Medicare may pay for advanced directive counseling by physicians

By a veto-proof majority, Congress has just passed an amendment to Patient Self-Determination Act of 1991 which would include counseling concerning advanced directives as part of the “initial preventive physical examination” (IPPE), a once-in-a-lifetime benefit given to all new Medicare beneficiaries under Part B. 42 U.S.C. 1395x(ww). In other words, physicians will get paid to raise the issues concerning the choices to be made where further efforts to cure disease in the course of the examination.

Sounds like a good idea… but as a practical matter, primary care physicians are economically pressured by both Medicare and private insurers to maximize the number of patients which they can see in the course of a day. Thanks to Ted Kennedy’s unexpected vote last week, the Senate passed legislation replacing the 10.6% pay cut for primary care physicians that went into effect on July 1 with a 0.5% raise through December 31, 2008. (Payments will rise by another 1.1% for calendar year 2009.) This raise is miniscule compared with the payments Medicare makes to specialists. New doctors are avoiding going into geriatrics and primary care because they can make more money in radiology or plastic surgery or other specialties with higher reimbursement rates.

I have to wonder whether, even though physicans will get paid something for counseling about the end-of-life issues, if those discussions will get short-shrift in some cases. Further, these discussions have to be held again and again, as the older patient’s attitudes about treatment and death frequently change as health deteriorates over time. I see no promise that physicians will get paid to raise these issues as the patients’ needs change.

Further, will Massachusetts physicians counsel patients about what can happen if the health care agent or a nursing home or hospital ignores those directives? Massachusetts is one of three states in the US where advanced directives –giving specific directions for care outside a health care proxy — are NOT legally binding. Some physicians may not be aware that there is a procedure to enforce the health care proxy in the Probate Court. These issues concerning patient rights are legal as well as medical — are the doctors going to be encouraging their patients to see their friendly local elder law attorneys? I think not.