A colleague of mine has brought to my attention House Resolution 1898, “Life Sustaining Treatment Preferences Act of 2009,” introduced by Congressman Earl Blumenauer (Democrat of Oregon). The intent of the resolution is to require Medicare to reimburse for a patient’s time with a professional when the purpose is to document patient preferences about treatment at the end of life.
The language of the title and of the bill reflects the movement to develop Physician Orders for Life-Sustaining Treatment (POLST). The point of the movement is to develop forms for a physician and patient to use in recording a patient’s preferences, not simply as a statement of intent, but as an actual set of physician orders. Moreover, the intent is that area physicians and area healthcare institutions (especially hospitals, emergency medical services, Emergency Departments, and long term care facilities) will agree to recognize and carry out those orders, whether or not the specific physician has privileges in that specific institution. Most physician orders are on an individual facility’s forms, and stay in the patient’s records. In the case of POLST, the form stays with the patient, and the patient or the patient’s agent can produce it when a patient is dying, trusting that the doctor’s orders for the patient’s treatment will be followed. The hope is that POLST orders can be implemented more quickly and with less difficulty in interpretation than current Healthcare Treatment Directives.
That raises issues for both institutions and physicians of proper credentialing and privileges. In a metropolitan area of any size, few doctors try to obtain privileges in every institution. There are usually too many institutions, and too little time; and so physicians will focus their practices in one or a few institutions. Rural physicians will rarely have privileges in the metropolitan referral hospitals to which patients in extremis might be transferred. There are issues of standards and liabilities to be addressed. At the same time, those issues aren’t insurmountable, and programs have risen across the country to develop such tools.
What is more difficult, however, is arranging for a good consultation in which a physician or other professional has time to sit down, hear a patient out, explain to a patient the options and issues for care at the end of life, and come to mutual understanding for the orders. Neither public (Medicare, Medicaid, etc) nor private insurers reimburse for that use of a physician’s or other professional’s time. And yet it can take - indeed, it should take – longer than most physician visits. If the patient is to really understand the options, and the professional is to really understand the patient (at least enough to complete the order set), they need time together.
That is the issue that Representative Blumenauer’s bill is intended to address. It would amend relevant Medicare law to add “consultations regarding an order for life sustaining treatment” as an intervention for which Medicare could reimburse.
In adding these consultations it adds a new subsection in the law to describe characteristics of such consultations in some detail. Especially important are the definitions that amended law would provide. It begins with a definition of the consultations themselves:
The term ‘consultation regarding an order for life sustaining treatment’ means, with respect to a qualified individual, consultations between the individual and the individual’s physician (as defined in subsection (r)(1)) (or other health care professional described in paragraph (2)(A)) and, to the extent applicable, registered nurses, nurse practitioners, physicians’ assistants, and social workers, regarding the establishment, implementation, and changes in an order regarding life sustaining treatment (as defined in paragraph (2)) for that individual. Such a consultation may include a consultation regarding--
- ‘(A) 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;
‘(B) the information needed for an individual or legal surrogate to make informed decisions regarding the completion of such an order; and
‘(C) 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).
The Secretary may limit consultations regarding an order regarding life sustaining treatment to consultations furnished in States, localities, or other geographic areas in which such orders have been widely adopted.
‘(2) The terms ‘order regarding life sustaining treatment’ means, with respect to an individual, an actionable medical order relating to the treatment of that individual that--
- ‘(A) 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) and is in a form that permits it to stay with the patient and be followed by health care professionals and providers across the continuum of care, including home care, hospice, long-term care, community and assisted living residences, skilled nursing facilities, inpatient rehabilitation facilities, hospitals, and emergency medical services;
‘(B) effectively communicates the individual’s preferences regarding life sustaining treatment, including an indication of the treatment and care desired by the individual;
‘(C) is uniquely identifiable and standardized within a given locality, region, or State (as identified by the Secretary);
‘(D) is portable across care settings; and
‘(E) may incorporate any advance directive (as defined in section 1866(f)(3)) if executed by the individual.
All of this is well and good. Also good are provisions for grants to establish and support programs for development of POLST-type documents. However, there is a provision that does concern me:
‘(3) The term ‘qualified individual’ means an individual who a physician… (or other health care professional…) determines has a chronic, progressive illness and, as a consequence of such illness, is as likely as not to die within 1 year. (Emphasis mine)
That restriction to those who a physician feels will probably die within a year becomes a significant restriction on POLST programs. After all, age per se is not considered “a chronic, progressive illness;” and yet a patient in his or her 90’s might well not be a good candidate for CPR. In my own setting we have elderly patients who arrive in ER with acute (and not chronic) concerns who request a DNR order, or point out that a Health Care Directive declines CPR.
It is certainly the case that staff see patients for whom they fear doing CPR will do more harm than good. Frail bones break under chest compressions. Inserting a breathing tube or using electric shock have their place, but are also matters of controlled violence. For the patient who’s had a significant stroke – which is, remember, an acute and not a chronic condition – staff don’t want to apply controlled violence when the medical evidence is that it will offer no benefit. Should Medicare not support a POLST conversation for a patient with that concern?And how comfortable with physicians be in determining likelihood of death within one year? One of the continuing issues in hospice care is difficulty physicians have making such a determination for a six-month time frame. All too often, by the time a physician is prepared to acknowledge and share with a patient that together they’ve reached the limit of what therapeutic medicine has to offer, the patient doesn’t have six months or even six weeks, but six days. One might think that one year offers more opportunity than six months; but it might just as well make “likelihood of death” that much harder to determine. Should Medicare not support a POLST conversation for a patient with that concern?
Finally, that’s complicated by the question of what constitutes “a chronic, progressive illness.” With good care patients with such chronic diseases as congestive heart failure, high blood pressure, or diabetes might live for years. However, individual patients may well not do as well; and any of those conditions might lead to related acute events that might well be life threatening. Should Medicare not support a POLST conversation for those patients?
This is a good effort, and one that should, I think, be supported. Reimbursing professionals and institutions for time spent with patients to determine their wishes and to insure that those wishes are followed is in keeping with the ethics lived out in health care today. It shows significant support for maintaining a good doctor-patient relationship, especially in addressing difficult decisions. However, the restriction of that reimbursement to the cases specified is a significant problem. It will leave out so many patients for whom such conversations are not only desirable but also medically reasonable that it will undermine one of the purposes of not only POLST efforts, but of Advance Directives generally: that all patients will have the opportunity to express their concerns and values, and expect that those concerns and values will guide the health care that they will receive.
So, folks, get to your computer or your fax machine. Let your member of Congress know how you feel about this effort; and if you support the effort, address the concern about the restrictions. We as a people have an opportunity to do good for many patients through Medicare reimbursement. I think we ought to do what we can to do good for more people, and not for fewer.