End-of-Life Counsling Revisited Through Regulatory Bribery

Of the many controversial measures initially included in Obamacare, perhaps none sparked more outrage than the discussions on end-of-life planning.  The conversation turned into a political debate over the legitimacy of aptly framed “death panels,” and as such,  Obama quickly dropped the proposal from his laundry list of pet projects.  However, now it has come to rear its ugly head again in perhaps an even more disconcerting manner.

When Obama cannot get his way legislatively, he will circumvent the process, abuse his power, and accomplish his goals through regulation.  Much of the time he has simply avoided Congress altogether.  In his most recent abuse of power, Obama has revisited the idea of end-of-life planning in a far more controversial way: through regulatory bribery.

Under the new policy, outlined in a Medicare regulation, the government will pay doctors who advise patients on options for end-of-life care, which may include advance directives to forgo aggressive life-sustaining treatment.

The final version of the health care legislation, signed into law by President Obama in March, authorized Medicare coverage of yearly physical examinations, or wellness visits. The new rule says Medicare will cover “voluntary advance care planning,” to discuss end-of-life treatment, as part of the annual visit.

Under the rule, doctors can provide information to patients on how to prepare an “advance directive,” stating how aggressively they wish to be treated if they are so sick that they cannot make health care decisions for themselves.

While the new law does not mention advance care planning, the Obama administration has been able to achieve its policy goal through the regulation-writing process, a strategy that could become more prevalent in the next two years as the president deals with a strengthened Republican opposition in Congress.

To be clear, there is nothing wrong with Medicare patients preparing for future care through some established advance directive.  There is also nothing wrong with doctors initiating the discussion. End-of-life conversations are necessary, and they need to take place in advance of any potential fatal health concerns.  This process is beneficial to all involved: the patient, the doctor, and the family.  In that respect, the regulation is not outrageous.

However, as with most of Obama’s agenda, the outrage is not so much the concept of the law but the method of its execution and the process by which it is established .  While end-of-life conversations are beneficial when initiated by two willing participants, they have no place being incentivized through federal dollars.  Essentially Obama is using taxpayer money to bribe doctors into initiating these conversations.  Like so much of the left-wing regulatory ponzi scheme, it is a process that leaves the door wide open for waste, fraud, and abuse.

Speaking of waste, one of the most widely touted “benefits” of Obamacare is its ability to cut costs.  Of course, the fundamental argument behind the idea that Obamacare will reduce the deficit is flawed at best, and it is based on a rigid set of expectations about health care purchasing that is equally as flawed.  However, putting that issue aside, it seems somewhat problematic that the Left can praise the cost-saving attributes of the legislation and at the same time support a regulation establishing increased government spending.

More fundamentally, the mandate is disturbing because Congress specifically shot down this exact measure in the Spring.  So, as Obama is so accustomed to doing when confronted with attempts to refute his agenda, he has launched a regulatory regime to impose his will and circumvent the deliberativeprocess.  The Congress was created as the lawmaking body of our country, and the President was created to be the enforcer of these laws.  Regulations are meant to be ways of enforcing existing mandates passed by Congress.  They are not meant to serve as a new avenue for lawmaking, and though the regulation does not specifically force doctors to engage in this process, it would be foolish to assume that they would not take advantage of this development.

Since legislative action will be impossible for Obama in 2011, the issue of regulatory micro-management will become an increasing concerning issue.  You can bet that the GOP will shoot down Obama’s proposals at every turn, but you can also best believe that Obama won’t take no for an answer.  Cutting the deficit is important, but in many ways, refuting Obama’s regulatory regime might be an even more pressing priority.

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