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August 10, 2009


ISTM that Brendan in effect uses the ambiguity in the bill in favor of Obama, because he resolves uncertainties in Obama's favor.

An example is Betsy McCaughey's statement, The health care reform bill "would make it mandatory — absolutely require — that every five years people in Medicare have a required counseling session that will tell them how to end their life sooner." An anonymous person writing for the St. Petersburg Times says that's false. Brendan endorses that view. OTOH blogger Sandy Svarc says it's true, or at least might become true in practice. Unlike the St. Petersburg Times, Svarc writes under her own name and lays out her reasoning in great detail.

Svarc offers detailed evidence that the counseling sessions are likely to be mandatory:

Claims that it is not mandatory are most obviously not supported by the bill’s language. It directs healthcare providers that they “shall” ensure every Medicare patient receives such counseling every five years. “Shall” means must. Those directives are to become part of the patient’s medical records. The most telling evidence that it will be mandatory is the Expansion of Physician Quality Reporting Initiative provision that makes advance care planning a reportable Pay for Performance measure for every professional providing services to Medicare patients. “Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment.” Worse, those measures reportable to the government will be defined and determined by the Secretary of Health and Human Services. Electronic medical records will enable governmental oversight of physicians’ and patients’ adherence and identify those who are noncompliant.

Now I admit that there is other wording in the law that makes the sessions sound optional. This is an example of a vagueness or ambiguity in the bill. In addition to the complex wording, much will depend on administrative decisions that haven't been made yet. The bill seems to be filled with uncertainties. E.g., I've seen people insist that abortions are covered and others insist that it isn't covered. If the bill is uncertain on such a straightforward point, imagine how hard it is to know how it will apply to more complex aspects of health care.

Just wondering, what if the counseling sessions WERE mandatory, for anyone who used the plan? End of life planning is a pretty smart thing to do, isn't it?

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