Death Panels – it looks like they are back

It would appear that conversation surrounding “Death Panels” is back in the forefront. Just last week, both ABC and the NY Times reignited the conversation surrounding the topic and how these “panels” were being mentioned and even implemented.

Pam Bulleck, of the NY Times, wrote in her recent article titled “Coverage for End-of-Life Talks Gaining Ground” that some states like Colorado and Oregon already started talking about end-of-life with Medicaid patients, while Medicare is mulling over a recent recommendation from the American Medical Association to allow coverage for it so physicians can broach the subject and still charge a fee.

Whether this recent focus on end-of-life conversations and possible procedures is all for shock value or not, the question on the minds of many is still is if there were or are “Death Panels” in the Affordable Care Act or not? Unfortunately, the answer is not that clear cut as it should be – even for those few who have actually read the enacted law and the first attempt at the law too.

Many people may remember Sarah Palin making her infamous death panel claim in 2010. She based that on an early healthcare bill, HR 3962, which was introduced to Congress on October 29, 2009 by Rep. John Dingell (D., MI). Rep. Dingell was joined by the following Congressmen: George Miller (D., CA), Charles Rangel (D., NY), Henry Waxman (D., CA), Pete Stark (D., CA), Frank Pallone (D., NJ) and Rep. Robert Andrews (D., NJ), did contain language that could be interpreted by some as death panels.

On page 111 of section, 223, there is language about the creation of “a private-public advisory committee, which shall be a panel of medical and other experts to be known as the Health Benefits Advisory Committee to recommend covered benefits and essential, enhanced and premium plans”.

According to HR 3962, the specific duties of this panel were to “recommend to the Secretary of Health and Human Services (in this subtitle referred to as just the “Secretary”) benefit standards and periodic updates to such standards. In developing such recommendations, the Committee shall take into account innovation in health care and consider how such standards could reduce health disparities.”

Essentially, this section created a panel that decided on the types of procedures and standards to be established. Unfortunately, this could be construed as “Death Panels” because they would have the ability to assign specific types of coverage to specific types of plans according to a specified agenda. However, the opposite can be argued too. This “Committee” was not a panel that was making a decision on who will receive care when or at what age, but rather just streamlining standards for efficiency.

On page 641 in Section 1233 of HR 3962 one will read about the creation of a “Voluntary Advance Care Planning Consultation.” This would established “an optional consultation between the individual and a practitioner” that is intended to be a “review of key questions and considerations, advance directives (including living wills and durable powers of attorney) and their uses, while also providing “an explanation by the practitioner of the role and responsibilities of a health care proxy and 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.”

By the way, the definition of practitioner was defined on page 642 to be a “a physician and another health care professional as specified by the Secretary and who has the authority under State law to sign orders for life sustaining treatments.”

Perhaps this is where the “Death Panels” argument originated? HR 3962 didn’t specifically mention “Panels,” but the language could be interpreted to read that physicians and other health care professionals could have the conversation of “end-of-life services.”

HR 3962 was not the law that was passed. In December of 2010, the House of Representatives abandoned HR 3962 and focused on HR 3590. Today we know HR 3590 as the Affordable Care Act (ACA). The ACA has many of the features of HR 3962, but it has been pared down significantly. It passed with only 906 pages instead of the original 1990 pages. The actual law does not have the term “Health Benefits Advisory Committee”, but if you flip to page 371 of the law, one will find the term “Independent Medicare Advisory Board.”

This maybe the same Board that Mark Halperin was referring to when he made his infamous comment back in November of 2013 that “Death Panels were built into the law.” But, was he right? Well, not according to Rick Ungar, a contributor to Forbes Magazine who “writes from the left on politics and policy.”

Ungar challenges Halperin’s position in his aptly titled article, “Mark Halperin’s Sudden Claim That Obamacare Death Panels Exist Calls Into Question His Reporting Credibility.” Ungar claims that he personally read the ACA 7 times and has “yet to come across any provision that states how critically ill patients will—or will not—have their fate determined by their government.” This contradicts Halperin’s position that “death panels are the means in which health care costs are going to be controlled in the future.”

But, Ungar admits that the “Independent Medicare Advisory Board” exists. However, he does point out that this Board “is barred from recommending cuts to healthcare that threaten Medicare beneficiaries access to care.” So, is Mr. Ungar right? Apparently not according to another Forbes contributor, Carolyn McClanahan, who discuss all things money and medicine.

In her article, conveniently, titled, “What Is the Independent Medicare Advisory Board?” Ms. McClanahan articulates what the “Independent Medicare Advisory Board” is, who comprises it, to whom it reports and what it accomplishes.

She concludes her article by saying: “basically, the insurance company will ration the care. Who will they look out for – the Medicare beneficiary or their shareholder? Where would you prefer your taxpayer dollars end up? In the pocket of shareholders of an insurance company or used for the health of Medicare beneficiaries? This makes me nervous, as insurance companies have historically been kind to the shareholders and less kind to the patient.”

To answer the original question we have to ask ourselves who we believe? Mark Halperin the senior political analyst for Time magazine, Time.com, and MSNBC? Rick Unger, a Forbes contributor who admittedly writes from the left? Or, Forbes contributor Carolyn McClanahan, who discuss all things money and medicine?

As they say in sports, let’s go to the video tape. Here we will go to the source, the actual ACA law. On page 371 of the ACA ,the “Independent Medicare Advisory Board” is defined as having a sole purpose to: “reduce the per capita rate of growth in Medicare spending.” It will reduce this per capita rate of growth by: “requiring the Chief Actuary of the Centers for Medicare & Medicaid Services to determine in each year the projected per capita growth rate under Medicare for the second year following the determination year. If the projection for the implementation year exceeds the target growth rate for that year, by requiring the Board to develop and submit during the first year following the determination year a proposal containing recommendations to reduce the Medicare per capita growth rate.”

Rick Ungar will, probably, point out, the Independent Medicare Advisory Board is “barred from recommending cuts to healthcare that threaten Medicare beneficiaries access to care.” However, Carolyn McClananhan may remind us of the role of the insurance companies and what the bottom line is for them.

So, are there death panels or not? One can argue that the original attempt at overhauling the US health care system, HR 3962, did have language that created some type of method of either having a conversation or limiting services. However, what has been passed as law inside the ACA doesn’t go that deep into the details which is the point Pam Bulleck’s wonderful article made.

Politics aside, health care, and the various the costs associated to it, are the largest expense retirees will face. If we also factor in long-term care costs, the average citizen could be facing a bill into the millions of dollars. What makes a bad situation even worse? The reality that no one has really made an attempt to actually plan for these costs.

Think about the number of public employees who will be retiring over the next decade and what has been contractually promised to them. Then think about how, according to a survey conducted by Sun Life less than 8% of Americans have even attempted at planning for health care in any plan, let alone their retirement plans.

Something has to give, but is having the conversation of ending someone’s life because it may or may not be economically feasible be the right path our Nation should go? Or should we start educating people about their future when they are in the position to plan for it?

Things will most likely change when these Baby Boomers come to grip with the fact that they have a mandatory expense that just happens to be the largest expense they never planned for and by the time they realize it, it will be way too late.

For those that want to get a glimpse at what the future may bring, in terms of health costs, we invite you to try our “Lite” version of health cost software at www.yourretirementcosts.org.

Remember health happens no matter what you may be told!

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