House Health-Care Bill Does Not Prohibit Paying Federal Funds to Health Providers Who Withhold Food and Water From Patients

November 9, 2009 - 9:05 PM
Federal funds could go to reimburse doctors who withhold nutrition or hydration as part of end-of-life care. 

Rep. Charles Boustany (R-La.) delivered the Republican response to President Obama's prime-time speech on health care reform on Wednesday, Sept. 9, 2009. (Photo from Boustany's Web site)

(CNSNews.com) – The health-care bill that cleared the House on Saturday says federal funds cannot be used to "promote" assisted suicide, euthanasia or mercy killing. But Rep. Charles Boustany, Jr. (R-La.), who is a surgeon, says the bill does not prohibit the use of federal funds to pay health care providers who provide “end-of-life care” that involves denying food and water to a patient.

“H.R. 3962 does not rule out using federal funds to reimburse health providers should they withhold nutrition or hydration,” Boustany spokesman Rick Curtsinger said. 

“The bill says end-of-life care planning materials may not 'promote' assisted suicide, but it leaves this term intentionally vague so the ban might not apply in states with ‘death with dignity’ laws.” 
 
Michael Steel, press secretary for House Minority Leader John Boehner (R-Ohio), agreed, saying, “Our understanding is that this sort of thing would be allowed.”

Assisted suicide has been approved by voters in two states, Oregon in 1994 and Washington in 2008, and cleared by a lower court in Montana.

Sec. 240 of H.R. 3962, titled “Dissemination of Advance Care Planning Information,” stipulates the kind of end-of-life planning that health providers in the government-exchange insurance program may provide to patients.  The section expressly prohibits "promotion" of assisted suicide and euthanasia but does not prohibit funding health care plans that pay health care providers who withold food or water.
 
Under the heading, "Prohibition on the Promotion of Assisted Suicide," the bill says "information provided to meet the requirements of subsection (a)(2) shall not include advanced directives or other planning tools that list or describe as an option suicide, assisted suicide, euthanasia, or mercy killing, regardless of legality."

The next paragraph says: "Nothing in paragraph (1) shall be construed to apply to or affect any option to—(A) withhold or withdraw of medical treatment or medical care; (B) withhold or withdraw of nutrition or hydration; and (C) provide palliative or hospice care or use an item, good, benefit, or service furnished for the purpose of alleviating pain or discomfort, even if such use may increase the risk of death, so long as such item, good, benefit, or service is not also furnished for the purpose of causing, or the purpose of assisting in causing, death, for any reason.

 It further says, “Nothing in this section shall be construed to preempt or otherwise have any effect on State laws regarding advance care planning, palliative care, or end-of-life decision-making.”
 
Another section of the bill, Sec. 1233 titled “Voluntary Advance Care Planning Consultation,” lays out acceptable procedures for end-of-life planning.
 
Aaron Albright, press secretary for the majority Democratic members of the House Education and Labor Committee, told CNSNews.com the bill does not address the question of payment for end-of-life care. “We leave the current system intact,” Albright said.

When asked if the health-reform bill would rule out the use of federal funds to reimburse health-care providers who withdraw or withhold nutrition or hydration, Albright said it was a “false question.” 

“We do not change any practice, or any law, or anything like that,” Albright said. “(End of life decisions) will be left up to the patient and their doctor and their family.”
 
Albright said that assisted suicide is a “very difficult” and “intensely personal” decision, to be made by patients, families and doctors. End-of-life counseling and the use of advanced directives can guarantee a person’s wishes will be carried out, he said.

“I think by making sure what patients want at the end of their life that this could help a lot of people,” he said. “These heart-wrenching decisions, you know, a lot of families won’t have to go through this because they know exactly what their family member wanted.”
 
But a source close to Republican members of the committee, said that it would be up to the government--Medicare and the Department of Health and Human Services--to develop guidelines to specifically prevent government-funding going toward withdrawal of feeding tubes and water. Those guidelines are unlikely to occur.

David O’Steen, executive director at the National Right to Life Committee, said he finds it troubling that the bill does not include language to protect individuals from discrimination based on age, illness, or disability.
 
O’Steen noted that Medicare, which under the bill would pay health-care professionals to counsel seniors on "advance medical directives," is hoping the counseling sessions would save “a lot of money.”
 
While advanced directives are positive when they promote life, O’Steen warned, “This factor of an older person being counseled by an authority figure like a doctor and being nudged towards signing away their right to life-saving treatment is chilling.”
 
At the same time that it could make doctor-assisted suicide more frequent, the bill contains other elements that could make euthanasia more frequent, including health-care rationing, O'Steen said..

Action on health-care now moves to the Senate, which might not happen until after the new year.

Here is the text of Section 240 of the House health care bill that prohibits "promotion" of assisted suicide but not funding of it:

SEC. 240. DISSEMINATION OF ADVANCE CARE PLANNING
2 INFORMATION.
3 (a) IN GENERAL.—The QHBP offering entity —
4 (1) shall provide for the dissemination of information related to end-of-life planning to individuals seeking enrollment in Exchange-participating health benefits plans offered through the Exchange; (2) shall present such individuals with—(A) the option to establish advanced directives and physician’s orders for life sustaining treatment according to the laws of the State in which the individual resides; and (B) information related to other planning tools; and (3) shall not promote suicide, assisted suicide, euthanasia, or mercy killing. The information presented under paragraph (2) shall not presume the withdrawal of treatment and shall include end-of-life planning information that includes options to maintain all or most medical interventions.
(b) CONSTRUCTION.— Nothing in this section shall be construed—(1) to require an individual to complete an advanced directive or a physician’s order for life sustaining treatment or other end-of-life planning document; (2) to require an individual to consent to restrictions on the amount, duration, or scope of medical benefits otherwise covered under a qualified health benefits plan; or (3) to promote suicide, assisted suicide, euthanasia, or mercy killing.
(c) ADVANCED DIRECTIVE DEFINED.—In this section, the term ‘‘advanced directive’’ includes a living will, a comfort care order, or a durable power of attorney for health care.
(d) PROHIBITION ON THE PROMOTION OF ASSISTED SUICIDE.—
(1) IN GENERAL.—Subject to paragraph (3), information provided to meet the requirements of subsection (a)(2) shall not include advanced directives or other planning tools that list or describe as an option suicide, assisted suicide, euthanasia, or mercy killing, regardless of legality.
(2) CONSTRUCTION.—Nothing in paragraph (1) shall be construed to apply to or affect any option to—(A) withhold or withdraw of medical treatment or medical care; (B) withhold or withdraw of nutrition or hydration; and (C) provide palliative or hospice care or use an item, good, benefit, or service furnished for the purpose of alleviating pain or discomfort, even if such use may increase the risk of death, so long as such item, good, benefit, or service is not also furnished for the purpose of causing, or the purpose of assisting in causing, death, for any reason.
(3) NO PREEMPTION OF STATE LAW.—Nothing in this section shall be construed to preempt or otherwise have any effect on State laws regarding advance care planning, palliative care, or end-of-life decision-making.