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Health Care Financing Reform and "Death Panels"

by Professor Will Huhn on August 17, 2009

in Wilson Huhn

     Presented below is a summary of our options regarding reform of how to pay for health care and a brief discussion of the false rumors about "death panels" supposedly contained in the pending legislation.  In tomorrow's entry I will describe the constitutional right to refuse lifesaving medical treatment which was established in the case of Cruzan v. Director (1990).

     Almost everyone agrees that the cost of health care and health insurance is out of control and that we have to reform the way we pay for health care.  People disagree about how we should change the current system, and there must be a wide-ranging and open debate about what we are going to do to solve this complex problem.  Accordingly, it was surprising to me upon returning from vacation to learn that the country has recently been consumed with the false assertion that pending federal legislation would establish "death panels" that would have the power to force euthanasia.  This was a ridiculous charge, and it has diverted the country from confronting the difficult problem we face – how to pay for medical care. 

    The federal law currently being considered before Congress never contained any reference to "death panels."  In this article Jim Rutenberg and Jackie Calmes of the New York Times traced the rumor to political rivals of the President and opponents of health care financing reform.  In fact, the House bill simply extended existing provisions in Medicare allowing doctors and hospitals to be reimbursed for advising patients about advanced directives – living wills and durable powers of attorney.  Those who concocted the rumor about "death panels" succeeded in terrifying a sizable segment of the population, and as a result the Senate has eliminated the provision allowing doctors to be paid for discussing living wills as described in this report by Christie Parsons and Andrew Zajac of the Los Angeles Times.  But this distraction has not brought us any closer to solving the crisis that we all face – as medical costs skyrocket, how can we provide or maintain affordable access to health care? 

     Over the next few months this country will have to decide how we can reduce the cost of medical care.  Options include expanding "medical savings accounts" allowing private individuals a tax incentive to pay for medical care out of their own pockets; requiring all employers to provide health insurance to employees; reducing or eliminating the tax deduction for health insurance provided by employers; providing government subsidies to individuals to assist them in purchasing health insurance; expanding Medicare and other government programs that currently pay for medical care for the elderly, the disabled, and children in families below a certain income level; expanding government programs like the Veterans Administration which provide medical services directly to individuals; and establishing government-supported cooperatives to purchase insurance or to negotiate directly with doctors and hospitals in setting rates of reimbursement for services.

     Living wills and durable powers of attorney are not "cost-saving" devices, but rather represent the best means for exercising a constitutional right – the right to refuse lifesaving medical treatment.  This right was first recognized in the case of Cruzan v. Director (1990).  I will discuss the Cruzan case in tommorrow's blog.