'Death panels' controversy: Is Obama avoiding Congress?

The Obama administration is set to expand options for 'end of life' counseling for Medicare recipients. The White House says it's practical. Sarah Palin says it's akin to 'death panels.'

In a move that could resuscitate the partisan battle over what Sarah Palin dubbed "death panels," the Obama administration is set to implement a controversial federal health-care provision by executive authority.

The new rule would pay doctors to consult with Medicare patients who want voluntary counseling about health-care options in the case of terminal illness.

The Obama administration casts the change as minor, saying that these are common-sense discussions that doctors are already having with patients – and doctors should be reimbursed for them. Critics like Ms. Palin suggest that it is a step toward limiting care for those with terminal illnesses, which can be enormously expensive.

The shape of the debate in Washington is a hint of things to come during the next two years. With Republicans gaining new clout on Capitol Hill after the 2010 elections, President Obama could seek to bypass the Congress by executive authority. Other flash points concern new rules for greenhouse-gas emissions, mortgages, education, and credit cards.

“You’ll see a lot of game playing between the House and White House in the new Congress,” says Larry Sabato, a political scientist at the University of Virginia. “The Republican House will try to squeeze and restrict through the law, and Obama will try to expand and augment through rulemaking.”

On this issue, however, Mr. Sabato sees potential political peril for Mr. Obama. “It’s an issue made-to-order for the Republican House in trying to counter 'ObamaCare,' and for Republican presidential candidates who will cite this as the first implementation outrage of many to come in health-care reform,” he says.

The power of Palin

A similar provision was dropped from the health insurance reform package in 2009 after Palin's "death panels" comment stoked a public backlash. But administration officials say the change is "a straightforward extension of policies adopted by the Bush administration."

They note that a voluntary, one-time interview for those eligible for Medicare for the first time was adopted under President George W. Bush in 2003. The scope of that interview was expanded in 2008 – also under Bush – to allow for a voluntary discussion on advanced care.

In 2010, Obama's health-care law added annual wellness visits to the range of Medicare benefits. Now, the new provision would include the “voluntary advance care planning” as a part of those annual visits.

The Obama administration has the power to make the change because DHHS is tasked with writing the precise rules by which the broad health-care law will be carried out. DHHS decided to include this new provision as one of the rules of the health-care reform law.

As a rationale for this change, the rule cites medical research asserting that advance care planning improves end-of-life health care for patients, reduces stress and depression for surviving relatives, and finds no evidence that “advance directive discussions” lead to harm.

“Patients and their physicians can have a voluntary, confidential discussion [on advance care] or choose not to," says Richard Sorian, a spokesman for DHHS. "When opponents are able to send broadsides that exaggerate, it confuses people. Our job is to help eliminate the confusion.”

Does the rule go too far?

But critics charge that the new regulations are an end run around the Congress, putting into rules an approach that was rejected by lawmakers.

“We’re very concerned that this new regulation is importing something into the law that the Congress clearly did not include,” says David Christensen, senior director of congressional affairs for the Family Research Council, a faith-based advocacy group. “Congress initially looked at this and decided to not include it as part of the new health-care law."

“We’re concerned this could be misused, especially in a state like Oregon that sees mercy killing as a legitimate medical service,” he adds.

Conservative groups also worry that end-of-life discussion in the context of the new law could lead to deliberately rationed health care services.

Other faith-based groups question whether these end-of-life discussions are, in fact voluntary. “Americans weary of 'voluntary' TSA pat-downs and full-body scans will be delighted to learn that 'voluntary' end-of-life consultations are in their future as well,” said Elizabeth Wickham, executive director of LifeTree, a pro-life religious group, in a blog on the new regulations on the LifeTree website.

With Republicans committed to defund, repeal, and replace Obama’s signature health-care reform in the new Congress, the battle is just beginning.