Death Panels in Texas

[eisely]

Now that I have your attention, the op ed below written by a Texas attorney appeared in the Washington Times.

 

End of life decisions are wrenching difficult decisions. Many on this forum have been through this. The question is not whether such decisions will be made as they are made on a daily basis. When the federal government takes over control of the health care industry, the government will be forced almost immediately to deal with this. With so much of health care dollars being spent during the last two years of life, government intrusion is inevitable if the government is paying the bill. So think hard about who you would like to see making these decisions and how such decisions should be made. I for one want the government as far away from this as possible.

 

__________________

 

Former Alaska Gov. Sarah Palin, who says President Obama's heath care reform would result in "death panels," needs to look no further than Texas to see a slippery slope like the one she envisions.

 

In Texas, a legislative provision that many thought was an innocuous proposal to help people has been twisted to snatch end-of-life decisions out of the hands of families.

 

The provision to which Mrs. Palin refers, Section 1233 of America's Affordable Health Choices Act of 2009, would allow Medicare to pay doctors to counsel or steer end-of-life decisions for a patient every five years or more often "if there is a significant change in the health condition of the individual" or an admission to a nursing home or long-term care facility. Both the White House and some members of Congress dispute Mrs. Palin's contention about how this language would play out, but based on what has happened in Texas, Americans should heed her warning.

 

One of the drawbacks of trying to overhaul an industry as large and sweeping as health care on the short schedule demanded by the president is that there is not time to study how the legislation would work in the context of existing state law.

 

The truth is, for many states, Mrs. Palin's assessment likely is dead-on, except the "death panels" would be hospital-run, not government-run. Consider Texas. The Texas Advance Directives Act of 1999 became law with support from a broad ideological spectrum, but one of its unintended consequences has been astounding. When a patient or family wants health care to continue but the attending physician does not, the Texas law allows a hospital committee to have the final say under the amorphous concept of "medical futility."

 

Texas law only requires the hospital to provide the patient and family with 48 hours' notice before a hospital "ethics" committee meets and makes a decision on terminating life support. There are few due-process safeguards in the law to protect patients during this committee proceeding.

 

Once the hospital ethics committee decides that further care is medically futile, the family is given just 10 days to find a facility that will accept the patient, or the hospital and doctors can end curative care with impunity. Virginia law is similar but gives the family 14 days.

 

Furthermore, if the statute is followed, the hospital and others involved are cloaked with complete criminal, civil and licensing immunity. In other words, even if the hospital's decision to pull life support was incorrect, it is immune from lawsuit or prosecution. All this sounds quite like a "death panel" to me. Under Texas law, the hospitals are not just allowed to try to persuade a family to "pull the plug" but are allowed to take the action themselves and end all curative care if the family disagrees.

 

When patients and their families are battling a serious illness, they are in a vulnerable frame of mind. Some physicians and hospitals will try to step in during this emotional time and impose their will even when it goes against the patient's and family's decision and belief system. I have seen numerous Texas cases in which health care providers have tried to split families in an attempt to find someone to support the hospital's desire to end care. In the end, though, under Texas law, the hospital can go against the family's wishes if the family will not agree to end the life of their loved one.

 

The Texas experience should not be ignored in the face of proposed legislation that would nationalize a policy that further goes against individual rights. The proposal is to pay doctors to counsel patients on end-of-life decisions. In practice, those consultations likely would take place frequently, considering that it is left to the doctor to determine what a "significant change in the health condition" is. Further, imagine how worn out senior citizens might feel by the repetitive discussion each time they move between a nursing home, long-term care facility or hospital.

 

The end-of-life provisions of the Obama health care plan would upset the balance of power in health care decision-making in favor of doctors and hospitals and against individuals and families. The federal legislation provides an economic incentive for doctors and hospital administrators to use Medicare funds to start hastening certain patient deaths a bit sooner under existing state laws. In Texas, that balance already is tipped in favor of the health care providers, and the proposed federal legislation would only make matters worse by placing more Medicare dollars on that side of the scale.

 

Sen. Charles E. Grassley, Iowa Republican, is rightly concerned that the end-of-life provisions in the proposed federal law could be "misinterpreted and implemented incorrectly." Federal lawmakers interested in protecting individual and patient rights need to study carefully the end-of-life provisions with the understanding that the law will be implemented in health care settings governed under 50 different sets of state law.

 

Admittedly, the warning of "death panels" is a shocking claim. But when I inform people of the effect of the Texas law and how it has trampled on individual rights, they are understandably shocked. If the Texas Advance Directives Act has shown us anything, it is that governments should leave end-of-life decisions to patients and their families.

 

Robert W. Painter, an attorney at Painter Law Firm PLLC, handles medical malpractice and other litigation matters and has testified on the Advance Directives Act in the Texas Legislature.

 

 

[scoutldr]

After having to watch both my parents die in 1995 (mom from diabetes, and dad from lung and colon cancer), I made the decision that, if faced with a "terminal" prognosis, I would want no extraordinary measures taken to gain a few extra months of "life", filled with pain, emotional suffering, or a morphine-induced stupor. After my FIL died of kidney cancer in 2000, and now watching my MIL struggle for every breath (COPD) as she continues to fight for every minute of life she can grab, regardless of expense or emotional toll on loved ones, my decision is even more entrenched. I do not plan to be selfish and continue living artificially. When God wants me, He can have me. Death is hard on your loved ones, but prolonged dying is even worse.

[FScouter]

There are no "death panels". There is only the Law of Life.

 

"Is it well with you?" he asked.

 

And the old man answered, "It is well."

 

"There be wood beside you," the younger man continued, "and the fire burns bright. The trail is long and they travel fast, go now. It is well?"

 

"It is well. I am as a last year's leaf, clinging lightly to the stem. The first breath that blows, and I fall. My voice is become like an old woman's. My eyes no longer show me the way of my feet, and my feet are heavy, and I am tired. It is well."

 

He bowed his head in content till the last noise of the complaining snow had died away, and he knew his son was beyond recall. Then his hand crept out in haste to the wood. It alone stood between him and the eternity that yawned in upon him. At last the measure of his life was a handful of fagots. One by one they would go to feed the fire, and just so, step by step, death would creep upon him. When the last stick had surrendered up its heat, the frost would begin to gather strength. First his feet would yield, then his hands; and the numbness would travel, slowly, from the extremities to the body. His head would fall forward upon his knees, and he would rest. It was easy. All men must die.

 

He did not complain. It was the way of life, and it was just. He had been born close to the earth, close to the earth had he lived, and the law thereof was not new to him. It was the law of all flesh. The old men he had known when a boy, had known old men before them. Therefore it was true that the tribe lived, that it stood for the obedience of all its members, way down into the forgotten past, whose very resting-places were unremembered. They did not count; they were episodes. They had passed away like clouds from a summer sky. He also was an episode, and would pass away. Nature did not care.

 

London

[Gunny2862]

Medically viable is one thing but for Hospital boards the line between ethical action and fiscal bottom lines regarding viability runs very close together.

 

I don't know that I mind having the options to A) Control my end of life decision and B) Actually be able to implement an active choice. But I really do NOT want someone else choosing for me especially not someone outside my family with a purely financial stake in the question.

[Hal_Crawford]

Interesting that in both Texas and Virginia, conservative state legislatures passed these laws seemingly to benefit/protect the bottom line of the existing profit based health care system. I guess death panels are not a "socialist" phenomenon.

 

Also an interesting coincidence that Texas and Virginia lead the nation in executions. Coincidence?

 

Hal

 

 

[gwd-scouter]

Texas and Virginia - decreasing the surplus population?

[OldGreyEagle]

Well to be honest and truthful, there are already death panels operating in hospitals and in healthcare. Usually they are called Ethics Panels, but the result is the same.

 

Lets say I need a heart transplant or I will die, I go on the heart transplant list, where I go on the list, towards the top or bottom depends on my condition and a few other factors. If my condition worsens maybe I go up, or I improve I go down. If I am subsequently found to have liver cancer, maybe I come off the list. These committees and similar ones to them make decisions every day with death as a possible outcome, thats not talked about.

[eisely]

Another form of a governmental death panel comes from World War I. As I understand it "triage" is a French word. The French military medical services would occasionally be overwhelmed with mass casualties beyond their capability to help. So as quickly as possible the wounded were sorted into three categories; (1)Those who would survive without immediate care who would wait, (2) Those for whom immediate care was both feasible and necessary to give the greatest chance of survival, and (3) Those who were so far gone that little if anything could be done.

 

The principle is the same. Trying to make decisions about who will get the care and who will not get the care based on available resources. Certainly insurance companies are involved today in these decisions in their denial of coverage for some tests and procedures, but at least their decisions are rooted in a private contractual relationship, not government coercion.

 

This is where we are headed with universal coverage which is the real goal of the Obama administration. If it were not so serious, the current controversies would be extremely entertaining. Rarely have so many politicians been caught in so many contradictions in so little time.

[Hal_Crawford]

"Certainly insurance companies are involved today in these decisions in their denial of coverage for some tests and procedures, but at least their decisions are rooted in a private contractual relationship, not government coercion."

 

And we have as little control of the outcome as we would with the government as contract is generally between your insurance company and the hospital. You truly have very little say.

 

I am fortunate enough to have a choice between two health care plans offered by my employer. Some have more, most have only one, many have none at all.

 

As an Army dependent in the 1950s and 60s I grew up with socialized medicine. As far as I can tell it was far more the socialized model than anything proposed by Obama or what exists in the UK, France or Canada today. Frankly, the care was better than what I see from HMOs today.

 

A lot of what we are hearing now is just the insurance industry blowing smoke up our.... well you know where. They do not care about us as anything more than numbers on a spreadsheet.

 

At least if you are getting screwed by the government you can call you congressman and hope for the best. Who do you call if you are getting screwed by Kaiser or Cigna?

 

Nothing is perfect but what we have now is not cutting it. It was reported today that the life expectancy in the US just rose to 78. Compare 78 to other developed countries. We come in number 50 behind a country I have never even heard of (https://www.cia.gov/library/publications/the-world-factbook/rankorder/2102rank.htm). Hooray for us and our quality of care! Our new motto could be "Still better than Albania".

 

Hal

 

 

 

[CalicoPenn]

Interesting tactic from the conservatives - attempt to compare apples and oranges and hope people are too stupid to realize they're being mislead.

 

Section 1233 of America's Affordable Health Choices Act in no way, shape or form resembles the Texas Advance Directives Act of 1999.

 

The Texas Advance Directives Act defines exactly what Texas considers to be the proper form for an Advance Directive (it even provides the exact language that must appear in a Texas Advance Directive) and spells out what responsibilities Physicians and Hospitals are required to follow when presented with an Advance Directive. It also spells out what steps can be done if there are no Advance Directives, and what steps must be done to break an Advance Directive. This act spells out specifics - which isn't surprising because most acts created by state legislatures tend to be pretty specific. Anyone who actually read that act before it was passed should register no surprise that it led to "death panels" in Texas.

 

Section 1233 of the proposed federal legislation doesn't define what an advance directive is, nor does it spell out how advanced directives are to be treated. What Section 1233 does is amend Section 1861 in the Social Security Act which spells out what Medicare will pay for. That's all it does - adds a service - Advance Care Planning Consultation - that Medicare will pay for. There is nothing in Section 1233 (or for that matter, in Section 1861) that makes Advance Care Planning Consultation mandatory - nothing. Anyone who claims otherwise is simply lying. Section 1233 defines what an Advance Care Planning Consultation consists of - information about what kinds of advanced directives are out there, what living wills are, where patients can go to get more information. No where does it state that any patient must have an Advance Care Planning Consultation, and nowhere does it state that a Physician can force a patient to have an Advance Care Planning Consultation against their will. Nowhere - and anyone who claims otherwise is - a liar.

 

All Section 1233 does is allow a doctor to make a claim for payment from Medicare for the consultative appointment. If Aunt Millie just wants to spend 20 minutes with her Doctor to find out what options are out there for her to consider to protect herself and her family, Section 1233 allows Medicare to pay the Doctor instead of forcing Aunt Millie to pay the doctor. The Act makes clear too that these are separate consultations - not consultations made in context with any other visit. Go in to see your Doctor for a Rheumatism consult and you and the Doctor can still discuss advanced planning, with no additional cost. The 5-year limitation is consistent with other limitations imposed by both Medicare and private insurance companies. Medicare pays for certain durable goods, like wheelchairs - but they don't pay for you to buy a new wheelchair every month, or even every year - you're limited to how often you can buy one through Medicare - this 5 year limitation is no different. It also waives the 5 year limitation if there has been a significant change in status. Perhaps Aunt Millie had a consultation a couple of years ago when she was as healthy as an ox. This year she get's cancer, or breaks a hip - she can have another planning consult at Medicare's expense to see if there have been any changes in what's out there, or to discuss whether it makes sense to make any changes to what she's already done. To be brutally frank, anyone who has actually read Section 1233 and comes away believing it will lead to "death panels" needs some remedial lessons in reading comprehension.

 

If there is a flaw in Section 1233, its that it funds consultations with Doctors - perhaps it would be better if it funded consultations with Lawyers and Legal Aid groups instead.

 

In the meantime, Robert Painter is doing what any skilled attorney can do - like a Magician, he's misdirecting the gullible in the hopes they'll never look behind the curtain to learn his trickery. Robert Painter is lying to the people - apparently his personal code of ethics allows him to sleep at night. I guess he was never a Boy Scout.

[FScouter]

Thank you for some real facts; woefully lacking in 99% of news coverage, and forum posts too.

[scoutldr]

As one who deals in federal regulations every day...I will wait with baited breath to see the "regulations" that come out as a result of HR 3200, if passed into law.

 

For example, the OSHA Act of 1970 is relatively short and nebulous...if an OSHA compliance officer cannot find a regulation specific to what he thinks is wrong, he can cite the "General Duty Clause", section 5(a)(1) of the Act..."employers shall furnish a workplace that is free of recognized hazards". But the "regulations", published in the Code of Federal Regulations (CFR) give details such as:

 

"Each end of a platform 10 feet or less in length shall not extend over its support more than 12 inches (30 cm) unless the platform is designed and installed so that the cantilevered portion of the platform is able to support employees and/or materials without tipping, or has guardrails which block employee access to the cantilevered end."

 

and: "Reductions from nominal diameter of more than one-sixty-fourth inch for diameters up to and including five-sixteenths inch, one-thirty-second inch for diameters three-eighths inch to and including one-half inch, three-sixty-fourths inch for diameters nine-sixteenths inch to and including three-fourths inch, one-sixteenth inch for diameters seven-eighths inch to 1 1/8 inches inclusive, three-thirty-seconds inch for diameters 1 1/4 to 1 1/2 inches inclusive;"

 

So...even if the "Healtcare Reform Act" is passed, it will mean nothing until we see the regulatory details. They will probably even specify what color and diameter your Viagra needs to be to meet govt specifications.

 

 

 

 

[Lisabob]

Great point, scoutldr. Supposing this bill (or any other) passes, people can follow the proposed federal regulations that go with the implementation of the bill here: http://www.regulations.gov/search/Regs/home.html#home . As a rule, there is a public comment period prior to federal regs going into effect. If you find something that you feel is outrageous, you should comment on it, and you should also raise heck with your members of Congress, who are supposedly overseeing the federal bureaucracy in most cases. (Congress doesn't write these regulations - federal bureaucrats do.) It is a lot more effective to do this prior to a reg. taking effect, than after the fact.

 

Re: the whole health care debate; I really wish it were possible to have some of these discussions without such hyperbole about "death panels" and so on. And I still don't understand (probably won't ever) why people object to the notion of universal coverage. Doesn't the fact that 1 in 5 Americans - probably including some folks you know and some boys in your troops - lacks insurance worry people? Doesn't the fact that, if you are laid off or fired or "downsized," you might join them, worry people?

 

I won't pretend I like everything, or even understand everything, about the current proposals. I won't pretend the status quo is sustainable, either.

[Hal_Crawford]

Good point Lisabob. Perhaps it might be an eye opener if everyone who gets group health through their work were to call their benefits department and ask how much their payments would be under COBRA. With COBRA you can keep your group health for up to a year after leaving your job but you pay the full freight. How many of the unemployed can afford to drop a grand a month? How long could any of you afford it if you got a pink slip tomorrow?

Hal

[OldGreyEagle]

I may be mxing apples with oranges, I don't know. I am opposed to the health Care reform act as presently written

 

That doesn't mean I am against health care reform. I am not sure I or any body with Health Insurance wants to be stepping over dead bodies as we make my way into the emergency dept. Who knows, at some point that could be me.

 

But just because I want reform doesnt mean any change is good. It doesnt help that the Legislators say they support the bill and then say they havent read it. I think a lot of the reaction and emotin is less about helath Care then itis disatisfaction about the current administrations handling of past events. We had to bail the banks out by Friday or the worls would end, or some such argument. We had to by the Auto companies. It seems like major changes occur because we have to right now, no waiting.

 

For something as deep and personal as Health Care can't we take our time? Take a deep breath and talk rationally about it? We don't need to label one idea as right wing idiocy or left wing pie in the sky. Can we be civil? Apparently not and somewhere the best solutiuon will go undiscovered

 

PS Most you know how much stock I put into Godwins Law, the first mention of Hitler or nazis etc ends the discussion. Can you imagine how hard it was for me when we had the whole Brown Shirts, Nazi things going on? Both sides are doing it, so both sides lose, who then is the winner? Chaos?

 

Our whole system of government is built on compromise. The Congress exisits to give more populous states a voice in the goverment proportionate to their population. But the Senate makes every state the same, 2 votes. The balance of power between the Executive, Legislative and Judicial branches is marvelous. Can't some compromise be worked out or does this have to be like Conan's version of what is best?

 

"... To crush your enemies, see them driven before you... and to hear the lamentation of their women!(This message has been edited by OldGreyEagle)