End Of Life Decisions And The Health Care Bill A portion of one health care bill in congress states that the cost of consultations between patients and doctors over "end-of-life" issues would be covered. The proposal has sparked fears that the bill promotes euthanasia.
NPR logo

End Of Life Decisions And The Health Care Bill

  • Download
  • <iframe src="https://www.npr.org/player/embed/111742098/111742094" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript
End Of Life Decisions And The Health Care Bill

End Of Life Decisions And The Health Care Bill

End Of Life Decisions And The Health Care Bill

  • Download
  • <iframe src="https://www.npr.org/player/embed/111742098/111742094" width="100%" height="290" frameborder="0" scrolling="no" title="NPR embedded audio player">
  • Transcript

A portion of one health care bill in congress states that the cost of consultations between patients and doctors over "end-of-life" issues would be covered. The proposal has sparked fears that the bill promotes euthanasia.

Alex Wayne, health policy reporter for CQPolitics.com
Jay Sekulow, chief counsel, American Center for Law and Justice
Dr. Joseph Fins, chief of medical ethics, Weill Cornell Medical College


This is TALK OF THE NATION. I'm Lynn Neary in Washington. Neal Conan is away this week.

With Congress on summer recess, the health care debate has moved from Capitol Hill to town halls around the country. Angry protests have broken out as rumors spread about what is and what isn't in the health care proposals being considered by the House of Representatives.

One of those rumors concerns a provision that would provide Medicare coverage for an end-of-life consultation every five years. Critics say the proposal in effect promotes euthanasia. Supporters of the health care overhaul argue that it merely promotes advanced planning and is not mandatory, as critics have charged. Today on TALK OF THE NATION, the question of end-of-life care.

Later on the Opinion Page, serving time for a threatening song. But first, end-of-life decision and the health care overhaul, a slippery slope to euthanasia or sound medical practice?

We want to hear from listeners this hour who had experience with making decisions around end-of-life care. How did you make those decisions? Who was in the room with you? Tell us your story.

Our number here in Washington is 800-989-8255. The email address is talk@npr.org, and you can join the conversation at our Web site. Go to npr.org and click on TALK OF THE NATION.

And we begin with Alex Wayne. He's a health policy reporter with cqpolitics.com. He joins us here in Studio 3A. Thanks so much for coming in.

Mr. ALEX WAYNE (Health Policy Reporter, cqpolitics.com): Thanks so much for having me.

NEARY: So let's start out with the language in this provision. It's in Section 1233 of the House bill, and it seems that people are reading it and interpreting it in a lot of different ways. So what exactly does this provision, called advance care planning, what does it actually say?

Mr. WAYNE: I'm not sure how many people are actually reading it, but what it says is that Medicare would be authorized to pay doctors to have conversations with their patients about end-of-life planning, and then it goes to define some subjects that doctors would need to cover as part of these conversations if they want reimbursement from Medicare. Let me be clear here, it doesn't require anything.

NEARY: It's not mandatory.

Mr. WAYNE: It's voluntary.

NEARY: Completely voluntary.

Mr. WAYNE: It's voluntary.

NEARY: Because that's one of the concerns, of course, of critics.

Mr. WAYNE: Right, of course. And it doesn't require anything except that if doctors want reimbursement for having these conversations, they do have to cover a couple of specific subject areas, and those include advance directives or living wills, they're sometimes called, power of attorney and designating a health proxy and then something called orders for life-sustaining treatment, which is kind of a developing area of medical policy. And that's probably the most, to the extent, this is controversial or the extent it should be controversial. The orders for life-sustaining treatment is probably the most controversial area of the provision of the bill.

NEARY: Now, one other question regarding the doctor's role, this does say that doctors can initiate the conversation.

Mr. WAYNE: Sure, yeah.

NEARY: In other words, the patient doesn't come to the doctor and say I'm interested in end-of-life care. The doctor proposes it to them.

Mr. WAYNE: Well, I suppose the patient might ask, and then the doctor could, you know, say, well, under Medicare, I'd like to have this conversation with you, and we have to cover these areas, and it's going to take, you know, however long it's going to take, and are you okay doing that? And then they would go into that conversation.

I think it's also important to note that the only people involved in this conversation are the patient and the doctor. There aren't bureaucrats in the conversation, there aren't insurance executives or accountants or anybody else in the conversation. It's the doctor and the patient talking about these issues.

NEARY: All right. And you bring that up because people are referring to panels being involved. Explain that. Why would people think there were panels involved?

Mr. WAYNE: I'm not sure. I've read this provision a few times, and there are no panels or commissions even created as part of this piece of the bill.

Now, the bill creates a whole lot of different panels and commissions, and people are right to ask what those are for. But this particular piece of the bill doesn't create any panels or commissions. It doesn't - this doesn't involve anybody except you and your doctor.

NEARY: Is this the first time Congress has ever addressed any issues involving end-of-life care or end-of-life questions or the way we deal with these issues?

Mr. WAYNE: Well, I think it's, you know, it's the first time I recall it being addressed in a serious policy way. There was, of course, the infamous Terri Schiavo incident from a few years back, where Congress kind of, I guess, got pressured into a conversation about this. But I don't think anybody would say they addressed it in a policy way.

So I can't tell you in all of history whether Congress has ever addressed this issue, but it's the first time I've seen it addressed.

NEARY: Yeah. Now in terms of the compensation question, this is one of the concerns that critics have, which is that somehow by tying compensation to end-of-life care, questions around the end of life and decisions people have to make that there may - it may involve some kind of incentive for doctors to encourage people to perhaps sign advanced directive that they otherwise wouldn't.

Mr. WAYNE: Yeah, there's absolutely nothing like that in the bill. All the bill says is if you want to have this sort of a conversation, this planning conversation with your patient, we'll reimburse you, as long as you cover these areas. The bill doesn't say anything about what the result of this conversation has to be. It doesn't have to result, actually, in the patient signing an advanced directive or the doctor establishing an order for life-sustaining treatment.

Now, the doctors are supposed to report back to the government about what the results of the conversations are simply because the government is interested in knowing what the result of all this is. Do directives result from this? Is there a better end-of-life care as a result of this policy? Those are questions that the government would like answered as part of this policy if this bill becomes law.

NEARY: And these conversations can also take place every five years, I guess, starting when a person's eligible for Medicare, which is at the age of 65. So every five years after the age of 65, a doctor can initiate this conversation and then be reimbursed.

Mr. WAYNE: Yeah. They can take place more often if someone faces an end-of-life situation in the interim, between the five years, like if you get a terrible diagnosis of cancer or whatever and you're facing this decision imminently, then the doctor can get reimbursed for having the conversation with you more often.

NEARY: Yeah. Are insurance companies involved in this in any way, shape or form? You said there's no panel, but are they involved?

Mr. WAYNE: No, there's nothing I've read in the bill that suggests insurance companies have any say in this. This is about Medicare. It's not even about insurance companies. There's nothing in the bill that would reimburse, for example, doctors for the under-65-age-group population. Nothing in the bill establishes reimbursement to them for having end-of-life conversations with their patients.

NEARY: And why every five years? Is that because we need to, or people in general need to reassess these kinds of decisions?

Mr. WAYNE: Sure, yeah. But one of the problems with advanced directives now, as I understand it - I guess I should be clear. I'm not a real expert on the subject area, but from what reading I've done and talking to people I've done about this, one of the problems we have now is that people will sign an advanced directive or a living will and then 10 years later, they actually face an end-of-life situation, or they have an accident, and they're incapacitated.

And so doctors are faced with a decision. Do I go by a piece of paper that somebody signed 10 years ago, even though they just had an accident, and they're incapacitated, and they can't make decisions for themselves, but maybe they would recover from whatever happened to them.

Well, do I follow what they said 10 years ago, or do I make - do I follow my own judgment and give them whatever treatments I think are necessary? And right now, one of the problems with advanced directives is that doctors generally do whatever is medically necessary regardless of what you said in your advanced directive.

NEARY: I see. Also, what about - does this involve close relatives in any way because sometimes close relatives will be making these decisions?

Mr. WAYNE: Sure. That would - one of the subjects doctors are required to cover to get reimbursement is power of attorney and designated health proxy, and usually, somebody's health proxy is going to be a family member.

I think when conversations like this take place, probably you're going to have family members in the room with you. It's - the law says, or the bill says, it's you and your doctor. But I'm sure if the patient wanted to have a family member in the room, that would be fine.

NEARY: Okay. How did this become so controversial?

Mr. WAYNE: Well, on July 23, the first time I became aware of it, the House majority leader, John Boehner, issued a press statement that said this provision of the bill could lead to Medicare patients being pressured to sign directives or orders for life-sustaining treatment that they otherwise wouldn't sign.

It's not clear to me who would exert that pressure because, again, there's nothing in the bill about compensating doctors in exchange for getting an advanced directive out of their patient.

So that was the first time I became aware of that. And as far as it blowing up into, you know, all of a sudden, we're going to be - Medicare is going to be paying for euthanasia, I really, I have a little trouble understanding where that came from.

NEARY: All right, Alex, thanks so much for joining us.

Mr. WAYNE: Sure, thank you.

NEARY: Alex Wayne is a health policy reporter at cqpolitics.com, and he joined us here in Studio 3A.

We're going to talk now about that divide over end-of-life planning and the argument that it is a slippery slope to euthanasia. Joining us now is Jay Sekulow. He is the chief counsel for the American Center for Law & Justice, and he joins us from his office in Virginia Beach, Virginia. Thanks so much for being with us, Mr. Sekulow.

Mr. JAY SEKULOW (Chief Counsel, American Center for Law & Justice): Thanks for having me.

NEARY: Now, I know you have some real concerns about this advance care planning provision in the House bill and that you do think it could lead to euthanasia. How? Why?

Mr. SEKULOW: Well, there's a couple things that I'm concerned about. First of all, I don't think it's appropriate to look at this bill in isolation or this provision in isolation. Everybody's referring, of course, to Page 424, which is where Section 1233, the advance care planning consultation takes place, but you can't look at it in isolation.

I do a lot of cases at the Supreme Court of the United States, and you always have to look at the overall context. And look, all of us are faced with these end-of-life decisions, and I've had to make them with my own mother. I just went through this with my wife's mother, my mother-in-law, who recently passed away. You have to make these decisions, and consultations with doctors is critical.

The problem here is the financial incentive for the entire bill is to reduce cost. That will end up either being one of two things: rationing of services or life care, end-of-life-care decisions based on economic motive, where the doctor becomes basically the advocate for the determination as to life end, which should really be a decision that the doctor's involved in, obviously, but with consultation with the family.

By the way, and I appreciate the reporter from CQ talking about this, but I do a lot of work in the HIPAA area, which is the privacy laws. And it's not so clear that, other than the doctor being in that room with the patient, that there be anybody else in that room under HIPAA. That's a problem.

And also the idea that the government itself, the bureaucrats, or the government, the doctors will be reporting back to the government these results. I mean, it almost sounds like a commission sales approach, which is not what doctors need to be in the position of doing. This idea you report back: Were you successful in getting A, B, C and D.

And these are decisions that have medical implications, ethical implications, implications for people that have religious faith, for those that do, moral concerns. All of those are the totality of what takes place here. And this idea that you just simply give this to a government commission, who's then in consultation with the doctor, I think, is dangerous. Having said that…

NEARY: But wait. How is it a government commission? I still am not clear on that because I thought that we just heard him say…

Mr. SEKULOW: That's not correct. The entire program - that's why I'm saying you cannot read Section 1233 in isolation. The entire program, under the Health Reform Bill, is monitored by a government panel. Who do you think came up with, for instance, what would be included in the consultation? If a consultation's going to take place, and if in fact it is going to be a reimbursable expense under the Medicaid, which I have no problem with, who made the determination of what goes in that consultation? The government did. The panel did. The medical experts.

NEARY: Okay, stay with us because we're going to continue this discussion after a short break. You're listening to TALK OF THE NATION from NPR News.

(Soundbite of music)

NEARY: This is TALK OF THE NATION. I'm Lynn Neary in Washington. We've just been discussing some of the facts about what is in the health care proposals and what's not. Now we're going to talk more about the arguments over end-of-life planning and the worry that it's a slippery slope from government-paid-for consultations to euthanasia.

We want to hear from listeners who have experience with making decisions around end-of-life care. How did you make those decisions? Who was in the room with you?

Our number here in Washington is 800-989-8255, and our email address is talk@npr.org, and you can join the conversation on our Web site. Go to npr.org, and click on TALK OF THE NATION.

Joining us for this discussion are Jay Sekulow. He is the chief counsel for the American Center for Law & Justice in Virginia Beach, Virginia.

And just to continue with you for one more moment, Mr. Sekulow, before we go to our next guest. I just want to ask you a little bit more about your concerns about tying compensation to these discussions about end-of-life care, the fact that doctors will be reimbursed by Medicare for these consultations.

Why is there so much concern about that? Why does that lead you to believe that there's an incentive in that, an implied incentive that doctors will try to convince people to sign directives against their will?

Mr. SEKULOW: It's similar to what Charles Allen said today in the Washington Post, who's of course an editorial staff member of the Washington Post. And he said, you know, although it's not mandatory, it's not quite purely voluntary either. And the reason it's not purely voluntarily is this isn't a situation - I have no problem with Medicare or Medicaid reimbursing for end-of-life consultations, especially if they were put in the context of where the patient requested an end-of-life consultation, and it wasn't going to be covered under Medicare.

The idea that the doctor, who then has to report the findings to the government, is going to be compensated for doing that if they check the following boxes, and that is they, you know, kind of review the mandatory aspects of what the government panel has put in place here and what you have to cover, that's the concern.

So it's not just the financial incentive, which I think is a dangerous situation. It is this idea that the government has said here's what we want covered, and we want you to report back to us as to whether you were successful or not in getting this arranged.

That's how it reads. And I'm not the only one saying this, by the way. Now, I'm a conservative. Chuck Lane from the Washington Post is not, and he says he's concerned about it because of the context when you read the entire bill and you understand that the bill is about financial incentive.

But I do want to underscore, and it's very important, that I think that end-of-life care consultations are a good thing. I think that Medicare or Medicaid paying for that is a good thing, but I think it has to come up in the right context. And the questions, what's allowed to be discussed, should have been much broader than what's mandatory here.

NEARY: All right. Let's bring in another guest now, Dr. Joseph Fins. He is the chief of medical ethics at Weill Cornell Medical College and is a practicing internist. And he's with us from the studios of Carnegie Hall in New York. Thanks so much for being with us, Dr. Fins.

Dr. JOSEPH FINS (Chief of Medical Ethics, Weill Cornell Medical College): Good to be here.

NEARY: I think you've been listening, and I wonder if you can address some of the concerns that you've been hearing expressed by Mr. Sekulow.

Dr. FINS: Well, let me just clarify a factual error that I think your - Mr. Wayne had on the outset. There was, actually, a major policy initiative early in the '90s called the Patient Self-Determination Act, in which Congress, in a bipartisan manner with Senator Danforth from Missouri and Senator Moynihan from New York, a Republican and a Democrat, after the Cruzan case, got together and authored this legislation that made it a requirement that all patients going into institutions receiving federal health care dollars be asked about the presence or the absence of an advanced directive.

This was the first major take on advanced-care planning. And one of the critics of that was that it was an under-utilized activity because the incentives were not aligned to have the conversations that most people -in the literature, when you survey patients, 80-some percent of patients want to have these kinds of conversations.

Eighty percent of patients die with a do-not-resuscitate order. And the problem is, and my major concern, and I agree with Mr. Sekulow that these conversations are important. But the default is usually they don't occur. And families are left having to make decisions that they're uninformed about and they don't know the patient's preferences.

The very person that you would want to talk to, Lynn, if you were in this situation with a loved one, is the person who can no longer speak for themselves. And what this bill simply does, what this legislation simple does, is encourages that conversation so that families can speak with each other. This is the true emblem of what I consider family values.

NEARY: All right. We're going to take some calls now. We're discussing end-of-life care. My guests are Dr. Joseph Fins, chief of medical ethics at Weill Cornell Medical College in New York; and we're also talking with Jay Sekulow. He is the chief counsel for the American Center for Law & Justice. And we're going to take a call, and we're going to go to Mary(ph), who is calling from Greenville. Hi, Mary.

MARY (Caller): Yeah, I'm still here.

NEARY: Go ahead.

MARY: I feel like that, you know, like the thing when you talk about do not resuscitate, that can be a problem right there because a person could just fall down. And if they've got a do-not-resuscitate order, how do you deal with that?

That was a conversation I had a lot with my mother. Anyway, the way the person ends up dying is not necessarily the, you know, you go through the process of getting the advanced directives, and the hospital's really good about making sure you have all this. But in the end, you can't really be specific because you don't really know how the person's going to die. I mean, until it happens, and if it's a hospice situation, that gets even more complicated, or if it's another family member, who the person is married to who makes the decision, and people just say, oh, leave now, and come back after supper, and they'll be dead.

NEARY: Mary, Mary, can I ask you a question? Did you go through this with a family member, and are you talking about of experience now?

MARY: I am talking from personal experience.

NEARY: What happened in your particular situation?

MARY: Okay. My sister had an autoimmune disorder, (unintelligible), and we were told - she was married, of course - and we were told that she was having cardiac arrests because there was a lot of blood in her lungs and that she would just continue to have cardiac arrests.

So her husband, and we got together, and they decided that they wanted to take her off life support. And the doctors said don't bother to sit around. Just go out and have supper, and come back, and she'll be dead. And I thought that - and of course, I had tried to get a minister to be present. There was no minister present. They were too busy at the hospital with other - the chaplains had other responsibilities, even though we had made an appointment.

My father, he passed away. He was in - one doctor said he needed a hospice, another doctor said he didn't. They threw him in the nursing home for a night, threw him back in the hospital, said he needed, you know, he was - had internal bleeding. No minister was present there, either.

NEARY: Mary, do you think it would have been better if your father and your sister had had the opportunity, perhaps many years before, to have a consultation with a doctor, to talk these things through?

MARY: I think it would have been better, and my mother, of course, she had a good consultation with her doctor. But, again, even though you have everything filled out, like I would talk to her, and so you know, suppose you fall down, do you still want the do not resuscitate. She said, well, maybe if it's not something life-threatening, I would want to be resuscitated.

So you get into those confused - areas of confusion. And like I say, the way the person ends up passing away, you know, unless you have ESP, which we most don't, you cannot - you do not know how the person…

NEARY: Right.

MARY: And that's another thing. I feel like at the end, you know, you've got these directives, that's fine. But when the person's in the process of dying, you need supportive nurses, you need supportive religious advisors or whoever, and family members that can help you deal with these things in a positive way because sometimes you have just a very few days or minutes to make snap decisions, and if you're not informed, you know, you've got a problem.

NEARY: Okay, thanks very much for your call, Mary.

MARY: You're certainly welcome.

NEARY: I think Mary has brought about a lot of different things here, and Dr. Fins, I'm going to ask you to respond to some of what she's saying and how - and explain, perhaps, how advanced planning might help you in the situations she has described, which is when you get to the end, you know, and you're in the most emotional, you know, life experience ever.

Dr. FINS: Right. So I mean, I think the most important thing is to prepare for the situation before it happens. So if Mary had had the opportunity to speak with her loved one and been designated as a health care proxy or a durable power of attorney for health care, she would be empowered in a way that she wouldn't necessarily be in some states to make choices for her mother, to have standing in the room, including, you know, standing vis-à-vis HIPAA to be in the room to have the conversation.

But most importantly, she'd be prepared knowing what her loved one wanted ahead of time so she could represent her interest and not have lingering doubt about what to do. And it's also important to distinguish a do-not-resuscitate order, which is really specific to what you do in the setting of a cardiac arrest, to a durable power of attorney for health care or health care proxy, which can articulate a whole range of preferences, including, you know, you want more care, not necessarily less care, and this is simply the conversation that this bill is trying to foster.

A final point, she's absolutely right. You know, there are not enough pastoral-care people, there are not enough trained nurses. There are not enough palliative-care people around. And historically, palliative medicine has been underfunded in hospitals around the country, and hopefully bringing some resources to these discussions will help to offset that need and provide more people that can be called upon at the most difficult times we face.

NEARY: All right, Jay Sekulow, I have an email here that's addressed to some of what you've been saying, from James(ph) in Albuquerque. As an attorney who deals in wills and probate planning, I provide health care directive forms to my clients and encourage them to fill them out. The forms are comprehensive and give the person a wide range of decisions, such as DNR or to use all means possible to prolong life.

I never presume to give my opinion on what directives the client should give, but it is vital that people give these directives lest they be subject to the wishes of others. To object to these provisions in the health care reform debate is disingenuous at best. Your guest's arguments are not persuasive. He agrees there should be planning, but this leads to euthanasia, nonsense.

How does planning lead to euthanasia, I guess, that's the question?

Dr. SEKULOW: Well, actually — let me just - let me say this. First of all, I agree with the idea of getting the information to the individual patient or, in that particular case with the lawyer of the client. I think, that's good. I have those filled out. My family has those filled out so we know where everybody understands. And I think it's a conversation worth having.

But what I am saying is the concern that I have, and it's not just a concern that I have, it's a lot of people have it on - both on the right and the left. And, again, I'm going to go back to what Chuck Lane - Charles Lane from Washington Post said. He said that in reading forward an article that was published in the Post, the Democratic strategists are, quote, "hesitant to give extra attention to the issue," that the doctor and I have been talking about, because they worry that it will further, quote, "agitate already-skeptical seniors."

Then Chuck Lane writes this: if Section 1233 is innocuous, why would strategies want to tiptoe around this subject? And here's why. Because it's different from a lawyer giving the information out and saying: here are your options, think about it, versus a doctor. And I agree with almost everything Dr. Fins said. The idea that the doctor would be involved in this and engaged in this, so we can get around the hip issue, you can get some of the family in there, that's all great. But this idea that then you're going to report back to the government where you were successful or where you were not successful is the problem. What I would tell the lawyer from Albuquerque, and I appreciate that he wrote this, there's a difference between the role that we're playing here. The lawyer's role as advocate is to lay out the options as it exists under wills and trust law. I think that's great. But doctors…

Dr. FINS: And I think it's important…

Dr. SEKULOW: …have a very unique and different role. Let me just finish, please. The doctor is in a different role. The doctor is not just the advocate for the client, he is the physician. And when you start saying, I will bring up this conversation, I will report back to the government as to what our conversation was and whether I'm successful or not. Doctor, if they'd leave out the whole discussion about reporting back, that would make this a lot easier to handle.

NEARY: But don't they have to report back? I mean, isn't that just a requirement if you're going to get money?

Dr. SEKULOW: Why can't we just require - why can't - Lynn, can we not just require the doctor to say, I covered a variety of issues on end-of-life care? Why does the government have to know what was pushed and what was not?

NEARY: And let me ask you one other thing because I think a lot of people when they write wills are asked, do you want to also make out a living will? And it is a lawyer who's talking to you, and I found that kind of odd that a lawyer was talking to me about what is essentially a medical decision.

Dr. SEKULOW: Well, it's a medical decision. And a good lawyer is going to tell you to discuss it with your family, your doctor, your minister, your priest, whatever it might be. The lawyer's job is to say, here are the options under the law, that happens to be a medical power of attorneys, medical directives, DNR - those are allowed under the law. And a lawyer's obligation is to tell the client, here's what your option is.

That's a very difficult role than the physician. And I - believe me, and I've got physicians in my family, I respect it. I also want to say very clearly, I've dealt with hospice twice and I had great experiences both times. They did a phenomenal job. The doctors, the nurses should be applauded for their efforts. But that's markedly different from this provision. This provision can't be viewed in isolation because if you were to ask anybody, should advance consultation with doctors be part of Medicare reimbursement or Medicaid? They answer, yes. But this is part of an 1,100-page bill that is talking about finances.

NEARY: Jay Sekulow is chief council…

Dr. SEKULOW: It's also talking about…

NEARY: …for the American Center for Law and Justice. And you are listening to TALK OF THE NATION from NPR News.

We're going to take a call. We're going to go to Molly(ph) who's calling from Elkins Park. Hi, Molly.

MOLLY (Caller): HI. How are you?

NEARY: Good, thanks.

MOLLY: Good. In interest of full disclosure, I will tell you that I'm a palliative care nurse practitioner. But in spite of all my experience, when my grandmother was dying, she was 88, she had shared with her family that she did not want any lifesaving measures. She actually was in excellent health until she wasn't anymore. And we were really horrified with the physician at the hospital's unwillingness to discuss end-of-life care with us. And then, when it became obvious that hospice really was the most appropriate measure, he was really bad at talking about it.

So, I guess, our experience was such that even physicians with many years experience are not skilled always in talking about end-of-life care. So, I didn't know within this huge bill there was any provision about healthy medical students become comfortable with discussing end-of-life care. And if these physicians are having these conversations every five years, is anybody working with them to make sure that when they're having these conversations they're good at it?

NEARY: Okay.

MOLLY: That they're comfortable discussing it?

NEARY: A good question. Thanks, Molly. And Dr. Fins, can you respond to that?

Dr. FINS: Right. I think one of the reasons of this reporting function is to ensure of the quality of the conversation and make sure that the important topics are handled. And this bill is really about access to care writ large, not just universal access for all Americans, but also access in an area that just historically they've not had good access to.

I do know that there has been a - there's a major movement in the United States over the last 15 or 20 years to improve education in end-of-life care. We're doing that at Weill Cornell Medical College. I know in New York state there was a bill that was passed last year that's going to provide ongoing money for palliative care education. These are skills that physicians aren't necessarily born with and they have to learn. And I think it should be - the reason that the quality measure issue is so important is that we should hold the conversation to the same standard we would hold the provision of surgery or other talk therapies. And make sure that people have quality interventions that are productive and helpful into whatever direction it goes.

NEARY: Let me ask you this, Jay Sekulow, if - you were saying before that if this reporting provision were not there, you wouldn't have much of a problem with this it sounds like. Is that right?

Dr. SEKULOW: Well, I have problems with the bill in its entirety. But the provision itself, if there was just a standalone, Medicaid is going to reimburse doctors for doing consultations as part of a covered expenditure put in light…

NEARY: And we should say this is Medicare.

Dr. SEKULOW: …that would be fine. I mean, Medicare, that's fine. I mean, I won't have a problem with that. But this - but again, I don't want to take this - I don't want to take section 1233, page 424 out of an 1,100-page bill and just view with an isolation. You cannot do that. Not only does the law say you cannot do it, it makes - common sense says you can't do that. What you have to do is look at the bill in its entirety. And the idea is cost-saving financial control.

And, Doctor, I appreciate everything that you're involved in with your patient care, and I have a tremendous respect for doctors. And as I've said, I have doctors in my own family. But this idea that you're going to have more government engagement in an end-of-life decision, I can't imagine a doctor saying that's a good thing. The idea that it's covered under Medicare or Medicaid would be a good thing. But the idea that the government's going to give you the checklist of what you might cover, I think you should leave that to the professional associations and the families and the ministers that would be involved in this issue and the doctors.

Dr. FINS: And I think - sorry. I think…

NEARY: Quickly. Very quickly, Dr. Fins.

Dr. FINS: I think this bill does precisely that. It leaves it to good medical standards, medical norms and make sure that doctors have the opportunity to do this service for their patients.

NEARY: Right. Thanks to both of you.

Mr. SEKULOW: We can agree to disagree. Thank you.

NEARY: Dr. Joseph Fins is chief of medical ethics at Weill Cornell Medical College in New York, and Jay Sekulow is chief council for the American Center for Law and Justice. Stay tuned. I'm Lynn Neary. It's TALK OF THE NATION from NPR News.

Copyright © 2009 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.