A Challenge and Opportunity

Medicare, the federal program that offers insurance to 55 million elderly and disabled Americans, released a new set of rules last Wednesday that included reimbursement to doctors for conversations with patients about end-of-life care.

A similar proposal in 2009 that was included in a draft of the Affordable Care Act resulted in fears that “death panels” would be convened and medical aid cut off to the disabled and elderly. While those concerns had no basis in the Obamacare draft, the provision for reimbursing doctors for end-of-life conversations was removed from the bill that was subsequently enacted.

When the Obama administration tried to set up a payment system for such counseling through regulations a few months later, it once again bowed to widespread fears and rescinded the plan.

Now, the administration is trying to bring the idea back. The new plan is slated to take effect in January, although it will be open to public comment for 60 days.

The proposal would allow qualified professionals like nurse practitioners and physician assistants, as well as doctors, to be reimbursed for face-to-face meetings with a patient and any relatives or caregivers the patient wants to include. For our community, this would seem to be something of a double-edged sword.

It is no secret that many in the medical profession feel, whether for philosophical reasons or out of economic concerns, that life lacking “quality” — that is to say, which doesn’t allow for the sort of physical activity society values — should not be medically prolonged. Insurance companies have a particular stake in the curtailing of expensive treatments to extend “compromised” lives. And the insurance industry has, in assorted ways, exerted pressures on doctors in the past.

Observant Jews’ understanding of life’s worth, however, is very different from that of much of the surrounding society, including many of its medical professionals. Halachah regards a moment of life, even supine in a hospital bed, as infinitely valuable. And so we, upon consultation with our halachic authorities, may well opt for treatment or the maintenance of life-support systems in cases where the conventional medical “wisdom” might counsel otherwise.

When a doctor or nurse practitioner or physician assistant sits down with a patient to discuss what treatments should be performed or shunned in the event the patient becomes incapacitated and unable to communicate his wishes, the conversation may well come to reflect the medical professional’s own personal convictions. That is something worthy of our concern.

And in fact, while major medical organizations have endorsed Medicare’s proposal, the National Right to Life Committee opposes it on grounds that it could lead to patients being pressured to forgo treatment.

And it’s not only Medicare patients who will be affected by the provision. Medicare policy often sets the standard for private insurers as well. Some such insurance companies have already begun covering “advance care planning” conversations.

Planning ahead for dire medical circumstances, however, is in fact an important thing. And the likely proliferation of doctor-initiated discussions of end-of-life issues need not present our community with any insurmountable challenge. The offer of such conversations, on the contrary, can serve to focus an observant patient on the importance of making his desire in such circumstances clear.

Indeed, as patients, we should respond to a medical professional’s offer for counseling by making clear our will that decisions about any treatments should be made by a posek of our choice, or a trusted family member in consultation with such a posek.

And the mechanism for recording that desire and ensuring that it will be met has long been easily within reach. For many years, Agudath Israel of America has offered, at no charge, a form to be filled out that indicates which halachic authority one wishes to be consulted in end-of-life situations. The Halachic Living Will is legally binding in many states and no attorney is necessary to designate one’s health care proxy.

Copies of the document can be entrusted to appropriate family members, and a card indicating that a Halachic Living Will for an individual exists is also available from Agudath Israel’s Chayim Aruchim project. The organization also helps people register the Halachic Living Will with a national registry.

All of us should avail ourselves of the opportunity to ensure that our entire lives are governed by halachah. And avail ourselves, too, of the opportunity to encourage others — friends, relatives and casual acquaintances alike — to do the same.