The Coronavirus and Advance Directives

Sometimes, the right policy can come at the wrong time. Consider an article on how the coronavirus has upended nursing homes, hundreds of which have at least one—and in many cases far more than one—case among residents.

A Politico newsletter discussing the article last Monday included an ominous blurb: “The National Hospice and Palliative Care Association has been pushing Congress to give more support to advance care planning, perhaps in the next stimulus bill.” While the advocates may have the best of intentions, discussing advance care directives in the context of a global pandemic raises serious ethical questions.

Planning for Worst-Case Scenarios

End-of-life care remains a touchy political subject. In 2009, following comments by Gov. Sarah Palin (R-Alaska) about “death panels,” she defended her characterization of Democrats’ health care effort by pointing to a provision in a House draft allowing Medicare to cover end-of-life counseling. While the controversy prompted congressional Democrats to drop the provision from the bill that became Obamacare, the Centers for Medicare and Medicaid Services (CMS) in 2015 approved regulatory changes allowing Medicare to pay physicians for end-of-life consultations with their patients.

In most cases, talking through options and allowing patients to determine their intended course of treatment gives patients a voice in their own care. Advance care planning—whether through a formal directive, or even informal conversations amongst family members—also takes a weighty burden off of loved ones at a time of immense stress and emotional anguish.

My mother has told me throughout my adult life that, in extreme circumstances, she does not want medical personnel using extraordinary means to extend her life. Heart-breaking as it would be for me to relay that decision to her doctors, I could at least know I did not make that decision, but instead merely relayed a wish that my mother has expressed, consistently and repeatedly, over many years.

The Power of Persuasion

Under most circumstances, encouraging individuals to have these types of end-of-life conversations with their family members and physicians represents sound medical practice and wise public policy. But the middle of a global pandemic by definition does not constitute ordinary circumstances.

Here’s one telling example from Britain’s National Health Service. The BBC obtained a document from a regional medical group based in Sussex. The document, which sets out guidance for treating coronavirus patients in nursing homes, prompted one care manager to become “deeply concerned that residents and families are being pushed to sign” do-not-resuscitate forms:

The…guidance even provides a suggested script for GPs [general practitioners] to use in conversations with residents and families, part of which says ‘frail elderly people do not respond to the sort of intensive treatment required for the lung complications of coronavirus and indeed the risk of hospital admission may be to exacerbate pain and suffering.’

It goes on: ‘We may therefore recommend that in the event of coronavirus infection, hospital admission is undesirable.’

One care manager…[said] their GP had even told them ‘none of your residents aged over 75 will be admitted to hospital.’ They said they felt ‘shocked and numb’ to hear that. Another said: ‘We have been told flatly that it would be highly unlikely that they would be accepted into hospital.’

Put aside for a moment the fact that Britain’s system of socialized medicine has prompted at least some physicians to believe they should flatly refuse medical care to senior citizens (even though Health Secretary Matt Hancock denied such a policy exists). That such a system has also pressured family members to sign do-not-resuscitate orders for their loved ones speaks to the potential dangers of combining end-of-life counseling with the pressures faced by health care providers during a pandemic.

Preserve a Culture of Life

A content-neutral conversation among a doctor and a patient about constructing an advance directive, and what instructions to put in that advance directive, is one thing, but pressuring vulnerable patients to sign do-not-resuscitate orders during a global pandemic is quite another. Common sense, confirmed by the example from Britain, suggests that given the current medical crisis, the conversations could easily veer off-track from the former to the latter.

Advance care planning has its place in health care, but now seems an inauspicious time to push for its more widespread adoption. At present, our efforts should focus not just on preserving life, but on preserving a culture of life—and hurried conversations about end-of-life care in the current pandemic could undermine that culture significantly.

This post was originally published at The Federalist.

Health “Reform” = Empowering Bureaucrats

In case you hadn’t seen it, this week’s National Journal has an interesting column, entitled “The Interpreters,” about how unelected federal bureaucrats are implementing the health care law – creating an environment where President Obama “could deepen his imprimatur on reform.”  The article notes that “the Administration clearly doesn’t mind using the rule-making process to expand the scope of the law,” and discusses the controversy whereby federal officials tried to “sneak” regulations on end-of-life care into part of a massive, 692-page physician payment regulation released in late November – an event punctuated by e-mails from Congressional staff indicating they should “not broadcast this accomplishment” by publicly advertising the existence of this secret rule.

As we’ve previously noted, the Administration has released 6,578 pages of Federal Register regulations and notices in Obamacare’s first year – with thousands (and likely tens of thousands) more yet to come.  Unfortunately, the impact on American businesses has already been felt; one owner of a chain of bowling alleys recently testified that the new regulations and mandates in the law will cost his firm over $26 million – meaning more than 500 jobs will NOT be created as a result of the law’s costs.  Moreover, the law creates 159 new bureaucracies, boards, and programs – which will produce more mandates for businesses to follow, and intrude on Americans’ personal relationships with their physicians.

Just as the American people took it none too kindly when the Democrat Congress rammed through their unpopular 2700-page bill, many may be concerned by the prospect of federal bureaucrats releasing tens of thousands of pages of regulations regarding the law – both due to the economic damage that many of these regulations will inflict on struggling businesses, and because of the actions of unelected bureaucrats in avoiding transparency and public scrutiny when implementing these damaging new mandates.

Sebelius Admits Lack of Transparency in Rulemaking

Testifying before the Energy and Commerce Committee earlier today, Secretary Sebelius told Rep. Gingrey that she supported and had approved the inclusion of controversial end-of-life care provisions that were buried in a massive, 692-page physician payment regulation released in late November.  As a reminder, the proposed rule released by the Administration in August 2010 – two months BEFORE the mid-term election – omitted the controversial end-of-life care provisions, while the final rule – released by the Administration AFTER the mid-term election – included these provisions without public comment.  Administration officials went from attempting to defend the end-of-life provision in a Wall Street Journal article in late December to withdrawing the provision entirely one week later – due in no small part to e-mails from Congressional staff indicating they should “not broadcast this accomplishment” by publicly advertising the existence of this secret rule.  The White House and Administration officials still have not indicated what prompted the regulatory U-turn.

The fact that Secretary Sebelius had no qualms about approving such a controversial regulation WITHOUT public comment shows a dangerous lack of transparency on the Administration’s part – particularly for an official granted such blanket authority by the health care law itself.  A Center for Health Transformation chart lists almost 2,000 powers and authorities granted to the Secretary under the law, and HHS has already granted more than 900 waivers from the law to health plans, particularly union plans.  Granting this much authority to a single government individual is bad enough – but granting it to someone who apparently has few qualms about sneaking provisions into rules without public comment is even worse.

From C-SPAN Promises to Secret Meetings: Obama’s Broken Transparency Promises

Politico has a story this morning about the secret meetings Administration officials are holding with lobbyists outside the White House gates – primarily so they can avoid the visitor disclosure requirements the Obama Administration implemented for “official” meetings on White House grounds.  Among the nuggets in the story describing Administration officials’ furtive machinations:

  • “Several of the lobbyists involved [in off-site meetings] say they believe the choice of venue is no accident.  It allows the Obama Administration to keep these lobbyist meetings shielded from public view – and out of Secret Service logs collected on visitors…and later released to the public.”
  • “At least four lobbyists…had the distinct impression they were being shunted off…so their visits wouldn’t later be made public.”
  • “There are no records of meetings at the row houses just off Lafayette Square that house the White House Conference Center and the Council on Environmental Quality, home to two of the busiest meeting spaces.  The White House can’t say who attended meetings there, or how often.  The Secret Service doesn’t log in visitors or require a background check the way it does at the main gates of the White House.”
  • “[Lobbyists] say the White House is generally happy to meet with them and their clients once or twice, but get leery when an issue requires multiple visits and begin pushing for phone calls or meetings outside the White House’s gates.  ‘Without question, I think that there’s a lot of concern about being seen meeting with the same lobbyists or particular lobbyists over and over again,’” according to one lobbyist.
  • “Another favorite off-campus meeting spot is a nearby Caribou Coffee, which, according to the New York Times, has hosted hundreds of meetings among lobbyists and White House staffers since Obama took office.”
  • “Administration officials recently asked some lobbyists and others who met with them to sign confidentiality agreements barring them from disclosing what was discussed at meetings with administration officials….[the practice] has come under fire from lobbyists and a top House Republican, who have criticized the demand that participants sign a ‘gag order’ before being allowed into meetings.”
  • “[A] veteran lobbyist said no other administration he’s worked with has so often responded to routine email queries with the same three-word response, ‘Gimme a ring.’”
  • “‘My understanding was they were holding the meeting there because it included several high-level business and trade association lobbyists,’ said a senior business lobbyist who attended [a meeting on immigration].  ‘This was an effort to not have to go through the security protocols at the White House which could lead to the visitor logs at some point being released to the public and embarrass the president.’”

Unfortunately, secret meetings with lobbyists are not the only way in which the Administration has acted in non-transparent ways.  Just last month, the Administration was forced to withdraw other controversial regulations surrounding end-of-life care, after leaked e-mails suggested that Democrats deliberately sought to enact regulatory provisions without providing the public an opportunity to comment on them.  The White House still has yet to provide a full and public accounting of who or what (secret meetings, perhaps?) was behind this highly unusual turn of events.  Worse yet, the New York Times reported earlier this month on other questionable developments regarding the rulemaking process – implying that Administration officials had already decided to require insurers to cover of contraceptive services, and were merely undertaking an outside consultation on the issue “for show.”

The ready willingness of Administration officials to avoid procedures designed to allow public scrutiny of their actions does not speak well to the its ability to operate with the “unmatched level of transparency, participation, and accountability” promised by the President.  For a President that promised to televise all health care negotiations on C-SPAN, yet another story about the ways in which government officials keep attempting to circumvent transparency measures illustrates how far the Administration needs to go to enhance public disclosure while implementing the massive, 2,700 page health care law.

Another Rigged Reg from the Administration?

Amidst all the stories about yesterday’s repeal vote, it’s worth looking at another article in today’s New York Times about a regulatory process going on within the Administration – Robert Pear’s piece on the possibility that insurance policies will be forced to cover contraception as part of a new mandated benefits package under the health care law.  The article notes that the Institute of Medicine is examining what female preventive services should be required, but then includes this intriguing paragraph:

Administration officials said they expected the list [of required benefits] to include contraception and family planning because a large body of scientific evidence showed the effectiveness of those services.  But the officials said they preferred to have the panel of independent experts make the initial recommendations so the public would see them as based on science, not politics.

The wording of this paragraph sounds suspiciously like the Administration has already decided to require coverage of contraceptive services, and is merely using the public process to provide political cover to a decision that was made behind closed doors months ago.

As the article notes, mandated insurance coverage of contraception is not without controversy in some circles on moral grounds – to say nothing of the fact that adding a whole series of new mandated benefits like birth control will raise health insurance premiums (thus breaking candidate Obama’s promise to lower premiums by $2,500 per family).  The Administration’s apparent willingness to admit it has already made its decision on this controversial matter PRIOR to any public consultations being completed does not speak well to its ability to operate with the “unmatched level of transparency, participation, and accountability” promised by the President.

Just last month, the Administration was forced to withdraw other controversial regulations surrounding end-of-life care, after leaked e-mails suggested that Democrats deliberately sought to enact regulatory provisions without providing the public an opportunity to comment on them.  The White House still has yet to provide a full and public accounting of who or what was behind this highly unusual turn of events – and now the New York Times reports on another series of questionable developments regarding the rulemaking process.

For a President that promised to televise all health care negotiations on C-SPAN, this new story about the potential sabotage of another opportunity for public comment on a rule illustrates how far the Administration needs to go to enhance transparency while implementing the massive, 2,700 page health care law.

A Whodunit on End-of-Life Care Rules

Under questioning at the House Energy and Commerce Committee, OMB regulatory head Cass Sunstein admitted he had no idea who attempted to “sneak” regulations on end-of-life care into part of a massive, 692-page physician payment regulation released in late November.  To briefly summarize, the Administration went from attempting to defend the end-of-life provision in a Wall Street Journal article in late December to withdrawing the provision entirely one week later – due in no small part to e-mails from Congressional staff indicating they should “not broadcast this accomplishment” by publicly advertising the existence of this secret rule.

Mr. Sunstein’s surprising candor about this regulatory debacle raises some further interesting questions.  If the Administration’s own regulatory “czar” doesn’t know who tried to manipulate the rulemaking process to insert this controversial provision, who does?  What information about the regulatory process did White House officials learn to prompt their U-turn on including this provision – and when will that information be disclosed to the public?

Mr. Sunstein also conceded that the rulemaking process is one way for the federal government to enact controversial policies without allowing elected Members of Congress to have a say in the matter.  Given this admission, and his related comments, the American people deserve a MUCH more detailed explanation about the apparent shenanigans that transpired behind closed doors regarding this controversial provision – and what actions the Administration will take to ensure it does not happen again.

Rhetoric vs. Reality from the Obama Administration on Regulations

President Obama published an op-ed in the Wall Street Journal this morning claiming that his Administration would take a new look at imposing new regulations.  While it’s welcome to hear the President admit that “sometimes [federal] rules have gotten out of balance, placing unreasonable burdens on business—burdens that have stifled innovation and have had a chilling effect on growth and jobs,” it would be far more productive for the Administration to put its actions where its rhetoric lies when it comes to imposing new burdens on business.

Between March 22 and December 31, the Federal Register contained a whopping 6,123 pages of requirements related to the health care law – proposed rules, interim final rules, requests for information, notices, and other regulatory actions.  These regulations included provisions that will result in more than half of all employers – and up to 80% of small businesses – losing access to their current health plan, and other new mandates that will raise insurance premiums for all Americans.

Worse yet, the regulatory impact of the health care law has only just begun – most of the law’s major provisions don’t even start until 2014.  That means that over the coming years (more likely decades), businesses and individuals will have to comply with tens of thousands of pages of new (and changing) regulations imposed by federal bureaucrats.  These mandates will come on top of all those included in the 2,700 page health care law itself.

Moreover, the regulatory process under which health care regulations have been propounded violates the President’s stated commitment in his op-ed to achieve “more input from experts, businesses, and ordinary citizens.”  At least 11 rules have taken effect – giving them the force of law – WITHOUT public comment in advance, shutting small businesses and ordinary Americans out of the rulemaking process.  And most recently, the Administration was forced to withdraw controversial regulations surrounding end-of-life care, after leaked e-mails suggested that Democrats deliberately sought to enact regulatory provisions without providing the public an opportunity to comment on them. (The White House still has yet to provide a full and public accounting of who or what was behind this highly unusual turn of events.)

The tone of the President’s op-ed this morning about a common sense way to apply regulation was welcome, and needed.  However, this Administration’s regulatory overreach – and the closed-door method in which federal bureaucrats have often shut the American public out of the process – is not.

Backroom Deals — In Law and Rules

In his Wall Street Journal column this morning, Karl Rove writes about how Democrats have used the health care law to reward friends and punish enemies.  Two examples mentioned in the column: The Administration’s frequent waivers granted to union plans from the new health insurance regulations, and all the exemptions provided in statute to the AARP’s lucrative Medigap business.

Politico also examines this issue from a slightly different angle, writing about the Administration’s decision to withdraw a portion of its Medicare physician payment regulation relating to end-of-life counseling.  Its article quotes both White House press secretary Robert Gibbs (the full exchange from yesterday’s press briefing on the issue can be found here) and Rep. Earl Blumenauer as saying that only “process” concerns resulted in the withdrawal of the end-of-life provision.

There are several potential problems associated with this stance:

  • If the problem with a proposed regulation is solely one of “process,” doesn’t that imply that the substance of the regulation has already been decided, and that allowing the public an opportunity to comment is merely a “tick-the-box” exercise?
  • Why did the Administration go from attempting to defend the end-of-life provision in a Wall Street Journal article last week to withdrawing the provision entirely this week?  What information about the regulatory process did White House officials learn in that time to prompt the U-turn – and when will that information be disclosed to the public?
  • What about all the other backroom deals included in the health care law – or waiver actions alluded to in Mr. Rove’s column below?  Will the American people be granted “an adequate space in a public comment period to debate these kinds of things” that Mr. Gibbs said would be provided on the end-of-life provision?

Finally, it’s worth pointing out that this morning’s Politico piece also quotes the president of Compassion and Choices – an organization formerly known as the Hemlock Society – as offering her support for end-of-life counseling.  Prior to his controversial recess appointment as head of CMS, Dr. Donald Berwick was asked by a member of the Finance Committee whether he “had ever received funding from, been a member of, consulted with or for, or been associated in any way” with that organization.  Has Dr. Berwick ever answered this question about any prior relationships with the former Hemlock Society – and does his silence explain why CMS acted the way it did regarding the end-of-life provisions?

A Reversal — And Some Caution — On Regulatory Transparency

The New York Times once again returned to the issue of end-of-life counseling this morning, as Robert Pear reports that the Administration reversed itself on implementing a rule allowing Medicare to pay for end-of-life planning consultations.  Here are three critical paragraphs:

Although the health care bill signed into law in March did not mention end-of-life planning, the topic was included in a huge Medicare regulation setting payment rates for thousands of physician services.  The final regulation was published in the Federal Register in late November.  The proposed rule, published for public comment in July, did not include advance care planning.

An administration official, authorized by the White House to explain the mix-up, said Tuesday, “We realize that this should have been included in the proposed rule, so more people could have commented on it specifically.”

“We will amend the regulation to take out voluntary advance care planning,” the official said.  “This should not affect beneficiaries’ ability to have these voluntary conversations with their doctors.”

The November regulation was issued by Dr. Donald M. Berwick, administrator of the Centers for Medicare and Medicaid Services and a longtime advocate for better end-of-life care.  White House officials who work on health care apparently did not focus on the part of the rule that dealt with advance care planning.

While the White House U-turn is certainly welcome, this episode reveals several important facts about the regulatory process in this Administration:

  1. Officials at the Centers for Medicare and Medicaid Services (CMS) – headed by Dr. Donald Berwick, the Administration’s controversial recess appointee – evidently thought nothing of including a contentious provision in a final rule without giving the public an opportunity to comment upon it.
  2. Officials at the White House “apparently did not focus” on the end-of-life care provisions buried in the massive, 692-page physician payment regulation released in late November.  In other words, the Administration has released more than 6,000 pages of regulations implementing the health care law through mid-December – and yet White House officials apparently have not read each and every page of these job-killing regulations before their release.
  3. All it took to remedy the first two significant oversights by the Administration was a front-page article in the New York Times last week, complete with conspiratorial e-mails from one Congressman’s office asking end-of-life advocates “not [to] broadcast this accomplishment” – and the subsequent outrage that ensued.

As noted before, the Administration’s move for a more open process on this one issue should be welcomed by transparency advocates of both parties.  But with CMS officials willing to sneak controversial provisions through a White House apparently “asleep at the switch,” what’s going to happen the NEXT time the Administration tries to enact contentious rules through a closed, backdoor process?  For that matter, how do we know the Administration hasn’t done so already?  For a President that promised to televise all health care negotiations on C-SPAN, today’s developments are helpful in one sense – but they also illustrate how far the Administration needs to go to enhance transparency while implementing the massive, 2,700 page health care law.

On End-of-Life Care and Other Regulations, What Are Democrats Hiding?

In case you missed it due to holiday plans or winter weather, the New York Times reported a very interesting story about the Administration’s efforts to expand end-of-life counseling in Medicare.  (The Wall Street Journal has a follow-up story this morning that can be found here.)

What’s most interesting about this story is the way in which advocates of end-of-life counseling “though pleased, have kept quiet” regarding the regulatory change.  In fact, the article quotes one supporter as sending the following message to end-of-life counseling advocates:

We would ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’ — e-mails can too easily be forwarded….Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response.  The longer this goes unnoticed, the better our chances of keeping it.”

These developments of course raise interesting questions about both this particular change, and what it means for implementation of the health care law going forward:

  • If this provision is so innocuous, then why are its advocates hoping it goes unnoticed, and sending around e-mails asking that no one attract attention to it?
  • Why has Barack Obama’s Administration gone from promising health care negotiations would be televised on C-SPAN to hoping that potentially controversial provisions can be slipped into regulations without drawing public attention?
  • When the Times article notes that this “strategy may become more prevalent in the next two years,” what other types of controversial provisions will the Administration attempt to implement through regulations that it could not enact by law?