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updated 8/14/2009 1:38:23 PM ET 2009-08-14T17:38:23

The furious controversy over Medicare payments for end-of-life care counseling stems from Section 1233 in the health bill passed by three House committees.

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That language would amend the Social Security Act, which also governs Medicare, the federal program for the elderly and disabled. In 1990, when George H. W. Bush was president, new language was inserted in the Act (Title 18, Section 1866) which defined an "advance directive" to be "a written instruction, such as a living will or durable power of attorney for health care, recognized under State law… and relating to the provision of such care when the individual is incapacitated."

The 1990 language required that health care providers and organizations "maintain written policies and procedures with respect to all adult individuals receiving medical care by or through the provider or organization." That included things like documenting an advance directive "in a prominent part of the individual's current medical record" and providing “education for staff and the community on issues concerning advance directives."

But no provision was made to have Medicare explicitly reimburse doctors for advance planning consultations. The new House bill changes that, requiring Medicare reimburse doctors and other practitioners for consultations covering a range of information, including information about living wills and power of attorney. Here is an excerpt of the relevant bill language:

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.

‘(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).

Section 1233 goes on to describe how to apply these regulations based on state laws, what the bill means when referring to "practitioners", how often Medicare will reimburse for a consultation, the effective date of the provisions (Jan. 1, 2011), items on a physician quality reporting initiative and inclusion of language in the "Medicare & You Handbook."

© 2012 This information was reprinted with permission from KHN. Kaiser Health News is an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.

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