New CMS Rule Establishes "Voluntary" End-of-Life Consultations

December 3, 2010

Dear all,

Just when you thought the American people had dodged the death panel bullet (Section 1233 of the House bill), think again. Last Monday, November 29, 2010, The Federal Register (73,406) published a new funding rule for "voluntary" advance care planning consultations that changes US Department of Health and Human Services regulation pertaining to Medicare and Medicaid patients.

The new regulation states that advanced care planning consultations will be now offered (and funded) as part of the initial wellness visit for medicare patients and during all subsequent annual visits.

The Federal Register provides a uniform system for making available to the public regulations and legal notices issued by Federal agencies. Agency proclamations having general and legal effect are required to be published by act of Congress.

Has there been any media attention to this important change in health care coverage for all those receiving medicare and medicaid services? You will recall the uproar about death panels in the summer, but this week funding for these consultation sessions became part of general government regulations without fanfare.

Ione Whitlock is Chief of Research at LifeTree. On our current home page she discusses these new Federal Regulations. Also posted there is her new essay titled "Heads up: Section 1233 again."

Ione discusses Congressman Earl Blumenauer's bill -- HR 5795 -- which was introduced this summer after passage of the health care bill and two matching bills which were introduced in 2009 by Senator Rockefeller and Congressman Blumenauer. All these bills seek grants for programs to expand or enhance existing state programs for orders regarding life sustaining treatment (POLST).

One of the main goals of this legislation is to fully implement the POLST form into our health care system. POLST stands for Physician's Orders for Life Sustaining Treatement. It comes in many flavors including MOST, MOLST, POST and TPOPP, depending on the location.

Government funds will be used to educate "providers" who will work with the patients, their families and surrogates in filling out the POLST forms. They will learn the so-called "best practices" for discussing end-of-life care with dying patients and their loved ones. These funds will ensure that the POLST forms are recorded electronically.

Note: For more information on the history and implications of POLST, see "POLST: 'Self-Determination' or Imposed Death?" in LifeTree's Resources section.

God bless.

Elizabeth D. Wickham, PhD
Executive Director, LifeTree


Heads up: Section 1233 again.

Last March Nancy Pelosi told the American people that she and her colleagues "have to pass the bill so you can find out what’s in it.”  Americans had already seen one part of the proposed healthcare legislation, and didn't like what they saw: The infamous Section 1233 of HR 3200 would have federalized “voluntary” end-of-life “consultations.”  The section was eventually dropped.

It appears that Section 1233 is still alive and kicking.

The “advance care planning” portion is in a rule from US Department of Health & Human Services, Centers for Medicare & Medicaid (CMS) here: [NOTE: link went inactive following 11/29. As of 12/1 the document is available at]

The POLST part is included in pending legislation, HR 5795 “Personalize Your Care Act of 2010."  Here are two links to information about this bill: one via GovTrack here, and another via Library of Congress here.  Text of the bill is here as a PDF.

CMS posted the preliminary rules on Election Day; formal rules are to be published in the Federal Register on November 29.  The rules include a discussion of the definition of “voluntary,” although some of the more nuanced meanings of “voluntary” may have been missed (just ask any recipient of a “voluntary” TSA pat-down).  The rule also includes a discussion of signature requirements for “orders” versus “requisitions” in context of diagnostic tests. The American Bar Association’s Charles Sabatino, who supported Section 1233, calls the new rules “a big step forward.”

Congressman Earl Blumenauer (D-OR) introduced HR 5795 this past July.  It is a revised version of the legislation that he and Senator Rockefeller (D-WV) introduced last year.  Blumenauer introduced HR 2911, and Rockefeller introduced S. 1150 in 2009, both titled “Advance Planning and Compassionate Care Act of 2009”.  Both bills included:

  • Section 211 (Advance Care Planning) was almost identical to Section 1233 of HR. 3200 – the section that was dropped from the final bill signed in March.
  • Section 112, which would have provided funding to expand POLST.

It is Section 112 of the Rockefeller and Blumenauer bills (S 1150 and HR 2911) that is now Section 3 of HR 5795. Portability of advance directives and standards for electronic health records are also addressed in HR 5795.

Blumenauer is the congressman most often associated with POLST  He is, incidentally, an advocate of legalized assisted suicide, and Rockefeller has spent decades trying to push through legislation on behalf of the organizations that evolved from the Euthanasia Society of America.

Shortly before the election, Blumenauer told a radical pro-assisted suicide group that he had reintroduced what had been known as the "death panel" legislation. He complained that Section 1233 had been dropped due to “organized opposition” from “all of the Sarah-Palin-Fox-News-tin-foil-hat” people, but “it’s not stopping us from moving forward.”  Over the summer he had reintroduced the bill with a new name:  the “Personalize Your Care Act of 2010” (HR 5795). 

“Personalize” leaves the impression that this bill might put medical treatment decisions back in the hands of the individual,  keeping the discussion between patient and physician.  It implies that the patient might as easily “choose life” as to forgo treatment. This is pretty slick marketing, considering it is coming from the same Oregon liberals who pushed not only assisted suicide, but rationing for “equitable distribution of resources” for “the common good.” The bioethicists at Oregon Health & Science University (OHSU) who devised the “citizen parliaments” that gave Oregon its rationing scheme are some of the same bioethicists who put the fine tuning on POLST.

Blumenauer, in his remarks to the Oregon activists, went on to say that Oregon leads the way in health reform.  Well, yes.  Oregon health care is infamous for two things:  assisted suicide, and rationing.  Blumenauer’s bill would impose both on the whole country.

Note: For more information on the history and implications of POLST, see "POLST: 'Self-Determination' or Imposed Death?"in LifeTree's Resources section.

posted 11/24/10 by IW revised 12/2/10 by IW


New CMS Rule Establishes "Voluntary" End-of-Life Consultations

Americans weary of "voluntary" TSA pat-downs and full-body scans will be delighted to learn that "voluntary" end-of-life consultations are in their future as well.

The US Department of Health and Human Services, Centers for Medicare & Medicaid Services (CMS) has made it official: The "advance care planning" funding that would incentivize "voluntary" end-of-life counseling will be included in Obamacare. This funding was part of what was in the controversial "Section 1233" earlier this year. See more extensive discussion in our alert below, posted last week.

The new CMS rule as printed in the Federal Register (Vol. 75, No. 228, Book 1) online at Discussion on "voluntary advance care planning" begins on page 73406.

posted 12/1/10 by IW