Betsy McCaughey was on The Daily Show last night. Don’t know who she is? Lucky you. She seems as mental and single-minded as Orly Taitz (Queen of the Birthers), but her personal gripe is the “mandatory” end-of-life counseling in the health care reform bills … which isn’t mandatory at all and has nothing to do with the euthanizing old people.

Her particular complaint at the moment seems to be that living wills and so on are mandatory, even though the bill says no such thing, and that this will lead to killing old people against their will and doctors working within the Medicare system being chastised (in the form of lower pay) for not killing old people. Her proof? A single sentence from one of the House versions of the health reform bill, in a section that will amend the Social Security Act, which involves the quality reporting system employed to collect data on the quality of care received by beneficiaries of Medicare.

Such measures shall measure both the creation of and adherence to orders for life sustaining treatment.

If that seems rather innocuous to you, it should. When reading the section of the proposed health reform bill in the context of where this section will be placed in the Social Security Act, it boils down to this:

Doctors who treat Medicare patients can voluntarily take part in what is known as the Physician Voluntary Reporting Program, which I mentioned earlier is designed to gather data to improve outcomes for Medicare recipients. Please note the word “voluntary” in the name of the program. Doctors do not have to take part in the reporting. There is nothing mandating they report anything to this program.

This data is then used by Quality Improvement Organizations, which, as the name might imply, work to improve the quality of care for Medicare recipients. Once again, this is voluntary on the part of hospitals. They do not have to be involved with these organizations, though I do think it should be noted that hospitals taking part do seem to give better quality care. Also the QIO handle patient complaints and appeals about their care and rectify these situations.

All this still seems very innocuous and, in fact, helpful. It’s all entirely voluntary, and no hospital or doctor is in any way required to take part in any of the data collection or quality improvement measures. There’s two-thirds of her argument in the trash can right there.

But wait! She insists it is mandatory, even though she admits it never says any such thing! Her proof in this case is Medicare’s Pay-for-Performance Initiatives. These initiatives are essentially bonus payments to hospitals and doctors who provide outstanding care and have the best outcomes. She says doctors providing care for Medicare recipients will have their pay from Medicare cut if they don’t force patients to have the end-of-life counseling and file end-of-life care orders. She is, of course, not speaking the truth.

To begin with, the quality of care for the Pay-for-Performance Initiatives are tied, once again, to the voluntarily provided data collection previously mentioned, as well as on patient complaints about the care they have been provided, and data collected on whether or not the health care providers are following the standard Medicare protocols. In short, health care providers not following Medicare protocols and/or having numerous patient complaints and/or not working to improve the quality of care they provide will not receive bonus payments from the Pay-for-Performance Initiatives for improving care or providing outstanding care with excellent outcomes.

Yes, I said “bonus” payments. Not receiving a bonus is not the same as having one’s pay cut. What won’t happen is the doctor or hospital getting paid less than the standard Medicare payments, so long as they are following protocols and aren’t providing horribly substandard care (which would lead to larger problems than not getting a bonus). They just won’t get a bonus. A bonus is –or should be– something one receives for going above and beyond and doing a great job.

Now that I have addressed her irrational and ill-conceived argument against the end-of-life counseling provision in the health care reform bill(s), let me share my thoughts on the matter.

I have no problem with health care providers taking part in voluntary reporting and programs designed to improve the quality of care they give. I have no problem with said health care providers receiving bonus payments for providing exceptional care. In fact, I would have no problem with any of the entirely voluntary programs being mandatory and the information gathered being readily and freely available to all health care consumers. I would like to know which doctors aren’t discussing all available options for end-of-life care and treatments and all potential outcomes from said care and treatments, and I most definitely would like to know which doctors are not adhering to end-of-life orders created by their patients.

Let me re-quote the statement Ms. McCaughey has based her entire argument upon:

Such measures shall measure both the creation of and adherence to orders for life sustaining treatment.

Wouldn’t you like to know that if you’d created an end-of-life order stating you wanted everything –including the kitchen sink– thrown at you at the end of your life to sustain your life that your doctor was going to follow that order to the letter and not decide for himself you are a goner so why bother? For that matter, if you created an end-of-life order stating you did not want anything thrown at you to sustain your life when you are dying, wouldn’t you be upset if your doctor did not abide by that and you woke up hooked up to machines you didn’t want to be hooked up to … in pain, suffering, and still dying? I would, and I would want to avoid being under the care of any doctor who did not abide by a patients wishes … at the end of life or any other time.

Furthermore, if you are partaking in an end-of-life counseling session with a doctor, wouldn’t you want him to provide information on all available treatments and options and not leave something out of the discussion because he personally doesn’t agree with it? It isn’t possible to make sound end-of-life plans without knowing all available options and potential outcomes, and for your average human being, the creation of such end-of-life orders isn’t generally something one sits down one afternoon and just crafts in five minutes. It requires some measure of knowledge not only of the potential illnesses and injuries which might call such an order to be acted on but also the legal methods by which they are created to make them actionable and enforceable.

As we have seen during this month’s town hall meetings, a great many people do not at all even understand what an end-of-life order is or what it does. It isn’t “pulling the plug on grandma” … unless that’s what grandma wants. End-of-life orders empower patients to make their own decisions at a time when emotional factors are less likely to be the motivating force for medical decisions. They are not orders from the government for enforced euthanasia, and, in fact, they remove both the government and health care providers from being able to make decisions against the patient’s wishes. A patient can just as easily have an end-of-life order that states “Keep me alive, no matter what!” as they can have one that states “Don’t do anything to sustain my life, no matter what!” and both of these orders should be equally followed by health care providers … no matter what their feelings on the matter are.

The foremost problem with Ms. McCaughey’s reading of the proposed health care reform bill(s) is she either refuses to read it with an unbiased eye. Anyone reading or researching something that has an outcome of what they expect to find will be able to twist anything they read to fit their possibly skewed expectations. Additionally, the ability to read and comprehend English is important. The words “mandatory” and “voluntary” are on opposite ends of a verbal spectrum. Something cannot be both mandatory and voluntary at the same time. These are not subjective words. They have solid, objective meanings. I suggest Ms. McCaughy spend some time with a dictionary.

Additionally, when reading legal documents –legislation in particular– one must read it in the context it will eventually reside. That one sentence statement I have quoted twice earlier in this post for example, will eventually reside in the Social Security Act. It is an amendment to said act. If it isn’t read within the context of where it will reside once being passed, there is no way to understand what its implications will be. Occasionally, this requires reading and compiling statements, amendments, and information from even more than one source. Certainly, it can be confusing for someone unaccustomed to reading laws and legislation or for anyone too lazy to take the time to compile the necessary to put things in the order they belong, but it’s not impossible for someone with reading comprehension in the English language and the willingness to take time to piece things together and look at the whole without any preconceived notions of what they expect to find to understand legislation … even without a college education.

I am growing weary of the entire health care reform debate, mostly because it isn’t much of a debate. On one side there are people capable of reading and understanding the meanings of words and sentences, and on the other side there are people who are seemingly incapable of doing so and either ignorantly or maliciously propagating lies … or just sticking their fingers in their ears and screaming “NO!” without bothering doing any reading at all. In order to have a debate on a subject, both sides must be arguing from points of fact which prove their position. Truth vs. lies isn’t a debate, or at least it isn’t a debate worth having.

An Aside: When making arguments, most notably in public and on televisions programs, it does help to not only have notes but to have the information one wants to use to argue one’s point in an easily accessible format. I realize Ms. McCaughey enjoys carrying around large notebooks containing the entirety of H.R. 3200′s text for the shock value provided by the apparent size of the thing, but shuffling through pages trying to find the page one wants to argue about and from –and not being able to find it quickly– is, in a word, unprofessional and neither helps her argument nor makes her appear to be informed.

Additionally, though the full text of said bill when printed out in the standard legal document form does, in fact, look like entirely too much text for any human to read and comprehend in a single sitting, when condensed down from the wide-margin, double-spaced, and single-sided printing format used in our legal and legislative documents, it’s no longer than a Harry Potter novel, and the language contained in it is no more complex. I know both children and adults who read Harry Potter novels in less than a day. Of course, those are fun to read, aren’t they?

Behind the cut are videos, quoted information, and links for the programs, bills, and people discussed in this post.

The Wikipedia article on Betsy McCaughey, which is worth a read if you are unfamiliar with this woman and her somewhat tenuous relationship with the world of facts.

The Daily Show Betsy McCaughey interview Part One:
(broadcast 8/20/2009)

The Daily Show Betsy McCaughey interview Part Two:
(broadcast 8/20/2009)

The Daily Show Betsy McCaughey extended interview Part One:
(not broadcast and only available online)

The Daily Show Betsy McCaughey interview Part Two:
(not broadcast and only available online)

Physician Voluntary Reporting Program (linked previously in post):

As part of its overall quality improvement efforts, CMS is launching the Physician Voluntary Reporting Program (PVRP). This new program builds on Medicare’s comprehensive efforts to substantially improve the health and function of our beneficiaries by preventing chronic disease complications, avoiding preventable hospitalizations, and improving the quality of care delivered. Under the voluntary reporting program, physicians who choose to participate will help capture data about the quality of care provided to Medicare beneficiaries, in order to identify the most effective ways to use the quality measures in routine practice and to support physicians in their efforts to improve quality of care. Voluntary reporting of quality data through the PVRP will begin in January 2006.

Given the recognized need for evidence-based quality measures to help improve the quality of health care services, and the time required to implement processes to obtain and use such measures effectively, a voluntary program can help Medicare and physicians become better positioned to usher in a system that promotes higher quality and rewards better health care delivery.

Quality Improvement Organizations (linked previously in post):

By law, the mission of the QIO Program is to improve the effectiveness, efficiency, economy, and quality of services delivered to Medicare beneficiaries. Based on this statutory charge, and CMS’ Program experience, CMS identifies the core functions of the QIO Program as:

* Improving quality of care for beneficiaries;
* Protecting the integrity of the Medicare Trust Fund by ensuring that Medicare pays only for services and goods that are reasonable and necessary and that are provided in the most appropriate setting; and
* Protecting beneficiaries by expeditiously addressing individual complaints, such as beneficiary complaints; provider-based notice appeals; violations of the Emergency Medical Treatment and Labor Act (EMTALA); and other related responsibilities as articulated in QIO-related law.

Medicare Pay-for-Performance Initiatives (linked previously in post):

Medicare has various initiatives to encourage improved quality of care in all health care settings where Medicare beneficiaries receive their health care services, including physicians’ offices and ambulatory care facilities, hospitals, nursing homes, home health care agencies and dialysis facilities.

The foundation of effective pay-for-performance initiatives is collaboration with providers and other stakeholders, to ensure that valid quality measures are used, that providers aren’t being pulled in conflicting directions, and that providers have support for achieving actual improvement. Consequently, to develop and implement these initiatives, CMS is collaborating with a wide range of other public agencies and private organizations who have a common goal of improving quality and avoiding unnecessary health care costs, including the National Quality Forum (NQF), the Joint Commission of the Accreditation of Health Care Organizations (JCAHO), the National Committee for Quality Assurance (NCQA), the Agency for Health Care Research and Quality (AHRQ), the American Medical Association (AMA), and many other organizations. CMS is also providing technical assistance to a wide range of health care providers through its Quality Improvement Organizations (QIOs).

Through these collaborative efforts, CMS is developing and implementing a set of pay-for-performance initiatives to support quality improvement in the care of Medicare beneficiaries. In addition to the initiatives for hospitals, physicians, and physician groups described below, CMS is also exploring opportunities in nursing home care – building on the progress of the Nursing Home Quality Initiative – and is considering approaches for home health and dialysis providers as well. Finally, recognizing that many of the best opportunities for quality improvement are patient-focused and cut across settings of care, CMS is pursuing pay-for-performance initiatives to support better care coordination for patients with chronic illnesses.

Full bill text [H.R. 3200] available in easily searchable PDF format. The section relevant to Ms. McCaughey’s argument can be found on pages 424 through 434. The full text is also available online in HTML format here.

Pages 424-434 of H.R. 3200:

SEC. 1233. ADVANCE CARE PLANNING CONSULTATION.

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(a) Medicare-CommentsClose CommentsPermalink

(1) IN GENERAL- Section 1861 of the Social Security Act (42 U.S.C. 1395x) is amended

(A) in subsection (s)(2)–CommentsClose CommentsPermalink

(i) by striking ‘and’ at the end of subparagraph (DD);

(ii) by adding ‘and’ at the end of subparagraph (EE); and

(iii) by adding at the end the following new subparagraph:

‘(FF) advance care planning consultation (as defined in subsection (hhh)(1));’; and

(B) by adding at the end the following new subsection:

‘Advance Care Planning Consultation

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‘(hhh)(1) Subject to paragraphs (3) and (4), the term ‘advance care planning consultation’ means a consultation between the individual and a practitioner described in paragraph (2) regarding advance care planning, if, subject to paragraph (3), the individual involved has not had such a consultation within the last 5 years. Such consultation shall include the following:

‘(A) An explanation by the practitioner of advance care planning, including key questions and considerations, important steps, and suggested people to talk to.

‘(B) An explanation by the practitioner of advance directives, including living wills and durable powers of attorney, and their uses.

‘(C) An explanation by the practitioner of the role and responsibilities of a health care proxy.

‘(D) The provision by the practitioner of a list of national and State-specific resources to assist consumers and their families with advance care planning, including the national toll-free hotline, the advance care planning clearinghouses, and State legal service organizations (including those funded through the Older Americans Act of 1965).

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‘(E) An explanation by the practitioner 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 under this title.

‘(F)(i) Subject to clause (ii), an explanation of orders regarding life sustaining treatment or similar orders, which shall include–

‘(I) the reasons why the development of such an order is beneficial to the individual and the individual’s family and the reasons why such an order should be updated periodically as the health of the individual changes;

‘(II) the information needed for an individual or legal surrogate to make informed decisions regarding the completion of such an order; and

‘(III) the identification of resources that an individual may use to determine the requirements of the State in which such individual resides so that the treatment wishes of that individual will be carried out if the individual is unable to communicate those wishes, including requirements regarding the designation of a surrogate decisionmaker (also known as a health care proxy).

‘(ii) The Secretary shall limit the requirement for explanations under clause (i) to consultations furnished in a State–

‘(I) in which all legal barriers have been addressed for enabling orders for life sustaining treatment to constitute a set of medical orders respected across all care settings; and

‘(II) that has in effect a program for orders for life sustaining treatment described in clause (iii).

‘(iii) A program for orders for life sustaining treatment for a States described in this clause is a program that–

‘(I) ensures such orders are standardized and uniquely identifiable throughout the State;

‘(II) distributes or makes accessible such orders to physicians and other health professionals that (acting within the scope of the professional’s authority under State law) may sign orders for life sustaining treatment;

‘(III) provides training for health care professionals across the continuum of care about the goals and use of orders for life sustaining treatment; and

‘(IV) is guided by a coalition of stakeholders includes representatives from emergency medical services, emergency department physicians or nurses, state long-term care association, state medical association, state surveyors, agency responsible for senior services, state department of health, state hospital association, home health association, state bar association, and state hospice association.

‘(2) A practitioner described in this paragraph is–

‘(A) a physician (as defined in subsection (r)(1)); and

‘(B) a nurse practitioner or physician’s assistant who has the authority under State law to sign orders for life sustaining treatments.

‘(3)(A) An initial preventive physical examination under subsection (WW), including any related discussion during such examination, shall not be considered an advance care planning consultation for purposes of applying the 5-year limitation under paragraph (1).

‘(B) An advance care planning consultation with respect to an individual may be conducted more frequently than provided under paragraph (1) if there is a significant change in the health condition of the individual, including diagnosis of a chronic, progressive, life-limiting disease, a life-threatening or terminal diagnosis or life-threatening injury, or upon admission to a skilled nursing facility, a long-term care facility (as defined by the Secretary), or a hospice program.

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‘(4) A consultation under this subsection may include the formulation of an order regarding life sustaining treatment or a similar order.

‘(5)(A) For purposes of this section, the term ‘order regarding life sustaining treatment’ means, with respect to an individual, an actionable medical order relating to the treatment of that individual that–

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‘(i) is signed and dated by a physician (as defined in subsection (r)(1)) or another health care professional (as specified by the Secretary and who is acting within the scope of the professional’s authority under State law in signing such an order, including a nurse practitioner or physician assistant) and is in a form that permits it to stay with the individual and be followed by health care professionals and providers across the continuum of care;

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‘(ii) effectively communicates the individual’s preferences regarding life sustaining treatment, including an indication of the treatment and care desired by the individual;

‘(iii) is uniquely identifiable and standardized within a given locality, region, or State (as identified by the Secretary); and

‘(iv) may incorporate any advance directive (as defined in section 1866(f)(3)) if executed by the individual.

‘(B) The level of treatment indicated under subparagraph (A)(ii) may range from an indication for full treatment to an indication to limit some or all or specified interventions. Such indicated levels of treatment may include indications respecting, among other items–

‘(i) the intensity of medical intervention if the patient is pulse less, apneic, or has serious cardiac or pulmonary problems;

‘(ii) the individual’s desire regarding transfer to a hospital or remaining at the current care setting;

‘(iii) the use of antibiotics; and

‘(iv) the use of artificially administered nutrition and hydration.’.

(2) PAYMENT- Section 1848(j)(3) of such Act (42 U.S.C. 1395w-4(j)(3)) is amended by inserting ‘(2)(FF),’ after ‘(2)(EE),’.

(3) FREQUENCY LIMITATION- Section 1862(a) of such Act (42 U.S.C. 1395y(a)) is amended–

(A) in paragraph (1)–

(i) in subparagraph (N), by striking ‘and’ at the end;

(ii) in subparagraph (O) by striking the semicolon at the end and inserting ‘, and’; and

(iii) by adding at the end the following new subparagraph:

‘(P) in the case of advance care planning consultations (as defined in section 1861(hhh)(1)), which are performed more frequently than is covered under such section;’; and
(B) in paragraph (7), by striking ‘or (K)’ and inserting ‘(K), or (P)’.

(4) EFFECTIVE DATE- The amendments made by this subsection shall apply to consultations furnished on or after January 1, 2011.

(b) Expansion of Physician Quality Reporting Initiative for End of Life Care-

(1) Physician’S QUALITY REPORTING INITIATIVE- Section 1848(k)(2) of the Social Security Act (42 U.S.C. 1395w-4(k)(2)) is amended by adding at the end the following new paragraphs:

‘(3) Physician’S QUALITY REPORTING INITIATIVE-

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‘(A) IN GENERAL- For purposes of reporting data on quality measures for covered professional services furnished during 2011 and any subsequent year, to the extent that measures are available, the Secretary shall include quality measures on end of life care and advanced care planning that have been adopted or endorsed by a consensus-based organization, if appropriate. Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment.

‘(B) PROPOSED SET OF MEASURES- The Secretary shall publish in the Federal Register proposed quality measures on end of life care and advanced care planning that the Secretary determines are described in subparagraph (A) and would be appropriate for eligible professionals to use to submit data to the Secretary. The Secretary shall provide for a period of public comment on such set of measures before finalizing such proposed measures.’.

(c) Inclusion of Information in Medicare & You Handbook-

(1) MEDICARE & YOU HANDBOOK-

(A) IN GENERAL- Not later than 1 year after the date of the enactment of this Act, the Secretary of Health and Human Services shall update the online version of the Medicare & You Handbook to include the following:

(i) An explanation of advance care planning and advance directives, including–

(I) living wills;

(II) durable power of attorney;

(III) orders of life-sustaining treatment; and

(IV) health care proxies.

(ii) A description of Federal and State resources available to assist individuals and their families with advance care planning and advance directives, including–
(I) available State legal service organizations to assist individuals with advance care planning, including those organizations that receive funding pursuant to the Older Americans Act of 1965 (42 U.S.C. 93001 et seq.);

(II) website links or addresses for State-specific advance directive forms; and

(III) any additional information, as determined by the Secretary.

(B) UPDATE OF PAPER AND SUBSEQUENT VERSIONS- The Secretary shall include the information described in subparagraph (A) in all paper and electronic versions of the Medicare & You Handbook that are published on or after the date that is 1 year after the date of the enactment of this Act.

And on the off-chance you have no idea who Orly Taitz is, here’s the article at Wikipedia about her, and well as one on the Birther movement in general.