Likely Republican presidential candidate Jeb Bush wants to require everyone to fill out an advance directive governing their end-of-life care before they can receive Medicare benefits. His proposal is both ironic and politically audacious.
It's notable coming from the former Florida governor who in the mid-2000s battled to keep Terri Schiavo, a brain-damaged young woman, alive on a feeding tube despite multiple courts' determination that it wasn't her wish to be kept alive in that state through artificial support. After losing the years-long legal battle,then-Gov. Bush reportedly tried to flout a judge's order to remove her feeding tube by ordering state police in 2005 to seize Schiavo from a hospice and have the tube reinserted. Common sense apparently prevailed and that police seizure never happened.
Bush's comments also represent a remarkable reversal from previous GOP rhetoric calling a proposed policy to encourage physicians to help patients fill out advance directives “death panels” and rationing. Those incendiary charges were aimed by leading Republicans in 2009 at a provision of the healthcare reform legislation that would have directed Medicare to pay doctors for providing voluntary counseling to patients on end-of-life planning. The provision, spearheaded by a Republican senator, was pulled from the bill following a conservative firestorm.
But last Friday at a political event in New Hampshire, Bush went considerably further than the healthcare bill in proposing to make it mandatory for people to fill out an advance directive if they want to receive Medicare. Defending his widely criticized actions as governor in the Schiavo case, Bush said: “I think if we're going to mandate anything from government, it might be that if you're going to take Medicare that you also sign up for an advanced directive where you talk about this before you're so disabled that then there's fights amongst the family.”
His proposal drew a mixed response from experts.
“I like it, I think it's a really positive direction forward that people would make their choices known,” said Dr. Atul Gawande, a surgeon and professor at the Harvard School of Public Health who recently published “Being Mortal,” an acclaimed book on end-of-life decisionmaking. He likened Bush's idea to hospitals requiring patients at the time of admission to identify their healthcare proxy for decisionmaking.
“We've come a long way from the death panel argument,” said Gawande, who worked on healthcare reform in the Clinton administration. “It's a sign we've finally broken through and that Republicans are comfortable just as much as Democrats with patients making their wishes known to providers.”
Marilyn Moon, a Medicare scholar at the American Institutes for Research, is just as much an advocate of advance directives as Gawande. But she does not like the mandatory part. “I am loathe to make this a requirement,” said Moon, a former public trustee for the Medicare and Social Security trust funds who recently went through a personal experience as a caregiver dealing with these issues.
“Better to spend some resources and help people think through these issues rather than making it some requirement,” she added. “It seems like it is pushing people who may be very reluctant to get into this. Having just spent time on caregiving these past six months, I am exquisitely aware of how subtle and sensitive some of the issues may be. Please let's get everyone to do advanced directives, but let's keep government and regulators out of that process.”
Like Moon, Compassion & Choices, a not-for-profit group that counsels people on end-of-life choices, called Bush's proposal “a step in the right direction” but does not support making the writing of an advance directive mandatory to qualify for Medicare. It recommended providing incentives to Medicare beneficiaries to complete directives and discuss their end-of-life wishes with healthcare providers, while at the same time denying payment to healthcare providers who fail to honor patients' end-of-life wishes.
Gawande acknowledged that there are “lots of nuances that would have to be worked out” in turning Bush's proposal into black-letter policy. “I have no idea what (Bush) is saying exactly,” Gawande acknowledged. “Exactly how you articulate what your wishes are, there are a lot of different ways we determine what an advance directive is. It can be as narrow as who makes decisions when you can't. It can be as robust as determining what matters most to you. But doing that as part of signing up for Medicare is a good thing.”
We'll see if most Americans agree with that. Meanwhile, the CMS and members of Congress of both parties are considering the less coercive path of having Medicare pay providers to counsel seniors on advance directives—or else pay seniors directly to draft directives. Sens. Mark Warner (D-Va.) and Johnny Isakson (R-Ga.) have introduced a new bill to have Medicare cover professional counseling about long-term-care planning.
So far, other Republican politicians and conservative pundits—who generally abhor heavy-handed government regulation and often warn against government healthcare rationing—have not weighed in on Bush's recommendation that the government force seniors to do something so personal at risk of losing their Medicare benefits. That may change.
But as commentator Steve Benen wrote on msnbc.com: “Can we at least pause to appreciate the fact that Jeb Bush's position represents 'big government' more than (President) Obama's policy ever did?”