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Mandatory Death Counseling--exposed!

Conservatives keep insisting that Obama and his allies want to force end-of-life planning on the elderly, so that it'll be easier to pull the plug on grandma when she gets sick. And the charge keeps sticking, even though the measure that conservatives are citing--section 1233 of the House health reform bill--does nothing of the sort.

Well, it turns out there's one element of truth to the conservative charge after all. Somebody in Congress really did propose mandatory end-of-life counseling for Medicare beneficiaries. But it wasn't Obama or one of his allies. It was Johnny Isakson.

Isakson is the Georgia Republican senator that Ezra Klein smartly interviewed late last week. A longtime advocate for end-of-life planning, Isakson is also a member of the Senate Health, Education, Labor, and Pensions (HELP) Committee, which passed its own version of legislation last month.

During the interview with Ezra, Isakson acknowledged introducing an amendment like the one in the House bill--and justified it in clear, compelling terms. As for all the recent criticisms, he called them "nuts." (If you haven't read that terrific interview yet, you should.)

But it turns out that Izakson's original HELP amendment would have gone a bit farther than the now-infamous House measure does. Under the House version, Medicare would have to cover the consultation fees of physicians who counsel their patients about end-of-life issues. But the sessions would be purely voluntarily--i.e.,at the patient's discretion. The basic idea is that if a Medicare recipient wants to fill out a living will--and wants a doctor's advice on how to do it--Medicare would pay the doctor for his or her time.

The amendment Isakson introduced to HELP was more aggressive. Under its terms, filling out an advanced directive would have been mandatory for all senior citizens. So if you turned 65 and failed (or refused) to file a living will, you simply wouldn't be able to use Medicare.

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The actual text--which you can see in the PDF immediately above--states the amendment's purpose is "to require that beneficiaires provide proof of having in effect a valid and legal advance directive prior to enrollment in the Medicare program." It then spells that out in legalese: individual shall not be entitled to, or enrolled for, benefits under part A or enrolled under part B unless the individual has, in accordance with procedures established by the Secretary, provided proof to the Secretary that the individual has in effect an advance directive recognized under State law...the term 'advcance directive' means a living will, medical directive, health care power of attorney, advance directive, or other written statement by a competent individual that is recognized under State law and indicates the individual's wishes regarding medical treatment in the event of future incompetence. Such term includes an advance health care directive and a health care directive recognized under State law....

According to several accounts, one senator spoke out against the idea forcefully: Maryland's Barbara Mikulski, who happens to be a Democrat. Mikulski made clear she wasn't against counseling or advanced directives; in fact, she noted, she had such a document for herself. But she didn't like the idea of making it mandatory. That discussion led to the amendment that did finally pass, one that--like the House version--simply calls for reimbursing doctors who offer end-of-life counsel when their patients seek it.

I say all of this with some trepidation; Joe Klein's moving essay on end-of-life issues is a reminder of how sensitive this issue is. I don't think there is anything ghoulish or cruel about encouraging people to think about how they want to be treated if they should become incapacitated. In fact, I think it's a good thing. In the end, it's about recognizing and respecting people's choices--not restricting them.

But I also think it's important to be clear about what Obama and the Democrats stand for. And it's very clearly not mandatory end-of-life counseling.

By the way, HELP passed the final version of the amendment--the one that pays for voluntary counseling--by unanimous consent. In other words, every Republican present supported it.