If you didn’t see Jon Stewart’s interview with her (you can watch the segments here), or haven’t heard about her otherwise, Betsy McCaughey is a past Lieutenant Governor of New York and a participant over the years of a variety of think tanks at the Conservative end of the spectrum. She has a law degree and a Ph.D. in Constitutional History from Columbia. She has expressed a particular interest in health care issues. Certainly, she has her credentials.
She is also the person who has claimed that the best known of the three health care reform bills being sorted out in the House of Representatives , HR 3200, is, as she said on the Daily Show, “dangerous to seniors.” With that claim, she’s been getting a lot of attention from the Conservative media, and from some Republican legislators (I haven’t seen any of the “Blue Dog” Democrats quoting her; if they have I’m open to correction). Interestingly, she also got a lot of attention in the 1990’s when she also opposed the Clinton health reform proposals, which she also considered dangerous (albeit not on the same grounds). While she has not made the claim, those who have spoken of “Death Panels” have pointed to her work.
I’m not surprised at the attention. She’s attractive, works to be pleasant, and, as I’ve said, she has her credentials. Which is why she surprises me. Jon Stewart was wrong about some items in the specific section of HR 3200, but so was she. And with all her credentials, and her claim to have read the entire bill carefully, that’s more disturbing.
First, anyone can read the bill on line. I haven’t read all 1017 pages. However, in her interview with Stewart, Ms. McCaughey was kind enough to cite pages where she found difficulty. She even suggested that context was important. She pointed out that the statements describing the conversation between patient and physician was on one page, but that the impact of that conversation on the doctor’s quality rating is on another. And was there a hint in her voice that this separation was intended to hide that information, to deceive? Perhaps not; perhaps it was only to suggest Stewart hadn’t read enough. In any case, the pages aren’t that far apart, and when you read them you discover that they’re part of the same numbered section of the bill.
So, I have looked at the portion of the resolution at issue. It is Section 1233, Advance Care Planning Consultation, and it runs from pages 424 to 434 of the resolution. It does include discussion of the consultation, and it does speak about quality measures. However, beyond that there’s almost nothing accurate about what Dr. McCaughey is saying.
First, she speaks of the bill as describing the contents of the consultation, areas that the doctor must address. It does, but for only in terms quite general and quite familiar:
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).
‘‘(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.
Now, there’s absolutely nothing new in any of these. They simply require the physician to point out to the patient resources such as Health Care Treatment Directives, Durable Powers of Attorney for Health Care, and resources for understanding and completing them. These have been in the landscape since the Patient Self-Determination Act was passed in 1991. Where is the set of categories Ms. McCaughey discerns?
They’re not in the next subsection.
‘‘(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).
However, while they’re not here, this is interesting because of what it points to: orders for life sustaining treatment – or perhaps I should write, Orders for Life Sustaining Treatment. For, this section is addressing a new movement in discussing care of patients at the end of life, and ensuring that they are cared for in accordance with their wishes. The efforts to develop Physician Orders for Life Sustaining Treatment (POLST) documents began in Oregon. (I've written about them here.) They are in fact the result of such a consultation, but with an added benefit. Like a health care treatment directive, it provides a form on which a patient’s wishes about care at the end of life can be recorded. Like a Durable Power of Attorney for Health Care, it provides an opportunity to name an agent, the person who speaks for the patient when the patient can’t speak. However, it comes out of a consultation with a physician, and it comes with an additional nuance: it comes as a set of physician orders to carry out the patient’s wishes, orders that by mutual agreement and enabled by the state are recognized by all health care institutions in the patient’s area, whether the particular doctor is credentialed or not. Thus, if a patient has a POLST document and is taken to an emergency room, the POLST document will be recognized as a valid order set whether the completing physician is on staff there or not.
And for a POLST document there are specific criteria. These are described in the bill, and are probably the source of the “list of criteria” Ms. McCaughey is concerned about.
‘‘(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—
‘‘(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;
‘‘(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.’’.
This apparently is her “list.” In her interview on The Daily Show, Ms. McCaughey seemed very concerned about reference to use of antibiotics and to artificial nutrition and hydration. Apparently she was concerned enough to be distracted from reading that this applies whether the patient wishes full treatment or chooses himself or herself to set some limits on treatment.
She was also apparently unaware of the POLST efforts across the country. Now, to be fair neither apparently is Stewart. However, Ms. McCaughey’s lack of awareness is more troubling, especially since she is held up as an expert on health care. If she had been aware, she would know that these are the categories normative for POLST documents. However, the consultations can only result in POLST documents in states where such documents have been approved, and where they are in programs ‘‘guided by a coalition of stake holders [which] 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” – all organizations with an interest in protecting the patient’s rights and wishes.
So, the list of categories that Ms. McCaughey sees as mandated for all advance care planning consultations are in fact categories specific to POLST documents and programs. Moreover such documents are not required in such consultations, and are only possible in states where they are defined and legal, and where a significant number of stake holders are involved, stake holders who from a variety of perspectives have commitments to protecting patients. Certainly, Jon Stewart was unaware of POLST documents, as seen by his repeated reference to life sustaining treatments without reference to POLST programs. However, and again more troubling, it also appears Ms. McCaughey was also unware; and if, as she says, she supports patients’ rights to choose their care at the end of life, she should surely be aware of this movement. With all her credentials, you would think she’d be better informed.
More to come.