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A Project of The Annenberg Public Policy Center

‘SpotCheck.org’? We Disagree.

In an Aug. 20 appearance on “The Daily Show with Jon Stewart,” former New York Lt. Gov. (and health care legislation critic) Betsy McCaughey referred to our organization as “spot-check dot org,” claiming we failed to adequately read the House health care bill. McCaughey is the source of the false claim that the bill calls for mandatory counseling for seniors “to do what’s in society’s best interest … and cut your life short.”

As we said in our article “False Euthanasia Claims,” McCaughey misinterprets the bill. It calls for Medicare to pay for voluntary counseling sessions between seniors and their doctors on what care they want to receive at the end of their lives. Such sessions focus on living wills or designating a health care proxy, among other considerations. On “The Daily Show,” McCaughey continued to assert that such counseling sessions were mandatory.

She claimed that we failed to note a section of the bill that she says sets up a “penalty” for doctors who fail to give patients such advice and that “if there’s a penalty, it is mandatory.” But she’s actually pointing to a section that would make “quality measures of end of life care” one of more than 150 quality-of-care factors to be considered when awarding physicians a 2 percent bonus under Medicare. And physicians only have to report on a small subset of the measures in order to receive the bonus. That’s a far cry from creating a specific penalty for failure to counsel patients, much less making consultations “mandatory,” as McCaughey originally claimed.

Furthermore, McCaughey went on to claim that doctors would be penalized “if the patient or their family changes their mind about their living will.” But the bill says nothing of the sort. As one expert tells us, advance directives can be changed at any point.

Here’s the relevant portion of the exchange:

Jon Stewart: You have said that the conversation is mandatory.
Betsy McCaughey: It is
JS: Now, the bill, or at least the way I read it, and again . . .
BM: Did you only read section 1233?
JS: (Pause, laughter) I may have only read . . .
BM: That’s the problem, you know. FactCheck.org. Everybody reads FactCheck.org. They’re really spot-check dot org. They just read 1233.
JS: Give me the spot that says it’s mandatory …
BM: It’s on page 432
JS: I’d be happy to hear about . . .
BM: What it says is, it includes, it doesn’t use the word ‘mandatory.’
JS: Oh, it doesn’t use the word ‘mandatory’?
BM: Let me explain why. Legislation almost never uses the word mandatory, but if there’s a penalty, it is mandatory. And the penalty here …
JS: What is the penalty? Now my reading of it was, what the bill was saying is, if you have a consultation, every five years, one, we will pay for it.
BM: Right. And that would be a benefit.
JS: Seems like a benefit
BM: That’s right. But, it is not a benefit because here there is a penalty …
And guess what, the first time I read it I wrote, ‘disgusting.’ See? ‘Disgusting.’
JS: Yeah …
BM: The penalty here is against your doctor. It says right here that doctors, their quality rating will be determined in part by the percentage of their patients who have living wills or advance directives, and the percent…
JS: I did not see that as saying that.
BM: Have you read page?
JS: I saw it as saying that if you report whether or not you have the conversation …
BM: No no no. Because your Medicare reimbursement depends on your quality rating.
JS: Right. The quality rating is . .
BM: And so you’re going to be penalized
JS: But the quality rating, as the way it stands now, which is the one that Bush passed it, the PQRI. Says that if you have the conversation or not, it doesn’t matter, as long as you report it. And that’s just a small measure of your quality rating.
BM: No. It says the percentage of … that your quality rating would depend on the percentage of your patients that have living wills or advanced directives and … the percentage who adhere to them. …

McCaughey refers to a section on expanding the “physician quality reporting initiative” to include data on advance care planning. The section, which Stewart later read in the segment, says:

H.R. 3200, page 431-432: (1) PHYSICIAN’S QUALITY REPORTING INITIATIVE.—Section 1848(k)(2) of the Social Security Act 19 (42 U.S.C. 1395w–4(k)(2)) is amended by adding at the end the following new paragraphs: (3) PHYSICIAN’S QUALITY REPORTING INITIATIVE.— (A) IN GENERAL.—For purposes of reporting data on quality measures for covered professional services furnished during 2011 and any subsequent year, to the extent that measures are available, the Secretary shall include quality measures on end of life care and advanced care planning that have been adopted or endorsed by a consensus-based organization, if appropriate. Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment.

The physician quality reporting initiative was, as Stewart said, passed under the Bush administration. Part of the 2006 Tax Relief and Health Care Act, it called for a system that would include “an incentive payment for eligible professionals (EPs) who satisfactorily report data on quality measures for covered services furnished to Medicare beneficiaries,” according to the Centers for Medicare and Medicaid Services. And in 2008, the PQRI was made permanent. It’s a voluntary program but it does give incentive payments (an extra 2 percent in 2009) to physicians who report on various quality measures. It includes 153 quality measures for this year and seven “measures groups.”

Not all of the measures apply to all physicians, and doctors may not need to report on all of the measures that do. A CMS spokesman told us that medical professionals decide whether they want to report individual measures or measures groups. To qualify for the incentive payment, a professional must report on “at least 3 measures” or one of the seven groups. Also, CMS told us that the incentive payments are based on whether physicians report data, period – not on what type of data they report.

This isn’t a graded test on whether the doctor has done well or poorly. Therefore, McCaughey’s claim that “your quality rating would depend on the percentage of your patients that have living wills” is false, based on how the PQRI works.

Also, this initiative already asks about patients’ advance care plans and has done so since its inception in 2007. Measure number 47 says:

PQRI measures, 47. Advance Care Plan: Percentage of patients aged 65 years and older who have an advance care plan or surrogate decision maker documented in the medical record or documentation in the medical record that an advance care plan was discussed but the patient did not wish or was not able to name a surrogate decision maker or provide an advance care plan

In a Q&A about measure 47, CMS clarifies what it’s trying to measure. “PQRI measure #47 seeks to identify whether or not a physician’s Medicare patients have an advance care plan in the medical record or whether the patient has designated a surrogate decision maker. This measure may also be satisfied by indicating whether a discussion with the patient about advanced-care planning took place with the physician,” CMS says. Worth noting is that measure #47 was created by a board of the American Medical Association. “The American Medical Association’s Physician Consortium for Performance Improvement (PCPI), a national cross-specialty organization charged with developing clinical performance measures for physicians and other health care professionals, created this measure based on established clinical recommendations,” according to CMS.

As for what additional PQRI measures the House bill calls for, that’s a bit ambiguous – and it would involve input from an AMA-like “consensus-based organization.”

We spoke with Gail Wilensky, former administrator of what is now CMS and a deputy assistant to President George H.W. Bush. Wilensky, a senior fellow with the health education foundation Project HOPE, told us that the language “doesn’t necessarily suggest a more proactive response … but it’s not clear what it would take to indicate you have fulfilled all of the activities that you need to get full credit” under the PQRI. It may be that if doctors ask patients whether they have an advance directive, doctors have done all they need to do, she says. Or it could be that if doctors say yes, “they have a follow on question that asks whether or not … the physician knows about [the directive] or other relevant people know about it.”

Under current regulations, hospitals and nursing homes are supposed to ask any Medicare beneficiary when admitted whether the person has an advance directive. If so, that is supposed to be noted in the beneficiary’s record. Wilensky says that’s been the case since she was administrator of Medicare in the early ’90s.

McCaughey went further with her loose interpretation of the line in the bill that says: “Such measures shall measure both the creation of and adherence to orders for life-sustaining treatment.” She told Stewart that the bill called for “penaliz[ing] [doctors] if the patient or their family changes their mind about their living will in a moment of crisis.”

When we asked Wilensky about that interpretation of the bill, she said: “That’s ridiculous.”

“The reason that this is raised is that it has been noted that institutions and doctors sometimes ignore patient directives,” Wilensky says. “As a patient, that’s worrisome. As a patient, you think you’re making your wishes known, but sometimes they’re ignored … for a whole variety of reasons.”

“An advance directive is a patient empowerment, as far as I’m concerned,” she says. It allows patients when not under duress to have a discussion about what their wishes are if they’re not able to make their own decisions. And a directive is only relevant if the patient is unconscious or unable to discuss his or her wishes. “Advance directives can be overridden at any point,” Wilensky adds, just like one can change a will. “The notion that you can’t change your mind is ridiculous.”

— Lori Robertson