On Friday, October 31, 2015, the chief medical officer of the Centers for Medicare and Medicaid Services announced a final rule which details how Medicare will pay practitioners to have conversations with patients about how they would like to be cared for at the end of life. Under the regulation, the patient is not obliged to have these conversations after a terminal diagnosis is made, or shortly before death is anticipated; the conversations may take place at any time, even before the patient becomes ill. The conversation may include discussions about life-sustaining treatments before they may be necessary, and about advance directives and the identification and appointment of a legally authorized representative to participate in the shared decision making progress if the patient were to lose decision making capacity. The rule, which will take effect in January 2016, creates new codes for reimbursement under the Medicare physician fee schedule.
It may seem remarkable that there should be any question about reimbursement for these often-time-sensitive, patient-directed conversations or discussions at all. But because Medicare payments have traditionally been tied to physicians completing and documenting finite “tasks” or “procedures,” these conversations have been “bundled” with other inclusive duties or responsibilities (such as taking a history or performing a physical or developing a treatment plan). The idea that Medicare should pay specifically for the service comes from the belief that if physicians received fairer compensation for providing the conversation and discussion, they would be better incentivized to comply. (Of course, this may or may not be the case, since many physicians clearly have been doing this all along as evidenced by the increased referrals to palliative care and hospice providers and services over the years.) But from 2013 Medicare data about terminally ill cancer patients, only about 47% of these patients receive hospice care, and the average length of stay in hospice is about 17 days. The statistics vary greatly from state to state with the better hospice and end of life care being provided in the Pacific Northwest and the worst in Alaska, Florida, North Dakota, and New York.