Tuesday, December 28, 2010

Death knell for 'death panel' debate?

The debate over “death panels” is hard to kill — but at least one Senate Democratic aide says the issue has now become “Kryptonite for the Right,” thanks to the way a new Medicare regulation is written.

The new policy, buried in the 692-page Medicare fee schedule, allows payment to doctors who provide end-of-life counseling to patients on a voluntary basis. “Voluntary” is the key word, say supporters of the policy.

“When people recognize that they will now have coverage for VOLUNTARY advance-care-planning, they may actually question the motives of those who told them health care reform would involve ‘death panels’,” the Senate Democratic aide said in an e-mail to POLITICO.

The regulation was published earlier this month in the Federal Register and was the subject of a Dec. 25 front-page story in The New York Times.

But Republicans may not let this one go. Betsy McCaughey, a Republican health policy expert and the former lieutenant governor of New York, coined the phrase “death panel” — which was famously tweeted by Sarah Palin during the reform debate.

“Doctors should always be paid for the time they spend counseling patients, including about the tough choices they are making toward the end of their lives. But the government shouldn’t be scripting what doctors should say to patients. The government isn’t a trusted educator, it has a stake in reducing the care provided to elderly patients,” McCaughey, an ardent critic of the health reform law, told POLITICO.

McCaughey, who founded and chairs the Committee to Reduce Infection Deaths, said that the new rule signals that the Obama administration may take the new policy a step further.

“When end-of-life counseling first came up, doctors’ quality ratings were going to be determined in part by the percentage of patients who have a living will and those who follow it up,” she said. “If they make advance-care planning a protocol … it’s not voluntary, despite the use of the word.“

The rule allows payment for advance-care planning as part of an annual preventive exam. It defines the term as “verbal or written information” that pertains to an “individual’s ability to prepare an advance directive in the case where an injury or illness causes the individual to be unable to make health care decisions. It also addresses whether "the physician is willing to follow the individual’s wishes as expressed in an advance directive.”

Richard Sorian, assistant secretary of Public Affairs for HHS, said the regulation does not require that the doctor say anything, but merely defines what advance-care planning is.

“The conversation between a patient and a doctor is a) voluntary and b) confidential. It is up to the patient and doctor to determine what that conversation is, or whether to have the conversation in the first place,” he said.

As for tying the percentage of patients that create an advance directive to quality measures, Sorian said he doesn’t believe that the regulation addresses that issue.

One of the measures used in the Physician Quality Reporting Initiative that doctors can voluntarily report to earn bonus payments is related to having a conversation about end-of-life care, Sorian acknowledged. But that is just one of dozens of different measures that doctors can choose to report in exchange for bonus payments, he stressed.

The decision about end-of-life discussions is entirely in the hands of the patient, Sorian said. It is up to the Medicare patient to decide. “Do I want a discussion about end-of-life care? And then, it’s up to the patient about what they want to discuss.”

Sorian also clarified that it was the Bush administration that first implemented regulations regarding end-of-life counseling. The wellness visit began as a “Welcome to Medicare” exam, which was created by the Republican-led Congress in the Medicare Modernization Act of 2003. In 2008, when Democrats held the majority, Congress passed the Medicare Improvements for Patients and Providers Act, which modified the exam to include end-of-life planning. The Bush administration first implemented regulations that included the end-of life planning as part of the wellness visit created in MIPPA.

Sorian distanced the regulation’s language on advance-care planning from the bill that sparked the initial controversy over death panels. The original health reform bill in the House (HR 3200) “envisioned a separate benefit with a separate fee for physicians that would cover just advance-care planning. That was taken out of the bill,” he said. What was included in the bill were other modifications to the existing wellness visit, but not the advance-care planning language.

Sorian explained that the annual wellness exam is much broader and can include discussions about cholesterol, nutrition and will be used by doctors to set a “baseline” for patients.

The availability of discussions about advance directives is a requirement for conditions of participation of hospitals, under Medicare.

“What’s interesting about this rule is that it’s a lot less prescriptive than the original health reform law, which did outline some of the topics that had to be discussed,” Jon Radulovic, vice president of communication for the National Hospice and Palliative Care Organization, said about the regulation, which the organization supports.

Radulovic said the regulation will be the springboard for patients to make use of an important benefit. “We feel this gives a patient or Medicare beneficiary the opportunity to become an informed consumer and make their own choices that reflect their own beliefs,” he said. As patients age, he said, their views on hospice or palliative care might evolve and the regulation allows for that.

“This is not about rationing care or saving money, it’s about making sure patients understand what options are available before there is a health care crisis,” he said.

But the Senate Democratic aide did talk about how this benefit might save money for the Medicare program over time.

“If people take advantage of it, it could save billions for taxpayers,” the aide said, by respecting the wishes of people who realize that Medicare coverage is available for end-of-life counseling, as well as for hospice and palliative care.

Recent data suggest that Medicare patients are making greater use of hospice. The Medicare Payment Advisory Commission reported last year that utilization of hospice by Medicare beneficiaries has dramatically increased since 2000. The commission found that in 2005, almost 40 percent of Medicare patients who died had elected hospice, “suggesting that many more beneficiaries have access to hospice than was the case” in 1983 when the benefit was originally added to Medicare.

By 2007, nearly 1 million Medicare patients were in hospice and Medicare spending for the benefit “more than tripled, from $2.9 billion [in 2000] to just over $10 billion.” Still, because hospice care is cheaper than standard medical care for the terminally ill, generally, it saves taxpayers’ money.

© 2010 Capitol News

Will states consider new tests for 'Roe'?

LINCOLN, NEB. - Mike Flood, the 35-year-old speaker of Nebraska's legislature, had a problem: He wanted to stop the state's well-known abortion provider from offering late-term abortions.

A long line of Supreme Court precedents seemed to stand in his way. But Flood believes that a 2007 decision offers hope for him and other state legislators looking for ways to restrict abortion.

Using that decision as a road map, this spring Flood wrote and won passage of legislation that bans abortions after 20 weeks. Introducing into law the concept of "fetal pain," it marked the first time that a state has outlawed the procedure so early in a pregnancy without an exception for the health of the woman.

The law shut down LeRoy Carhart, the provider who had planned to expand his practice outside Omaha and provide late-term abortions to women across the Midwest.

The importance of Flood's bill is likely to be felt far beyond Nebraska. Abortion opponents call it model legislation for other states and say it could provide a direct challenge to Supreme Court precedents that restrict government's ability to prohibit abortion before a fetus can survive outside the womb. (It also prompted Carhart to shift his practice east, and he has since opened a late-term practice in Germantown, outside Washington.)

Critics of abortion hail the law as the most prominent and promising outcome of the Supreme Court's 2007 decision, in which, coincidentally, Carhart was the lead plaintiff.

The 5 to 4 decision in Gonzales v. Carhart turned away Carhart's challenge to the federal ban on "partial birth" abortion and appeared to mark a significant change in the high court's balancing of a woman's right with the government's interest.

The ruling was a key moment in the emerging identity of the court headed by Chief Justice John G. Roberts Jr., who marked his fifth anniversary on the court this fall.

Roberts and Justice Samuel A. Alito Jr., also nominated by President George W. Bush in 2005, have become part of a conservative majority willing to reconsider the court's position on social and political issues. Race, campaign finance and the ability of plaintiffs to sue are some of the issues touched by the court's changing jurisprudence.

But since the Roe v. Wade decision in 1973, no social issue has been as entwined with the court than abortion, nor as dependent on its nuance and shifting views.

That's what made the 2007 decision so important to both sides of the issue.

"Many in the pro-life movement have become very pragmatic when it comes to the court: 'Can you count to five?' " said Mary Spaulding Balch, director of state legislation for the National Right to Life Committee. "With the Gonzales decision, we were happy to see that we could."

The justices have not revisited the issue of abortion since, but the decision has emboldened state legislators to pass an increasing number and variety of restrictions in hopes that a changed court will uphold them.

"I believe the decision was like planting a bunch of seeds, and we're just starting to see the shoots popping out of the ground," said Roger Evans, whois in charge of litigation for Planned Parenthood of America.

The Center for Reproductive Rights concluded that in 2010, state legislatures "considered and enacted some of the most extreme restrictions on abortion in recent memory, as well as passing laws creating dozens of other significant new hurdles."

The center's docket of lawsuits challenging state abortion restrictions has grown by a dozen cases in the past two years, President Nancy Northup said.

Flood agrees that his legislation pushes the court's previous boundaries but recites parts of Justice Anthony M. Kennedy's majority opinion in the 2007 decision to justify the effort.

"Absent the holding in Gonzales, I don't think Nebraska would have any ability to even propose a bill like this and see it held constitutional," Flood said in a recent interview.

"I think Justice Kennedy's decision opened the door and spoke to me to the point I wanted to be convinced of before I started down this path."

Shift since 2000

The opinion was all the more striking because it seemed the opposite of what the court had ruled seven years earlier.

In 2000, the court struck down Nebraska's attempt to ban the procedure that opponents term partial-birth abortion. Known in medical terms as "intact dilation and extraction," it involves removing the fetus in an intact condition rather than dismembering it in the uterus.

With Justice Sandra Day O'Connor in the majority, the court ruled 5 to 4 that Nebraska's law violated abortion rights established in Roe and affirmed in Planned Parenthood v. Casey because it did not contain an exemption for allowing the procedure when a woman's health was threatened.

But in 2007, with O'Connor replaced by Alito, the court in Gonzales upheld a federal ban on the procedure that did not include such an exception.

Kennedy's majority opinion said Congress did not need to provide a health exception, because of its finding that other procedures exist for terminating late-term pregnancies and the procedure is never medically necessary.

He noted that the Casey decision affirmed the right to abortion before viability. But he said it also established that "government has a legitimate and substantial interest in preserving and promoting fetal life."

Kennedy's ruling was shot through with references to government's interest in protecting the unborn and in making sure women knew the consequences of their actions.

He drew the ire of Justice Ruth Bader Ginsburg and others when he discussed the regret a woman might feel about the decision to end her pregnancy.

"It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound" when she learns the details of the intact-dilation-and-extraction process, Kennedy wrote.

In a dissent, Ginsburg struck back at the insinuation that a woman has not fully thought through her decision, or should be protected from making such a choice. "This way of thinking reflects ancient notions of women's place in the family and under the Constitution," said Ginsburg, which "have long since been discredited."

Ginsburg noted that, besides being the first court decision not to require a health exception, it as the first to uphold the ban on a specific procedure.

The "differently composed" court, Ginsburg said, is "hardly faithful" to previous decisions.

One outgrowth of the decision's expansive language on what a woman should know about abortion has been that an increasing number of states require physicians to read scripts about fetal development and consequences of abortion.

Abortion rights proponents call the "informed consent" laws "biased consent" because they substitute language from lawmakers for the words of physicians.

Many states require abortion providers to make ultrasound images of the fetus available to the woman; the Center for Reproductive Rights has filed suit to block an Oklahoma law that requires the ultrasound image be displayed where a woman can see it while a physician describes specific aspects of the fetus.

Nebraska passed a second antiabortion law aimed at "patient-screening" that imposed a wide variety of counseling demands on physicians.

Planned Parenthood of the Heartland challenged the law before it took effect, and a federal judge issued an injunction, saying it was so vague that it would make it virtually impossible for a woman to get an abortion in the state.

Nebraska's antiabortion attorney general, Joe Bruning, agreed not to pursue appeals or try to enforce the law. He said he was convinced that courts would not uphold it and that further litigation "would only mean paying a million dollars to Planned Parenthood" in legal fees.

The 20-week threshold

On the other hand, Bruning said, the bill that bans abortion after 20 weeks is "brilliant in its simplicity."

Flood's bill, which went into effect in October, bans abortion after 20 weeks except when a woman's life is in danger or to save an additional fetus in the womb. It contains no exception for a woman's mental health, or because of the discovery of a fetal anomaly.

Most states' abortion bans, including Nebraska's, begin at 22 or 24 weeks, which in most cases is considered the earliest a fetus could survive outside the womb. The new Nebraska law seems to provide a direct challenge to Supreme Court precedent that government may not unduly burden a woman's right to an abortion pre-viability.

Flood's legislation was built on a premise that Right to Life's Balch has been championing for years: that some studies indicate 20 weeks is the point at which a fetus may begin to experience pain.

Flood acknowledges there is medical disagreement on that point but said the court's Gonzales decision seemed to leave balancing conflicting opinions up to legislators.

He provides the specific citation from Kennedy's opinion: "On Page 163, 'the court has given state and federal legislature wide discretion to pass legislation in areas where there is medical and scientific uncertainty.' "

He is ready with other examples, too, about a state's interest in protecting fetal life. He even notes Ginsburg's dissent, in which she complained that the decision "blurs the line firmly drawn in Casey between pre-viability and post-viability abortions."

Flood understands that he and Ginsburg are in disagreement. "Clearly my bill walks away from viability as a standard and instead substitutes a scientific standard that I think the state of Nebraska has a legitimate and substantial interest in preserving and promoting fetal life at that point."

The bill passed 44 to 5, and state Sen. Danielle Conrad was one of the five. "This legislation makes dramatic changes to every understanding of every court case and every bill and every ruling on this issue over 30 years," she said.

Both Flood and Conrad say that very few women would be affected by the ban - 90 percent of abortions take place in the first trimester. But Conrad said most abortions that take place so late in pregnancy are necessitated by problems that are discovered only then.

"What we're talking about now is forcing women to carry pregnancies that are incompatible with life," she said. "That's a dramatic departure from what medical practice and our jurisprudence has ever said."

Conrad was a constant presence on the floor as the abortion bills were debated, partly to establish a record for a constitutional challenge.

So far, that has not happened. Planned Parenthood of the Heartland President Jill June said her organization's clinics in Nebraska do not offer abortions after 16 weeks, and so her group does not have standing to challenge the law.

The Center for Reproductive Rights's Northup said the Nebraska law is not grounded "in either the Constitution or science." She said she believes it to be "clearly unconstitutional" and adds: "The fact that it has not been challenged yet does not mean that it won't be."

Some abortion rights supporters say privately that a challenge might come if another state adopts Nebraska's model, as seems likely. Those who were active in passing the law seem almost disappointed that the challenge has not arrived yet.

"We can't say with any certainty that this is going to meet constitutional muster," said Nebraska Right to Life Executive Director Julie Schmit-Albin. "But you know what, from our perspective, if we aren't bucking up against Roe, we're not doing our job.

"So we did our job in Nebraska and now it's time for the other states to do their job."

BREAKING NEWS: $13,000 Stolen from Salvation Army in Las Vegas! Loser both on earth & in heaven!

Chris Matthews Wants To Know Why Obama Hasn't Requested A Copy Of His Birth Certificate

Following Hawaii's Governor Neil Abercrombie announcement last week that he intends to put this Birther controversy to rest once and for all, Matthews raised the issue on his show last night.

"I am not a birther, I am an enemy of the birthers."


Said Matthews producing examples of the Hawaiian long-form birth certificate and the digital one that Obama has released: "Why has the president himself not demanded that they put out the initial documents?"

Why indeed. As the Tribune's Clarence Page points out, the president presumably has more important things to do.

Yes, but then why do so many people profess to be skeptical about Obama's birthplace? Asks Matthews: "Are you saying 43% of the country is incorrigibly stupid, or resistant to truth?"


The solution, according to Matthews? Produce the birth certificate.

"Don't we want to know if he can find it? I don't know why the Governor doesn't say, 'snap it up, whoever is there in the Department of Records, send me a copy right now. And why doesn't the president just say, 'send me a copy right now'?"

New Hawaii Governor to Take on Birthers (Remember "birthers" the earth is FLAT!)

Hawaii Gov. Neil Abercrombie is vowing to end the "birther" controversy once and for all.

Birthers are those who believe President Obama was not born in the U.S., despite a mountain of evidence to the contrary. They have long demanded that the state of the Hawaii release the president's original birth certificate, which is not allowed under state law.

Now, Abercrombie says in multiple interviews that he is determined to find a way to release more information about Mr. Obama's birth in an attempt to silence the critics.

"This has to do with the people in Hawaii who love him, people who loved his mom and dad. This has to do with the respect of the office that the president is entitled to," Abercrombie told CBS affiliate KGMB over the weekend.

The governor, a former Democratic congressman who was elected governor last month and took office just a few weeks ago, told CNN yesterday that he directed his attorney general and the state's Health Department director to determine what he is legally able to do to release more documentation "as quick as we can."

The Obama campaign in 2008 posted a "certification of live birth" online, an official document from the state. An original long-form birth certificate is by law not public record in Hawaii, though the director of the Hawaii state Department of Health at the time she had "personally seen and verified" the original. But that did little to stop rumors and conspiracy theories which have persisted among birthers.

Obama's birth on Aug. 4, 1961, at the Kapiolani Maternity and Gynecological Hospital was also recorded in two separate birth announcements in local newspapers.

Abercrombie made clear in the CNN interview that there was nothing Mr. Obama or the White House could do to either expedite or stop his process. In fact, the White House may not want to bring up the issue again, and administration officials would not comment on the governor's remarks in response to a request from CBS News.

"No, no, no - it's not up to the president," Abercrombie said in the CNN interview. "It has nothing to do with the president. It has to do with the people of Hawaii who love him, people who love his mom and dad."

Abercrombie, 72, said this is was a personal issue for him since he was friends with Mr. Obama's parents while they lived in Hawaii.

"It's an insult to his mother and father," he told KGMB. "How would anybody like to have their mother and father in that kind of a situation? I was friends with his mom and dad."

"It's a matter of principle with me... I was here when he was born," he told CNN.

"His father was one of the first scholarship students coming to the United States and he came to the University of Hawaii, which we were very proud (of)," the governor added. "We became good friends."

But despite his efforts, Abercrombie knows he might not be able to silence all those who have a "political agenda."

"We have to take a look at what we can do with that," he told KGMB. "But I can't imagine that we can't find some way to see to it that those who are honest about it, that don't have a political agenda could have no further argument about it."

Could be a date to remember! May help or hurt the quitter's White House move?

Governor: Palin e-mails won't be released 'til May

JUNEAU, Alaska -- The Alaska governor's office says it needs until May 31 to release potentially thousands of e-mails sent and received by former Gov. Sarah Palin.

By that time, more than 2 1/2 years will have elapsed since media outlets, including The Associated Press, requested the e-mails. Palin has been out of office since July 2009.

A work plan submitted to the new attorney general, John Burns, says the Department of Law plans to assign two people to review the records full-time, including a former assistant attorney general with whom the department will contract. According to the plan submitted by public records officer Linda Perez, the cost will be $120,000.

Why Obama weighed in on behalf of Michael Vick

The weirdest story of the morning is President Obama's call to Jeffrey Lurie, the owner of the NFL Eagles. Two things apparently happened during the call: Obama praised the team for giving Michael Vick a second chance, and then he asked some questions about the Eagles' plans to use alternative-energy sources to power the stadium.
Now the White House is spinning the call as the sort of everyday inquiry the president makes into eco-friendly architecture. "The president did place a call to Mr. Lurie to discuss plans for the use of alternative energy at Lincoln Financial Field, during which they spoke about that and other issues," Bill Burton told Mike Allen.

That explanation makes a lot less sense than the one Lurie himself offered, which was that Obama is "passionate" about the fact that "it's never a level playing field for prisoners when they get out of jail.
And he was happy that we did something on such a national stage that showed our faith in giving someone a second chance after such a major downfall.''

Patting Lurie on the back for playing Vick might give the White House communications shop some headaches, but it's also worth doing: About one in 100 Americans are currently behind bars, and more were behind bars at some other point in time. And as this Pew report (pdf) shows in grim detail, the punishment doesn't stop when convicts leave prison: "Serving time reduces hourly wages for men by approximately 11 percent, annual employment by 9 weeks and annual earnings by 40 percent."
And those numbers hide a serious racial tilt: "Incarceration depresses the total earnings of white males by 2 percent, of Hispanic males by 6 percent, and of black males by 9 percent."

Then there's the downstream effects on children and families ("Even in the year after the father is released, family income remains 15 percent lower than it was the year before incarceration"), and on cities with a high population of ex-convicts, and so on. As you might expect, the recession is making all this even worse.

That Obama would think it important that an NFL team made a major statement about the employability of ex-convicts makes sense.
That he'd want to take a risk and throw his weight behind the decision by making that call is admirable. But for the White House to now say that the call was really about energy efficiency in stadium design both makes Obama look a bit Carteresque -- does he really have time to be worrying about the energy efficiency of football stadiums? -- and blunts whatever impact the call itself could have had.
That was a call either worth making or not worth making, but it definitely wasn't worth making if the president wasn't willing to stand behind it.

Palin invents word 'refudiate,' compares herself to Shakespeare (Dummy Update!)

Politico reports that Sarah Palin addressed her now-infamous "refudiate" tweet (see below for the backstory) on Sunday's episode of "Sarah Palin's Alaska." She now says it was a simple typo:

While in the car, Sarah also talked to Todd about the time she tweeted the word "refudiate." "I pressed an F instead of a P and people freaked out," said Sarah, pointing out that her blunder was the second-most-searched word on Google trends. "Make lemonade out of lemons," said Sarah.

At the time, Palin acknowledged in a tweet that she had created a new word.
It is perhaps worth noting that the "F" and "P" keys on a QWERTY keyboard are not near each other.
Moreover, Palin spoke the word "refudiate" in a Fox News appearance before she used it on Twitter: