Friday, July 10, 2015

Medicare and End of Life Planning – What Actually Happened?

In early July, within a couple days of a very dry and deeply buried CMS policy change, the media produced hundreds of stories about Medicare newly offering an “Advance Planning Option” – which means "paying for doctors to talk to patients about end-of-life decisions."

What happened?  What does it mean?  See a full history and discussion after the break.


Some of us may remember the brouhaha in 2009/2010 when Congress included a brief authorization of end-of-life counseling within the thousand page Affordable Care Act.   The remark was struck from the final bill. 

On July 8, 2015, Medicare produced one of its several multi-hundred-page bureaucratic policy updates.  Buried deep inside, a paragraph of comment offered to switch a one-year-old AMA CPT code for advance care planning from “Unpayable” to “Payable” status.   This led to a relative blaze of media attention literally overnight.  Here is the story of what happened.



In the nation:  End of life care, advance directives, and excessive end of life interventions have been discussed for many years.  For a 2006 USAToday story, see here.  In October 2014, Atul Gawande published "Being Mortal" a widely publicized book on end-of-life decisions (Amazon here, review here).  Debates about physician-assisted suicide, which varies by state, are perennial.

In Washington:  In 2009, the mammoth Affordable Care Act contained a brief statement about advance care planning, which (limited as it was) became too hot for Congress to pass.  The phrase was struck from the final bill.

Later, in November 2010, Medicare proposed in a regulation that among the length and variety of activities during a Medicare Annual Wellness Visit, one discussion topic could be “voluntary advance care planning” – but this too was cut back and struck from the final regulation.
In fact, what was recreated in November 2010 was withdrawn on January 10, 2011, in a special policy announcement (full text here, 76 Fed Reg 1366.)  Specifically, the wording was deleted because it appeared only in a Final Rule (in November), and therefore opposing stakeholders had not seen it in a Proposed Rule (in July) and had no chance to comment against it.  (For an April 2011 comment, see USAToday, here.)

As often happens, the legislative idea struck from the ACA continued to percolate up in different settings.  For example, in August 2013, Sen. Mark Warner of Pennsylvania offered a bill on called the Care Planning Act of 2013 (S. 1439, here), which did not leave committee.  See also Wall Street Journal, August 1, 2013, here.


In August 2014, the New York Times published an article stating that a new AMA CPT code for advanced care planning was under consideration at the Medicare agency (here).

In September 2014, the Institute of Medicine published “Dying in America: Improving Quality and Honoring Individual Preferences near the End of Life” (herehere).

In March 2015, the well-respected journal Health Affairs published a blog article on advance care planning and CMS payments (here).  A report on an Institute of Medicine forum appeared at United Healthcare (here) and Medscape's The Gupta Guide (here).  Also in March 2015, the organization "Life Matters Media" ran an article, also in Reuters, on the need to reimburse doctors for end of life care (here at Life Matters, here at Reuters.)

Just three days before July 8, 2015, Forbes ran an article on a revival of Mark Warner's bill (Care Planning Act of 2015), here, as S. 1439, here.

Just two days before July 8, 2015, Joanne Kenen of Politico published an article, “Medicare expected to pay for end of life talks”  (here).  Her source was unstated; she remarked “Advocates say they expect it to be included.”

While there is generally an iron-tight embargo on the release of federal rulemaking from Medicare, after the 4 pm July 8 government document release, the New York Times ran a story that evening online (and in the next morning's paper edition) including extensive quotes from stakeholders.


All physician services are described by some 10,000 AMA CPT codes, including office visits, surgeries, and imaging scans.  Every year the AMA CPT creates 100 or more new CPT codes and revises others.   In 2014, the AMA CPT created two codes that describe end of life care under the terminology “advance care planning.”   The codes were published in October 2014, becoming available for Medicare and other insurers on January 1, 2015.

The AMA CPT codes are 99497 and 99498, which describe advance care planning “including the explanation and discussion of advance directives…by the physician or other qualified health professional” in increments of an initial 30 minutes (99497) and if needed, one or more additional 30 minutes (99498).

The AMA relative values committee valued these codes as 1.5 and 1.4 relative value units of physician effort.  When CMS covers a service, it pays about $34 per RVU (more in many urban areas).  Although there are some complexities, an RVU represents about 20 minutes of physician time, or CMS pays physicians at a rate of 3 RVUs per hour.  RVUs are used because they are tokens that can represent various amounts of physician time, supplies, overheard, capital equipment, or other pricing components.  And while CMS pays $34 per RVU, private payers might convert RVUs to dollars at a different rate.

The AMA code, which was created months before any Medicare decision, was discussed in USAToday in June, 2014 (here) and in the New York Times in August, 2014 (here).


CMS first commented on the new AMA CPT codes, which would become effective on January 1, 2015, in policymarking of November 13, 2014.  The text of CMS’s position is here (79 Fed Reg 67671-2):

CMS Final Rule:
Subsection: Advance Care Planning (CPT codes 99497 and 99498)
For CY 2015, the CPT Editorial Panel created two new codes describing advance care planning services:
CPT code 99497 (Advance care planning including the explanation and discussion of advance directives such as standard forms (with completion of such forms, when performed), by the physician or other qualified health professional; first 30 minutes, face-to-face with the patient, family member(s) and/or surrogate); and an add-CPT code 99498 (Advance care planning including the explanation and discussion of advance directives such as standard forms (with completion of such forms, when performed), by the physician or other qualified health professional; each additional 30 minutes (List separately in addition to code for primary procedure)).

For CY 2015, we are assigning a PFS status indicator of ‘‘I’’ (Not valid for Medicare purposes. Medicare uses another code for the reporting and payment of these services) to CPT codes 99497 and 99498 for CY 2015. However, we will consider whether to pay for CPT codes 99497 and 99498 after we have had the opportunity to go through notice and comment rulemaking.
Having lived through the 2010 creation and 2011 retraction of an advanced care policy (see above), CMS's dry text belies the fact they knew a lot of stakeholders were lining up over this issue.  If CMS stated it was paying for the codes, it could awake a tempest.  However, it would be a tempest in a teapot, because physicians could simple bill commonplace “evaluation and management” codes or “office visit” codes for 30 or 45 minutes when the care management including advance directives was being discussed.  Thus, we find an "out" in CMS’s policy statement, which is standard coding-world boilerplate, “Medicare uses another code for the reporting and payment of these services.”

The "Supportive Care Coalition" (here) wrote CMS on December 19, 2014, urging CMS to pay for the AMA CPT codes (here).  The organization wrote, in part:
"...CHA and SCC urge CMS to pursue rulemaking to create specific CPT codes for advance care planning. The Catholic health ministry is a strong supporter of advance care planning and many of our members are leaders in developing robust advance care planning programs in their facilities. Advance care planning with a health care provider allows a patient to understand their medical situation and to assess future treatment options in light of their own values, religious beliefs, family needs and desired health outcomes....Medicare beneficiaries deserve to know that their doctor can and will take the time to help them plan the future course of their care in a manner that reflects their values and needs." 


Advance care planning was already recognized by “quality of care” codes that had been created by the National Care Quality Alliance (NCWA) and AMA and recognized by CMS.  This is found right in the same November 2014 rulemaking for CY2015.  Thus, quality measure 0326/047 in the domain of communication and care coordination was already recognized as “Care Plan: Percentage of patients aged 65 and older who have an advance care plan documented in the medical record, or documentation that an advance care plan was discussed but the patient did not wish or was not able to name a surrogate.”  (79 Fed Reg 67802).  This quality-of-care metric is recognized by CMS for chronic kidney disease and chronic pulmonary disease patients in 1/1/2015 and later (79 FR 67884 and 67885). 


In July 2015, CMS proposes in rather dry policymaking to convert the AMA CPT codes from “not payable” to “payable” status.  On page 246 of the CY2016 policies, which span 815 pages, CMS states the following:

Advance Care Planning Services
      For CY 2015, the CPT Editorial Panel created two new codes describing advance care planning (ACP) services:  CPT code 99497 (Advance care planning including the explanation and discussion of advance directives such as standard forms (with completion of such forms, when performed), by the physician or other qualified health professional; first 30 minutes, face-to-face with the patient, family member(s) and/or surrogate); and an add-on CPT code 99498 (Advance care planning including the explanation and discussion of advance directives such as standard forms (with completion of such forms, when performed), by the physician or other qualified health professional; each additional 30 minutes (List separately in addition to code for primary procedure)).

      In the CY 2015 PFS final rule with comment period (79 FR 67670-71), we assigned a PFS interim final status indicator of ‘‘I’’ (Not valid for Medicare purposes. Medicare uses another code for the reporting and payment of these services) to CPT codes 99497 and 99498 for CY 2015.
      We said that we would consider whether to pay for CPT codes 99497 and 99498 after we had the opportunity to go through notice and comment rulemaking.
      We received many public comments to the final rule recommending that we recognize these two CPT codes and make separate payment for ACP services, in view of the time required to furnish the services and their importance for the quality of care and treatment of the patient.
      For CY 2016, we are proposing to assign CPT codes 99497 and 99498 PFS status indicator “A,” which is defined as:  “Active code.  These codes are separately payable under the PFS.  There will be RVUs for codes with this status.”  The presence of an “A” indicator does not mean that Medicare has made a national coverage determination regarding the service.  Contractors remain responsible for local coverage decisions in the absence of a national Medicare policy.  We are proposing to adopt the RUC-recommended values (work RVUs, time, and direct PE inputs) for CPT codes 99497 and 99498 beginning in CY 2016 and will consider all public comments that we receive on this proposal.
      Physicians’ services are covered and paid by Medicare in accordance with section 1862(a)(1)(A) of the Act.  Therefore, CPT code 99497 (and CPT code 99498 when applicable) should be reported when the described service is reasonable and necessary for the diagnosis or treatment of illness or injury.  For example, this could occur in conjunction with the management or treatment of a patient’s current condition, such as a 68 year old male with heart failure and diabetes on multiple medications seen by his physician for the evaluation and management of these two diseases, including adjusting medications as appropriate.  In addition to discussing the patient’s short-term treatment options, the patient expresses interest in discussing long-term treatment options and planning, such as the possibility of a heart transplant if his congestive heart failure worsens and advance care planning including the patient’s desire for care and treatment if he suffers a health event that adversely affects his decision-making capacity.
       In this case the physician would report a standard E/M code for the E/M service and one or both of the ACP codes depending upon the duration of the ACP service.  However, the ACP service as described in this example would not necessarily have to occur on the same day as the E/M service.
      We seek comment on this proposal, including whether payment is needed and what type of incentives this proposal creates.  In addition, we seek comment on whether payment for advance care planning is appropriate in other circumstances such as an optional element, at the beneficiary’s discretion, of the annual wellness visit (AWV) under section 1861(hhh)(2)(G) of the Act.  [CMS accepts comment til 9/8/2015].


Medicare issued a press release which included a few sentences mentioned the Advance Care Planning payment update (here).  The subsection on Advance Care Planning states:

     The proposed rule also seeks comment on a proposal that would better enable seniors and other Medicare beneficiaries to make important decisions that give them control over the type of care they receive and when they receive it.
     Consistent with recommendations from the American Medical Association (AMA) and a wide array of stakeholders, CMS proposes to establish separate payment and a payment rate for two advance care planning services provided to Medicare beneficiaries by physicians and other practitioners. The Medicare statute currently provides coverage for advance care planning under the “Welcome to Medicare” visit available to all Medicare beneficiaries, but they may not need these services when they first enroll. Establishing separate payment for advance care planning codes provides beneficiaries and practitioners greater opportunity and flexibility to utilize these planning sessions at the most appropriate time for patients and their families.
      The AMA Current Procedural Terminology (CPT) Editorial Panel and the AMA Relative Value Update Committee (RUC) recommended new CPT codes and associated payment amounts for calendar year 2015. CMS did not make the new codes payable for 2015 in order to allow the public full opportunity to comment on whether Medicare should pay separately for these services and, if so, how much beginning January 1, 2016.
 For Medicare beneficiaries who choose to pursue it, advance care planning is a service that includes early conversations between patients and their practitioners, both before an illness progresses and during the course of treatment, to decide on the type of care that is right for them.
      CMS is accepting public comments on this proposal, as part of the CY 2016 PFS proposed rule, until September 8, 2015.


Same-Day Reporting: Note that the CMS rule was not released until 4 pm eastern.
July 8, 2015
"Medicare plans to pay doctors for counseling on end of life."
New York Times.  By Pam Belluck.  Here.
Chief Medical Officer Patrick Conway quoted ("We think today's proposal supports individuals and families who wish to have the opportunity to discuss advance care planning with their physician and care team....")  NYT adds, "The plan would allow qualified professionals like nurse practitioners and physician be reimbursed for face to face meetings with the patient and any relatives or caregivers the patient wants to include.  Dr Conway said the proposal did not limit the number of conversations reimbursed."
July 8, 2015
Proposed rule would reimburse physicians for advance care planning conversations.
National Hospice and Palliative Care Organization.  HereHere.

July 8, 2015
The government wants to pay doctors to talk about death.  Wait, we’ve been here before.
Slate.  By Amy X. Wang.  Here.

July 8, 2015
A wise step: Medicare to pay doctors for end-of-life counseling.
Brookings Institute.  By Stuart M. Butler.  Here.

July 9, 2015
NAELA applauds move to pay doctors for advance care planning.
National Academy of Elder Law Attorneys.  Here.

July 9, 2015
Ignoring nonsense, Medicare to cover Advance Care Planning
MSNBC.  By Steve Benen.  Here.

July 9, 2015
10 FAQs: Medicare's Role in End-of-Life Care.
Kaiser Family Foundation.  Here.

July 9, 2015
CMS wants to pay doctors to talk about end-of-life care planning.
Advisory Board [national hospital consultancy.]  Here.  See also here.

July 10, 2015
Advance Care Planning gets a boost.
AARP.  By David Certner.  Here.  See also AARP's public policy position on advance directives, here.

July 10, 2015
Medicare's advance care reimbursements a first step.  [Interview with Sean Morrison MD, palliative care expert.]
HealthLeadersMedia.  By John Commins.  Here.

July 10, 2015
Death panel lie may finally be put to rest with Medicare change.
Minneapolis Star-Tribue.  Editorial Board. Here.

July 12, 2015
Commonsense Care: Medicare will pay doctors for end of life talks.
Pittsburgh Post-Gazette.  Editorial Board.  Here.

July 12, 2015
No 'death panel' controversy this time over end of life talk.
Daily Herald.  From Lena Sun, Washington Post.  Here.

July 24, 2015
Choosing How We Die.
New York Times Op-Ed.  By Theresa Brown.  Here.

Brown writes in part:
In 1975 Shirley Dinnerstein, a 64-year-old Massachusetts woman, learned she had Alzheimer’s disease. Three years later she was in an “essentially vegetative state,” according to her case records, and a court was deciding whether to honor her previously expressed wish not to be resuscitated if she died. The court ruled in her favor, establishing, for the first time, that patients’ care choices at the end of life could be officially documented in the medical record without being validated in court. 
The Dinnerstein case set off a sea change in patient choice, but it remains an incomplete one. Patients have little guidance in navigating end-of-life choices, and doctors have little incentive to offer it. That may soon change: On July 8 the Centers for Medicare and Medicaid Services proposed a rule that would reimburse physicians for discussing “advance care planning” — treatment options for the very ill, including do-not-resuscitate orders — with Medicare patients. After a public-comment period, it is proposed to go into effect by Jan. 1. 
Ideally, such conversations will help patients reach the decision that best suits them....With the Republican presidential campaigns already generating heat, we may hear such scaremongering again, and soon. ...This new rule has the potential to give the sickest among us the ability to say, "This is what I want!" at the most vulnerable point in their lives.
August, 2015
JAMA Oncology:  Narang AK et al. Trends in advance care planning in patients with cancer: Results of a national survey.  1:601-608, here.  Writing in summary:

Use of durable power of attorney increased significantly between 2000 and 2012 but was not associated with end of life (EOL) care decisions. Importantly, there was no growth in key Advance Care Planning domains such as discussions of care preferences. Efforts that bolster communication of EOL care preferences and also incorporate surrogate decision makers are critically needed to ensure receipt of goal-concordant care.
In the same JAMA Oncology issue, "Participatory gaps in the advance care planning process of patients with cancer" (here) and "Advance directives: Sometimes necessary but rarely sufficient" (here).

September 24, 2015
NEJM Letters on Interventions in Very Advanced Dementia: here.


Policy Footnotes...

Medicare got way ahead of the opposition this time by (apparently) ensuring favorable covering within a couple hours of the rule release.   Here's one way opposition could try to retrench.  Medicare has regulations stating it pays only for health care services that are legal in the states they are provided in, and by appropriately credentialed providers in such a state (e.g. 42 CFR 410.26(b)(7); 78 Fed Reg 74811, 2013).  Someone will raise the issue of whether Medicare will now use federal tax dollars from all citizens, to pay doctors (or physician assistants and nurse practitioners), to discuss physician assisted suicide, in states like Oregon.
But:  Whether the issue will be as controversial in August 2015 as it was in 2009 and January 2011 is unknown.  As Bloomberg recently documented, Americans can change their minds quite radically over a few years (here).
Clearly, the first-night NYT coverage was entirely favorable.  By the weekend, the Minneapolis Star-Tribune wrote, "It took more than five years, but the outbreak of “death panel” hysteria — a national embarrassment fueled by former Alaska Gov. Sarah Palin — finally appears to be ending." [July 12, above].  Similarly, the Pittsburgh Post-Gazette could, by the weekend, write:  "Nearly six years have passed since former Alaska Gov. Sarah Palin turned end-of-life counseling between doctors and patients into a toxic political football....Fortunately, the dark days of slandering commonsense counseling are over." [July 12, above]. 

The CPT Codes.
Regarding the literal CPT codes.  Note that while advance care planning decisions may be rich, deep, and challenging, the CPT codes include "explaining forms" by any "qualified health professional" and the experience needed to "explain forms" is probably not codified in any state.   Also note that the service covers a doctor talking to a patient, but also a "health care professional" talking to "family member(s) and/or surrogate" which is pretty broad.  

Regarding the coverage.  CMS states that more detailed coverage decisions would be made by its contractors, but it does state the setting would be an illness "such as heart failure and diabetes."  That is, the code would simply be another aspect of "treatment and management" of a known sickness.  A healthy patient might also want to discuss advance care planning (for example, in the event of a stroke or sudden coma status after an MI) and the CPT code would allow for that but not the setting of coverage currently proposed by Medicare.

Medical Literature.
As of July 2015, the phrase "advance care planning" had 1,965 hits on PubMed.  For example:

  • "Advanced care planning and end-of-life decision making in dialysis: Randomized controlled trial targeting patients and their surrogates."  Song MK et al. (2015) Am J Kid Dis (here). 
  • "The economic evidence for advance care planning: Systematic review." Dixon J et al. (2015) Palliat Med (here).  
  • "Advance care planning in the eldery."  Lum HD et al. (2015)  Med Clin North Amer (here).
  • "Can the United States buy better advance care planning?"  Bomba PA & Meghani SH (2015) Ann Intern Med (here).   
  • "Reengineering advance care planning to create scalable, patient- and family-centered interventions."  Chiarchiaro J et al. (2015)  JAMA (here).
  • "Stability of end-of-life preferences: a systematic review."  Auiemma CL et al. (2014) JAMA Intern Med (here).
  • "Communication about serious illness care goals: A review and synthesis."  Bernacki RE et al. (2014) JAMA Intern Med (here).
  • "Failure to engage hospitalized elderly patients and their families in advance care planning." Heyland DK et al. (2013)  JAMA Intern Med (here).
April, 2016
By April 2016, few doctors had used the new 1/1/2016 benefit.  Here.