Friday, August 14, 2009

Section 1233 of HR 3200

You can find the full text of this bill online here. The "death panel" section follows below.



(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:

‘(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.

‘(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 resides 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 decisionmaker (also known as a health care proxy).

‘(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 stakeholders 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.

‘(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 assistant 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.

‘(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 setting;

‘(iii) the use of antibiotics; and

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

(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:


‘(A) IN GENERAL- For purposes of reporting 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-


(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.


JTB said...

a bit quoted by Sarah Palin's faecbook note insisting on the death panels:

"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.

Patients may refuse without penalty, but many will bow to white-coated authority. Once they’re in the meeting, the bill does permit “formulation” of a plug-pulling order right then and there. So when Rep. Earl Blumenauer (D-Ore.) denies that Section 1233 would “place senior citizens in situations where they feel pressured to sign end-of-life directives that they would not otherwise sign,” I don’t think he’s being realistic. (source: (Palin's note on facebook:

Okay, so again: what's really being expressed here is a fear of loss of control (even if it is being expressed by people on behalf of other people they presume are afraid of this). That's important.

But why? why is this the fear? and what would address it?

Notice that the locus of the fear shifts significantly. NOW, it's not the evil Obama bureaucrat who will be dictating end-of-life discussions and options. NOW, it's your DOCTOR you can't trust, because the bill provides some kind of incentive for your doctor to initiate an end-of-life-care discussion.

Apparently, you can't trust anybody these days. Even your own doctor that you yourself chose, because he/she will sell you out in the hope of reimbursement by the government by initiating a conversation about what you'd like to happen in your end-of-life care.

trust. it's all about trust. and it seems to me that the rhetorical strategy for opposing healthcare is one which makes who you can't trust a really wide circle that includes pretty much everyone except yourself.

Keith Brenton said...

And I'm not too sure about me.

JTB said...

here's my proposal for addressing the concerns being so hyperbolically expressed.

Add a sentence that specifies that these advance care planning consultations may only be initiated by the individual and not the practitioner. Done. How hard was that. Not at all.

JTB said...

P.S. I also find it strangely inconsistent for a group of people so insistent on the point of individual choice and self-determination that they seem willing to characterize these same determined citizens as helpless putty in their unscrupulous doctors' hands. Either we need government protection or we don't, but isn't a little weird to argue that we don't need government provisions because we're self-sufficient people who want to make their own choices, and at the same time, argue that these same self-sufficient determined people need protecting from their own doctors, which is what these gov't representatives are seeking to do...?

jduckbaker said...

I guess the problem with having it able to be brought up only by the individual is that some people don't ever think about it. The ability by the doctor to ask if the person had thought of the options seems to be a valuable tool for each person who WILL die someday.
Jeff and I struggle with these end-of-life decisions now and we are in our 30s, but it is in full knowledge that we will all die one day and it is only in the hopes of taking care of the one left here that we address these decisions. Otherwise I'm content to think I'll live forever.

JTB said...

Jenn, I think you're right. And it seems to me like this is a fairly important issue that people should be encouraged to think about seriously, and act on. (And of course that's the point of including this whole section in the bill...)

But then again, it doesn't seem like a particularly threatening scenario to me to imagine my doc asking me if I've thought about end-of-life care and whether I'd like to consult about it. She's a rather nice woman after all. But I don't think we're going to make much headway in insisting this isn't smth scary (after all we're not to be trusted), so the way forward seems to be to craft an amendment that specifically addresses this concern about incentivizing your doctor to conspire with the gov't to kill you, and move on.

It means sacrificing a bit of the goal to broadly inform the public about end-of-life issues and care options, but it would, hopefully, shut down some of the deliberate misinformation in the meantime.

(I can't get over the irony of Palin's statement in her April 2008 Health Care Decisions Day announcement that "there is a lot of confusion" about this issue...yeah. And now there's more. Gee, thanks.)

jduckbaker said...

You are right. There's so much more nuance to getting things going and helping people through or around or over their fear.
I've about gotten to my overload moment when I start falling into apathy and quoting Ecclesiastes.

And Palin is just a confusion cluster. Whewie.