March 2011 Volume 7 Number 7

CMS Rule Reversal: Understanding the Impact on Advance Care Planning

By Danielle Holley, Esq., Albany Medical College, Albany, NY


AuthorOn January 10, 2011, the Centers for Medicare & Medicaid Services (“CMS”) rescinded the inclusion of “voluntary advance care planning” as part of the criteria of the annual wellness visit for which physicians would be reimbursed.1 The final rule was issued on November 29, 2010 in response to commentary on the proposed rule posted in July 2010 that encouraged CMS to include “voluntary advance care planning” as an element of the annual wellness visit for payment under the Medicare program. The voluntary advance care planning aspect of the final CMS rule was rescinded a few days after it became effective on January 1, 2011 in part due to “wide range of views on this subject held by a broad range of stakeholders” including those who disagreed when the idea of voluntary advance care planning was first proposed under the Patient Protection and Affordable Care Act (“PPACA”).2 The proposal to include advance care planning under the PPACA was omitted from further consideration when it met political resistance.3

Legal Framework

It has been noted by the United States Supreme Court in evaluating the myriad of end-of-life cases presented before it that “[t]he choice between life and death is a deeply personal decision of obvious and overwhelming finality.”4 Over the years, the law has firmly established that a competent adult patient has the right to refuse treatment.5 Conversely, a patient has the right to choose from appropriate treatments offered by physicians –“[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.”6 The courts have found that these rights of a competent adult patient to accept or refuse treatment are based on the common law doctrine of informed consent. The doctrine of informed consent stems from the recognition that an unconsented-to touching of a person by another consistutes a battery.7 Each of these holdings is important because it bolsters the significance of advance care planning.

Yet Congress as a whole has not fully recognized the necessity of encouraging and supporting advance care planning with laws and regulations.8 Congress took a small step in passing the Patient Self-Determination Act in 1990, but the notion of advance care planning failed to take hold in the overhaul of the health system with the passage of the Patient Protection and Affordable Care Act.9 Then, there was a retraction of the part including advance care planning in the CMS final rule issued in November 29, 2010, which had finally recognized the need to support physicians in talking to their patients about end-of-life planning during the annual visit for Medicare.10 Opponents of advance care planning may argue that physicians do not need to be reimbursed additionally for talking to their patients about end-of-life planning, but the reality is that these conversations take time and the reimbursement is to compensate physicians for their time.

Understanding The Medical Reality

Decisions by patients or loved ones at the bedside can be overwhelming and exceedingly difficult. For example, for a patient who has just been diagnosed with advanced cancer, treatment options are limited and carry only the possibility of extending her life for months, if she responds to temporizing measures. The patient’s physician should explore the patient’s preferences regarding use of ventilators, resusication, hospital admissions, etc. Exploring these preferences are important because some patients may have had experiences with family or friends in similar situations that shape their view point while others may have particular religious or cultural beliefs that influence their attitudes towards life support or other medical interventions. Some patients may even have no idea what to expect, and their preferences need to be discussed through longer conversations. When these conversations do not occur, the patient or legally authorized representative/family is often asked to make decisions during physical and/or emotional turmoil. With advanced care planning, the physician, patient and family have made the necessary prepartions to carry out a mutually agreed upon plan that is aimed at a patient centered goal. All of this takes significant time and without proper financial reimbursement, office visits with the physician may simply focus on the immediate complaint and not the overall plan of care.

Since the passage of the Patient Self-Determination Act in 199011, the prevalence of advance directives has slowly increased. A January 2011 data brief published by the Centers for Disease Control and Prevention’s National Center for Health Statistics reported that advance directives for long-term care populations were most common in discharged hospice care patients (88 percent had an advance directive), nursing home residents (65 percent had an advance directive), and home healthcare patients (28 percent had an advance directive), but also noted these statistics were different from other studies that did not focus on the long-term care resident population but the community at large which found only 37 percent of older adults in the community had an advance directive.12 Another study published in the Annals of Internal Medicine, however, reported that there are still barriers to the use of advance directives and end-of-life planning.13 Particularly relevant here, however, is that the study found physicians and patients have a difficult time interpreting the meaning of the advance directive.14 Yet, a recent study in the New England Journal of Medicine found that “more than a quarter of elderly adults may need surrogate decision making before death.”15 Most importantly, this study found that patients who had discussed and documented their wishes were more likely to receive care that was in accordance with their wishes.16

 Where to Go from Here?

Whether one wants aggressive care at the end-of-life or wishes to seek more limited care is a very personal decision for each individual. To respect a patient’s autonomy and act beneficiently in making difficult medical decisions is paramount, but there are many legal and social barriers, as noted herein. Advance directives are slowly becoming more utilized, especially in the elderly population, but overall are grossly under-utilized. It is extremely important to have clinicians, trained in the intricacies of patient care, to discuss and explore the wishes of each patient.

To encourage advance care planning and change the perception of its necessity requires support from other institutions and groups, including lawyers and the general public. For instance, when filling out healthcare proxies or other such documents, the lawyer can recommend that the client explore his wishes with his physician. In addition, lawyers can support clients by urging them to fill out advance directives on National Healthcare Decisions Day17 but then encourage the client to discuss their decisions with their primary care physicain. Finally, laws and regualtions, such as the CMS final rule discussed herein, need to support the medical infrastructure by reimbursing physician’s time in discussing these important end-of-life issues with their patients, thereby encouraging advance care planning.

It is also important to address that arguments may be made that a person need not talk to a physician, but this notion is based on the premise that a lay person can understand the intricacies of medical decision-making without guidance by a licensed physician. Moreover, this ignores the importance of a primary care physician who can help the patient understand his or her options and also clarify the patient’s desires so that if and when the patient does lose capacity, the advance directive is clear and useful. It is not enough to merely alert individuals to the fact that there are advance directives available, although this was an important step by the Patient Self-Determination Act; thorough discussions with the patient and families by a licensed physician is fundamental to ensure the desired care is given to the patient when the patient loses capacity. Empirical evidence has clearly shown that the patient’s wishes are more fully respected when a discussion takes place with a licensed provider about the patient’s wishes and allows for thoughtful prepartion for that final chapter of life.18 Reimbursement such as provided by the CMS final rule discussed here is an important aspect of advance care planning and its rescission has a dramatic effect on overall use and effectiveness of advance care planning.

1 Medicare Program; Amendment to Payment Policies Under the Physician Fee Schedule and Other Revisions to Part B for CY 2011, 76 Fed. Reg. 1366 (January 10, 2011) (codified at 42 C.F.R. pt. 410).
2 Id.; The Patient Protection and Affordable Care Act, 42 U.S.C. 300gg §§1001 – 10909 (2010).
3 Robert Pear, U.S. Alters Rule on Paying for End-of-Life Planning, N.Y. Times, Jan. 4, 2011 available at (noting the political resistance that advance care planning sparked when Democrats tried to include it in the PPACA, including “death panel” rhetoric, beliefs and outright opposition to encouraging advance care planning to the extent of killing the bill).
4 Cruzan v. Dir., Missouri Dep’t of Health, 497 U.S. 261 (1990).
5 Cruzan, 497 U.S. 261 (1990); see, In Re Quinlan, 355 A.2d 647 (N.J. 1976); see, Bouvia v. Superior Court, 255 Cal. Rptr. 297 (Cal. Ct. App. 1986).
6 Schloendorff v. Soc’y of New York Hospital, 105 N.E. 92 (1914).
7 Supra, note 4.
8 See, supra, notes 1 and 2.
9 Patient Self Determination Act, 42 U.S.C. §§1395cc(f), 1396a (1990); The Patient Protection and Affordable Care Act, 42 U.S.C. 300gg §§1001 – 10909 (2010).
10 See, supra, note 1.
11 Patient Self Determination Act, 42 U.S.C. §§1395cc(f), 1396a (1990) (establishing an obligation of any health care institution that receives Medicare or Medicaid funds to inform patients of their rights regarding decisions for their own medical care, the availability of advance directives, and any state laws that affect medical decision-making.)
12 Adrienne Jones et al., Use of Advance Directives in Long-term Care Populations, 54 NCHS Data Brief 1 (2011), available at
13 Lesley S. Castillo et al., Lost in Translation: The Unintended Consequences of Advance Directive Law on Clinical Care, 154 Annals Internal Med. 2: 121 – 128 (2011). (noting that there are “5 overarching legal and content-related barriers [to advance directives generally]: poor readability; health care agent restrictions; execution requirements (steps needed to make forms legally valid); and religious, cultural, and social inadequacies.” (Id. at 122); and finding that “[w]ithout a health care agent, the absence of an advance directive may result in undertreatment or overtreatment, yet advance directives are not completed, especially among minority and disenfranchised populations.” ( Id. at 121).
14 Id. at 122.
15 Maria J. Silveira, M.D., M.P.H., Scott Y.H. Kim, M.D., Ph.D, & Kenneth M. Langa, M.D., Ph.D., Advance Directives and Outcomes of Surrogate Decision Making before Death, 362 New Eng. J. Med. 13: 1211, 1216-1217 (2010).
16 Id. At 1217.
17 National Healthcare Decisions Day is a grass-roots initiative to educate individuals about the importance of advance care planning and provide the opportunity and resources to complete advance directives; see, National Health Care Decisions Day, (last visited Mar. 3, 2011).
18 See, supra, note 12, 13 and 15.

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