The ACP Advocate Blog

by Bob Doherty

Tuesday, July 21, 2015

Putting to Rest the “Death Panel” Lie

Earlier this month, Medicare issued a proposal to begin paying physicians for the time and work involved in engaging their patients in advance care planning.  If finalized by the agency, the new benefit will be available to physicians and their Medicare patients starting in 2016.

It’s about time!  For many years now, ACP has championed advance care planning and has urged Medicare and other insurers to cover it.  As articulated in our Ethics Manual, “Advance care planning allows a person with decision-making capacity to develop and indicate preferences for care and choose a surrogate to act on his or her behalf in the event that he or she cannot make health care decisions. It allows the patient's values and circumstances to shape the plan with specific arrangements to ensure implementation of the plan. Physicians should routinely raise advance planning with adult patients with decision-making capacity and encourage them to review their values and preferences with their surrogates and family members. This is often best done in the outpatient setting before an acute crisis.”

Yet when Medicare in 2010 offered to include voluntary advance care planning in the new Medicare wellness exam, it unleashed a fury of criticism that if the government reimbursed doctors for discussing advance care planning with their patients, physicians would then pressure patients to give up on treatment and end their lives—the notorious “death panel” lie about Obamacare.  Because of the partisan backlash, Medicare ended up withdrawing the proposal.

That was then, this is now.  Today, the idea that Medicare should reimburse doctors for advance care planning has bipartisan support.  Even before Medicare issued its new proposed rule, U.S Senators Johnny Isakson, R-Ga., and Mark R. Warner, D-Va., had introduced legislation designed “to give people with serious illness the freedom to make more informed choices about their care, and the power to have those choices honored” by “creating a Medicare benefit for patient-centered care planning for people with serious illness.”

Now that members of both political parties agree on the wisdom of empowering patients to take control of their own healthcare, perhaps this will also mark the time when the notorious “death panel” falsehood is put to rest, once and for all.

Today’s question: what do you think of Medicare’s proposal to pay for advance care planning?

Wednesday, July 8, 2015

ACP and the “LGBT Agenda”

When ACP came out with its position paper on access to healthcare for Lesbian, gay, bisexual, and transgender (LGBT) persons, published online by the Annals of Internal Medicine on May 12, we knew that some of our recommendations would be controversial.  Our call for civil marriage rights for same-sex couples, our opposition to conversion,” “reorientation,” or “reparative” therapy for the “treatment” of LGBT persons, our advocacy for health insurance coverage of comprehensive transgender healthcare services, and our view that the definition of “family” should be inclusive of those who maintain an ongoing emotional relationship with a person, regardless of their legal or biological relationship, were among the recommendations that we anticipated would generate objections, including from some segments of the ACP membership.

And, as we expected, we have since heard from a dozen or so ACP members who have taken issue with the paper.  (We have also heard from many members who applauded it).  Some of those who objected said that ACP shouldn’t be involved in “political” issues.  Some said they knew of patients, friends and colleagues who benefited from “reparative” or “conversion” therapies. Some cited their own religious beliefs in explaining why they object to same-sex civil marriage and the College’s support for it.  And although the Supreme Court just a few weeks later validated our view that same-sex couples should have the same civil marriage rights as heterosexual couples, a decision we applauded, the ruling has hardly settled the controversy, with many conservative states now considering laws to exempt people with religious or personal objections from providing services to same sex married couples.

ACP respects the sincerity of those who differ with us on religious or other grounds.  Yet at the same time, we remain firmly committed to our advocacy for policies that the evidence shows are necessary and appropriate for reducing healthcare disparities for LGBT persons, as we have done for other patient populations that have been discriminated against because of race, ethnicity, or gender. Our paper references studies and other  evidence-based sources that support the recommendations made in our paper, including that denial of same-sex marriage rights can result in “ongoing physical and psychological health issues” for LGBT persons, that  same-sex marriage bans (now found to be unconstitutional) result in “increases in general anxiety, mood disorders, and alcohol abuse”, that “the denial of marriage rights to LGBT persons has also been found to reinforce stigmas of the LGBT population that may undermine health and social factors, which can affect young adults,” that  “all major medical and mental health organizations do not consider homosexuality as an illness but as a variation of human sexuality, and they denounce the practice of reparative therapy for treatment of LGBT persons” and that reparative therapies “may actually cause emotional or physical harm to LGBT individuals, particularly adolescents or young persons.”

Several of the ACP members who object to our recommendations said that we were promoting what they called “the LGBT agenda.”  I’ve been thinking a lot about that, because I am not sure what the “LGBT agenda” even means.  But if it means that ACP is advocating for public policies to ensure that lesbian, gay, bisexual and transgender persons have the same civil marriage rights and legal protections as everyone else, that they can visit the hospital and make decisions for an incapacitated spouse, that they are not pressured into “therapies” that are premised on the wholly disproven idea that their sexuality and gender identity is “abnormal” and in need of treatment, that they should not be harassed or discriminated against and denied healthcare services and insurance benefits because of who they are, well then, we are guilty as charged, and proud of it.

Today’s question:  What do you think of the concerns expressed by some ACP members about the College’s recommendations on LGBT access to healthcare, and specifically, the idea that we are promoting an “LGBT agenda”?

Thursday, June 25, 2015

Supreme Court: “Congress passed the ACA to improve health insurance markets, not to destroy them."

This was the key finding  made by the Supreme Court, in its landmark decision this morning upholding  that the ACA requires that premium subsidies apply in all 50 states.  The 6-3 decision, written by Chief Justice Roberts, ensures that the Affordable Care Act is here to stay for the duration of President Obama’s term in office.  Even more importantly, it ties the hands of any future administration from re-interpreting the statute to deny the subsidies in states that have let the federal government run their exchanges.

The Supreme Court could have ruled more narrowly, upholding the subsidies as a reasonable exercise of the IRS’s administrative authority to implement a statute when the wording it unclear.  Had it gone that way, a new President and his or her administration could have reinterpreted the statute so that the subsidies would no longer apply in states with federally-facilitated marketplaces.  Instead, it issued a definite ruling that the law requires that the premium subsidies apply everywhere.

 “This is not a case for the IRS,” wrote Justice Roberts on behalf of the court. “It is instead our task to determine the correct reading of [the statute].”  And the statute, the justices found, “compels the Court to reject petitioners’ interpretation because it would destabilize the individual insurance and likely create the very ‘death spirals’ that Congress designed the Act to avoid.”

The court’s concern about the impact on patients, if it had overturned the subsidies, is evident from this paragraph in the ruling:

“So without the tax credits, the coverage requirement would apply to fewer individuals. And it would be a lot fewer. In 2014, approximately 87 percent of people who bought insurance on a Federal Exchange did so with tax credits, and virtually all of those people would become exempt . . .  If petitioners are right, therefore, only one of the Act’s three major reforms would apply in States with a Federal Exchange.  The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral. One study predicts that premiums would increase by 47 percent and enroll­ment would decrease by 70 percent. E. Saltzman & C. Eibner, The Effect of Eliminating the Affordable CareAct’s Tax Credits in Federally Facilitated Marketplaces (2015). Another study predicts that premiums would increase by 35 percent and enrollment would decrease by 69 percent. L. Blumberg, M. Buettgens, & J. Holahan,The Implications of a Supreme Court Finding for thePlaintiff in King vs. Burwell: 8.2 Million More Uninsured and 35% Higher Premiums (2015). And those effects would not be limited to individuals who purchase insur­ance on the Exchanges. Because the Act requires insurers to treat the entire individual market as a single risk pool . . .premiums outside the Exchange would rise along with those inside the Exchange.  It is implausible that Congress meant the Act to operate in this manner.”

Touche!  This is precisely what ACP argued, in an amicus brief we submitted to the court along with 17 other health advocacy organizations.  Our brief noted that tax credits (premium subsidies) established in the ACA as well as the insurance market reforms have enabled millions of Americans to purchase health insurance. If the Court decides in favor of the plaintiffs, millions will lose their health insurance subsidies. This will likely lead many to drop coverage or elect to go uninsured, driving up health insurance premiums for those that remain covered. If health insurance subsidies for federally-facilitated marketplace (FFM) plans were eliminated, enrollment in ACA-compliant individual market plans would drop by 9.6 million, according to the RAND Corporation. The Urban Institute/Robert Wood Johnson Foundation estimates the number of uninsured would increase by 8.3 million.”

So the Supreme Court ruling is a big win for patients and their physicians, and for ACP advocacy on their behalf.  ACP President Dr. Wayne Riley, in a statement issued this morning, said that “we are thrilled and gratified by the Court’s ruling, which affirms that the citizens of all 50 states will have the opportunity to access either a state or federal exchange to obtain subsidies to purchase health insurance policies which benefits themselves, their families and loved ones.”

The Supreme Court decision doesn’t mean the end of the Obamacare wars, of course.  Congressional Republicans will still try to get changes, although the court’s decision takes away their leverage to try to force President Obama to agree to repeal of major provisions of the law in order to keep the subsidies going.  I now predict that there will be no major legislative changes in the ACA until President Obama leaves office.

The voters could elect a president in 2016 that is committed to changing or repealing Obamacare, but because the Supreme Court took away the next President’s option to reinterpret the statute to discontinue the subsidies, they would need Congress to amend or repeal the law, no easy task.  And by then, millions more Americans will have coverage from the ACA.

“The Patient Protection & Affordable Care Act of 2010 is now more than ever, the law of the land and we urge the Congress to work with this and future administrations to improve it in the years ahead” said Dr. Riley in his statement on the court’s ruling.

Let’s hope that there comes a time when this reality sets in, and the debate shifts to improving the law, not destroying it.

Today’s question: what do you think of the Supreme Court ruling?

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About the Author

Bob Doherty is Senior Vice President, American College of Physicians Government Affairs and Public Policy; Author of the ACP Advocate Blog

Email Bob Doherty: TheACPAdvocateblog@acponline.org.

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