare and Medicaid, keeps pace with what the general public wants.

"My interest is pretty simple," he told The Lund Report. "We see many, many people who have their wishes for what they want, how they or their family wants to be treated, and they are not put into action. Most people want to end their final days, if they know it's coming, at home or in hospice, surrounded by loved ones and in control of their faculties, yet three-quarters of us die in a hospital."

The main goal is not to save money, Blumenauer said, although he acknowledged that is a potential outcome.

"Medicare will pay tens of thousands of dollars for extreme medical interventions with little or no likelihood of success and some that might make the physical conditions of patients worse, but wouldn't pay a couple hundred bucks more for a medical provider of choice for [a patient] to understand their circumstances, understand their choices, formulate what they want to happen and make sure their wishes are respected. That has driven me crazy for years," he said.

Blumenauer would like to see a national system in place that would include end-of-life planning included in the coordination of healthcare and also be portable in case someone who makes their wishes known in one state ends up being treated elsewhere.

"That information ought to be part of electronic medical records and follow you out of your community across state lines, but there's a lot of fragmentation in our health care system and a lack of sensitivity and training on the part of hospitals and providers," he said.

He said he's waiting to see where CMS ends up going with its reimbursement proposal, adoption of which he called "a very big part to check off." Then he will decide whether to revise and reintroduce his legislation to mandate end-of-care coordination and consultation nationwide.

"It's a hard conversation, not just for families, but sometimes for medical providers," Blumenauer said. "We've got a lot of work ahead of us to make sure everybody is on the same page. It's a conversation that we need to look at as something that everybody should have."

Cathy can be reached at [email protected].

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