Now, back to where Jon Stewart and Betsy McCaughey were wrong (all right, I’m more concerned with how Betsy McCaughey was wrong, but she wasn’t alone).
The second issue that Betsy McCaughey is concerned about in HR 3200 is inclusion of advance care planning consultations in physician quality measures. In the interview Jon Stewart didn’t really address this concern. Unfortunately, early on he had latched on to her idiosyncratic interpretation of the language in the section of the resolution under discussion and didn’t really go into detail that much himself. I wish he’d addressed this in detail.
The relevant passage from HR 3200 is as follows:
‘‘(3) PHYSICIAN’S QUALITY REPORTING INITIATIVE.—
‘‘(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.
Now, this includes the language that so concerns Ms. McCaughey; specifically, “Such measures shall measure both the creation of and adherence to orders for life sustaining treatment.” Her interpretation of this is that it creates incentive for the physician to encourage the patient or perhaps the patient’s family to follow the guidelines expressed in the advance directive or POLST document, even if the patient’s wishes have changed. She comes to this interpretation because quality measures are expected to have an impact on physician reimbursement under Medicare.
Like so many misunderstandings, this one has some truth involved in it. In fact quality measures are expected to have an impact on physician reimbursement under Medicare. However, a couple of the premises for her alarm are incorrect. First and foremost, not only are there no such quality measures defined in the proposed bill, any measures that do get defined will not be defined by the Federal Government, whether in Congress or in the Center for Medicare/Medicaid Services (CMS). Any such measures under this resolution would be “adopted or endorsed by a consensus-based organization.” Now, it might not be clear what would constitute a “consensus-based organization,” but it certainly isn’t either a group of politicians or of CMS bureaucrats. That is, of course, if such measures are developed at all, since the paragraph notes that they will only be developed “if appropriate.”
Moreover, the concern that any measures would “measure both the creation and adherence to orders for life sustaining treatment,” misunderstands both the context within the resolution and in our current health care system. The emphasis of Section 1233 has been protection of the patient’s right to make decisions about end-of-life care, and expect them to be followed. One of the reasons that this is a concern is resistance of physicians to even acknowledge that the patient has come to an end-of-life situation in the first place. The point of discussing such measures as hospice and palliative care is a recognition that there remain limits to what medical care can provide; or, as I periodically remind folks, the mortality rate of being human is 100%. For all of us, there will come a time when there won’t be anything more therapeutic care can offer, whether we’re prepared to change our goals or not.
While there are patients who want to pursue all possibilities no matter what, the greater difficulties are physicians who refuse to acknowledge their limits. There are many physicians who see their purpose as defeating disease, regardless of the consequences for the patient – or, for that matter, of the patient’s wishes. Perhaps there aren’t quite as many as there used to be. Medical education and residency programs have changed, especially in respecting the autonomy of the patient (and, after all, we are always fighting the last war). However, the difficulties remain. We still see too many patients suffering through difficult and uncomfortable treatments that are known at the time to offer little. We still see too many patients living with pain because physicians know too little about palliative care and adequate pain management. We still see too many patients whose physical existences are extended but their lives not enhanced because physicians consider neither the limitations of medicine nor the wishes of their patients.
In that light, the importance of measuring adherence to advanced care plans is clear – that is, the importance of measuring how consistently physicians adhere to the patients’ wishes. When the patient is able to speak, this is not an issue. The principle of autonomy is so pervasive in health care that it is a rare physician who will not do what the patient wants, even if the physician thinks the care futile (after all, there’s a good reason we speak of this autonomy as one of the principles of the “Georgetown Mantra”. If the patient’s wishes have changed, the current wishes will be followed.
Rather, the concern arises when the patient is not able to speak. In that instance, we wouldn’t be measuring the patient’s adherence, because the patient is no longer making decisions. Rather, we would be measuring the physician’s adherence with the patient’s wishes as we know them. Would it be possible that the patient’s wishes had changed? It’s not impossible, but on what basis would we make such a presumption? It is possible that the patient’s family might have a different perspective? Perhaps; but how would it be right for us to support even family in contravening the patient’s wishes? It is worth noting that best practice is not to ask family members what their wishes are, but what they know of the patient’s wishes.
Still, let us imagine that such measures were developed by the “consensus-based organization,” including measures of how well a doctor adheres to the patient’s wishes. That does not mean that they would be adopted. Here is the next paragraph:
‘‘(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.’’
Thus, these measures, developed “by a consensus-based organization, if appropriate,” would be publicized and subject to public review before being finalized, much less utilized. It’s hard to develop much anxiety about a set of measures subject to so much review and, indeed, so tentative.
That also raises the last point on which Ms. McCaughey seems confused (and, really, Jon Steward was no better). Ms. McCaughey and many others have spoken of HR 3200 as if it were the law under consideration. In fact, that’s far from certain. There are at least two other proposals in the House of Representatives. There are also two proposals under discussion in the Senate. So, before we see an actual law, there will be to be three sessions of negotiation: one in the House, one in the Senate, and one in Conference. Really, there will be four, because there won’t be a law until the form agreed in Conference is agreed once again in both Houses. Ms. McCaughey might well think these provisions are bad ideas. However, things are far enough from resolution that such intense fear-mongering seems more than a bit of a stretch.
Unless, of course, what you really want is to disrupt the process.
One of my favorite Nasruddin stories is of the day a neighbor wanted to borrow his clothesline. He answered, “I can’t lend it out. It’s in use.”
“What are you using it for,” the neighbor asked.
“I’m using it to dry flour.”
“You can’t use a clothesline to dry flour!” said the neighbor. “That’s just an excuse!”
“How well it works is none of your business. And it’s a good enough reason if I don’t really want to lend the clothesline anyway.”
So, this discussion of quality measures to induce physicians to violate or inappropriately influence the wishes of patients doesn’t make sense. It doesn’t meet standards of logic, based on reading the wording of the resolution, much less on the problems in health care. Of course, she could simply misunderstand what she’s reading; after all, Jon Stewart appears to have himself. But then, she is an attorney, with a Ph.D. in constitutional history. She certainly believes she understands. So, I have to wonder, just how is it that she gets so much so wrong?
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