HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Wednesday, July 31, 2013

Explaining the Failure of Advance Care Planning Consultation under ACA

The most recent issue of the Hastings Center Report features an illuminating discussion of the failure to include reimbursements for discussion of end of life care options in the Affordable Care Act.  As is well known, the “Advance Care Planning Consultation” (APCP) proposal met a fiery rhetorical end, consumed by charges of the legitimation of “death panels.”  The Kaiser Family Foundation reported last spring that a significant percentage of the public continue to believe that ACA provides for death panels, and that this contributes to the unpopularity of ACA.  

In “Avoiding a ‘Death Panel’ Redux,” Nicole M. Piemonte and Laura Hermer offer an illuminating explanation for the advance care planning fiasco.  As the APCP provision was introduced, it contained language mandating certain contents for end of life conversations:  "Mandatory content included an explanation of advance care planning, advance care directives, living wills, and durable powers of attorney; an explanation of the role and responsibilities of a health care proxy; provision of a list of national and state-specific resources to assist in advance care planning; an explanation of the continuum of end of life resources available, including palliative and hospice care; and an explanation of orders regarding life-sustaining treatment, including why such orders are beneficial to the individual and the family."  Piemonte and Hermer suggest that this content mandate detracted from the aim of encouraging genuine dialogue between physicians and their patients and instead suggested a problematic checklist approach. An additional problem was the proposal to include adherence to advance care directives as a quality measure.  Taken together, Piemonte and Hermer argue, these aspects of the APCP fed perceptions that the government was prescribing what physicians had to do with respect to end of life decisionmaking--even, perhaps, with respect to cost controls. The form in which APCP was originally proposed thus may have played a role in its demise.

Piemonte and Harmer praise later proposals (none as yet enacted) for education and encouragement of open-ended communication between physicians and patients.  Unfortunately, it is difficult to visualize what how different these proposals might actually be in practice; one, for example, takes content mandate out of the statute but into regulation.  Nonetheless, the article is a useful reminder of the need for attention to good physician-patient relationships as ACA unfolds.  



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