“End-of-life” planning, or “advanced care” planning, generally is reserved for discussions between family members and their loved ones, but may sometimes include an attorney. These discussions center around decisions for artificial life support, “pull the plug” decisions, Do Not Resuscitate, and other end-of-life treatment options. Doctors and hospitals usually do not provide advice or insight into these decisions, although that may begin to change in the near future. Soon, the federal government will hear recommendations and advice regarding the possible Medicare reimbursement and payments to medical staff who engage in these discussions with their patients.

The American Medical Association‘s Relative Value Scale Update Committee (RUC) soon will issue recommendations to the federal government regarding the resources doctors expend when they provide advance care planning to patients. Every year, the AMA makes such recommendations on a broad range of procedures and services to the Centers for Medicare and Medicaid Services (CMS), the federal agency that administers the Medicare program and works with state governments to administer Medicaid. CMS uses these recommendations, along with input from others, to set reimbursement rates, which both Medicare and private insurers also tend to use.

Now, there is a large concern that doctors receiving reimbursements and payments for these discussions may unethically encourage or solicit end-of-life planning to their patients, even if the situation does not call for it. If Medicare reimburses doctors for such discussions, as it pays them for examining patients and performing procedures, they are much more likely to happen. Thus, doctors will almost thrust the conversations onto their patients in order to receive their reimbursement payments, or even worse, convincing patients to engage in an end-of-life decision (such as Do Not Resuscitate) in order to conserve hospital resources by neglecting the patient (reasoning that they chose to just pass away anyway).

Generally, when given a choice, patients often forgo invasive procedures at the end of life, such as declining to be supported by artificial fluids. Such procedures can be costly while doing little to extend or improve the quality of the patient’s life. However, some people fear that end-of-life conversations could lead to rationing health care or withholding it entirely. Burke Balch, director of the Powell Center for Medical Ethics at the National Right to Life Committee, said he wasn’t aware of the AMA’s proposal. But Balch expressed concern that the measure would result in the “denial of life-saving medical treatment.”

“It is one thing genuinely to determine what people’s treatment wishes are, but the danger is very grave that efforts to pay for advance care planning sessions (under) Medicare will turn into subtle efforts to pressure some of the most vulnerable patients to surrender their right to live,” Balch said (http://www.pewstates.org/projects/stateline/headlines/feds-to-consider-paying-doctors-for-end-of-life-planning-85899545989).

Proponents for the new regulations have a strong argument as well. Geriatricians, oncologists and other medical specialists who see gravely ill patients argue that it’s crucial to elicit a patient’s wishes for treatment and other pastoral or psychological supports in a dire medical situation. Importantly, some private insurers, including Excellus Blue Cross Blue Shield of New York, already reimburse doctors who help patients with advance care planning.

At least two states, Oregon and Colorado, already provide reimbursement for advance care planning. In Colorado, doctors can be compensated up to $80 for a 30-minute conversation to discuss advance care planning. “We are doing this to incentivize providers to have these conversations with our clients,” said Judy Zerzan, chief medical officer of the Colorado Department of Health Policy. Furthermore, a decision by Medicare to approve reimbursement for advance care conversations would allow patients to control decision-making as their medical options narrow. Compensating doctors for such discussions would be an acknowledgement that these conversations can be a highly beneficial service that ensures that the care medical staff provides is consistent with the patients’ wishes.

There does exist, however, a fine line between advising a patient on end-of-life planning and unethically soliciting their wishes and decisions. A possibility exists that a doctor may engage in end-of-life planning with a patient solely for the purpose for reimbursement, even if the medical prognosis is not grim. Then, if the patient makes some sort of end-of-life decision, such as by signing a Do Not Resuscitate form, the medical staff may begin to neglect the patient due to his or her decision to not be resuscitated or kept alive. This proposed regulation may have the unintended effect of essentially paying medical staff to convince a patient that their final moments are not valuable, which may then result in severe neglect and complete denial of basic needs to those surviving patients in their last minutes.

Although this is an extreme case, and hopefully it will never arise to this level of horrible consequences, these are some legal and ethical issues that need to be raised. The federal government is considering whether to reimburse doctors for engaging in advanced care planning with patients, regardless if they are terminally ill or not. However, it is also imperative for family members and patients beforehand to engage in these discussions when considering their options to treatment. Importantly, when a decision has been reached, regardless of the discussion with the doctor, family members and patients should have executed an Advanced Medical Directive in order to avoid family conflict, confusion, and interference from medical staff. Our office will gladly consult with you regarding you and your family members medical wishes and the details of an Advanced Medical Directive!