End-of-life “conversations” began in Bush years, but Rockefeller wrote the bill

Yes, the Bush administration did introduce a “discussion” benefit as part of the 2003 Medicare Prescription Drug, Improvement, and Modernization Act (also known as the Prescription Drug Bill, or MMA — signed into law as PL 108-173).  However, there was no end-of-life counseling involved in the discussion.  The session was a one-time only “initial preventive physical examination” now known as the “Welcome to Medicare” exam.  The consultation was to consist of “a physical examination (including measurement of height, weight, and blood pressure, and an electrocardiogram) with the goal of health promotion and disease….”

End-of-life counseling did not come into the picture until 2008 when a bill sponsored by Charles Rangel (D-NY) added advance care planning to the “Welcome to Medicare” exam.  That “benefit” (passed in 2008 and available in 2009 as the MIPPA benefit) paid the doctor to talk to seniors one time to encourage them to make end-of-life plans.

But the social planners pushing for Obamacare feared that one benefit didn’t go far enough in terms of cost containment. In introducing further legislation later in 2009 (S.1150), Sen. Jay Rockefeller (D-WV) took credit for creating the MIPPA benefit, but complained that very few patients chose this end-of-life counseling:

[The 2008] Medicare Improvements for Patients and Providers Act [MIPPA], PL 110– 275, took a significant step forward toward improving advance care planning. MIPPA included a provision that I authored, requiring physicians to provide an advance care planning consultation as part of the Welcome to Medicare physical exam. Unfortunately, less than 10 percent of new enrollees use the Welcome to Medicare visit. The MIPPA provision also does not address the advance care planning needs of existing Medicare enrollees.

This lack of counseling was costing the government money.  Rockefeller worried that “80 percent of all deaths occur in hospitals—the most costly setting to deliver care.”

His answer was to expand the incentive via S.1150, portions of which later became section 1233 of the Obamacare legislation and were dropped after public outcry. S.1150 featured multiple counseling sessions and enabled what Charles Lane of the Washington Post called the “’formulation’ of a plug-pulling order.”  Rockefeller said in introducing the new, improved benefits as part of S.1150

The legislation . . . establishes physician payment under Medicare, Medicaid, and CHIP for vital patient advance care planning conversations. It provides help in documenting decisions from these conversations in the form of advance directives and in the form of actionable orders for life sustaining treatment. It also takes steps to address the problem of accessing advance directives when needed, including state grants for electronic registries.

While it may not duplicate the now deleted section 1233 of the Obamacare legislation, this newest CMS rule now enforces more intrusive end of life counseling.  Instead of the single “Welcome to Medicare” benefit Rockefeller found so inadequate in 2008, the new rule pays providers to conduct such  “conversations” repetitively (as in S.1150) only now they will occur during the annual “wellness” visits like those established in Obamacare Section 1233.

Ultimately, S.1150, and Section 1233 of the Obamacare legislation and this new CMS ruling all share an intent that is even more insidious than that found in the original MIPPA “Welcome to Medicare” benefit.