Friday, October 19, 2018

Memo to the U.S. Senate HELP Committee: Vote No on the Palliative Care and Hospice Education and Training Act

By Margaret Dore, Esq., MBA

For a summary sheet including a similar House bill (H.R. 1676), click here. For a pdf version of this memo, click here.

I.  INTRODUCTION

I am an elder law attorney and president of Choice is an Illusion, a nonprofit corporation opposed to assisted suicide and euthanasia.[1] Formed in 2010, Choice is an Illusion fights against assisted suicide and euthanasia throughout the U.S. and in other countries.[2] We also fight against hospice and palliative care abuse.

S. 693, the Palliative Care and Hospice Education & Training Act," amends the existing Public Health Service Act to require financial support for “Palliative Care and Hospice Education Centers.”[3] This is a new program, which will include direct patient care.[4]

Existing federal palliative care programs, such as the Medicare hospice benefit, are plagued by fraud, poor quality care and a gross waste of taxpayer money.[5] S. 693 must be rejected unless problems with existing programs are resolved; Congress must not throw good money after bad. The bill must also be rejected for the reasons set forth below. 

II.  DEFINITIONS

“Assisted suicide” occurs when a person provides the means or information for another person to commit suicide, for example, by providing a rope or lethal drug.[6] 

“Euthanasia” is the direct administration of a lethal agent to cause another person’s death.[8]  Euthanasia is also known as “mercy killing.”[9]

“Hospice/palliative care abuse” occurs when non-dying people are administered lethal doses of medication under the guise of relieving pain and suffering. This practice is sometimes termed “stealth euthanasia” or just “euthanasia.” 

III. OTHER TERMINOLOGY

Assisted suicide and euthanasia are sometimes described as “aid in dying,” “death with dignity” and “medical aid in dying.”[10]  Proponents use these terms interchangeably to mean assisted suicide and euthanasia.

IV.  FACTUAL AND LEGAL CONTEXT

       A.  The Proposed Act

On March 22, 2017, the proposed act was introduced in the Senate as S. 693 and in the House as H.R. 1676.  The House version was amended and then passed on July 23, 2018.  On July 24, 2018, the House version was received in the Senate, read twice and referred to this committee.

B.  The OIG Portfolio 

On July 30, 2018, the Office of the Inspector General (OIG) issued a portfolio highly critical of hospice.[11] The portfolio states: 
OIG investigations of fraud cases have uncovered hospices enrolling patients without the beneficiary’s knowledge or under false pretenses, enrolling beneficiaries who are not terminally ill, billing for services not provided, paying kickbacks, and falsifying documentation.[12] 
The portfolio also explains why enrolling patients in hospice who are not terminally ill can put them at risk, due to their no longer being eligible for curative care. The portfolio states:
Medicare hospice does not pay for curative treatment for a beneficiary’s terminal illness.... 
[A] beneficiary who is inappropriately enrolled in hospice care might be unwittingly forgoing needed treatment.  In one example, a hospice falsely told a beneficiary that she could remain on a liver transplant list even if she elected hospice.  When the beneficiary elected hospice, she was removed from the ... list.  (Footnote omitted).[13] 
C.  The OIG Recommendations

The OIG portfolio recommends 15 specific actions related to 7 areas for improvement to protect Medicare hospice beneficiaries and the integrity of the Medicare program.[14] The recommendations include the following:
[T]he Centers for Medicare & Medicaid Services (CMS) ... should develop and disseminate additional information on hospices, including complaint investigations, to help beneficiaries and their families and caregivers make informed choices about hospice care. (Emphasis added).[15]
D.  A $60 Million Fraud

On February 28, 2017, the US Attorneys Office for the Northern District of Texas issued a press release announcing the indictment of 16 individuals, including Bradley Harris, a co-owner of Novus Health Services and Option Health Services (collectively “Novus”).[16] According to the release, hospice beneficiaries suffered serious bodily injury or death in order to produce maximum profit for Novus. The release states:  
Harris would direct that patients be placed on continuous care [which had a higher billing rate]....
When a beneficiary was on continuous care, ... nurses would administer high doses of Schedule II controlled medications ..., whether the beneficiary needed the medication or not.... 
One reason for this aggressive medicating practice was that Harris wanted to ensure that the beneficiaries’ medical records contained documentation that would justify billing Medicare at the higher continuous care billing rate. There were instances when these excessive dosages resulted in serious bodily injury or death to the beneficiaries. (Emphasis added).[17]
As of June 15, 2018, at least three Novus employees had plead guilty.[18]

E.  The Human Cost

The human cost of palliative care and hospice abuse can also be found in the articles, letters and posts of still hurting individuals whose friends and/or family were allegedly killed in hospice.  (Attached hereto at A-48 to A-71).

V.  THE BILL MUST BE REJECTED

A.  Congress Must Not Throw Good Money After Bad 

Prior to enacting the hospice program recommended by the proposed bill, the Committee must assure itself that existing hospice and palliative care programs have been rendered safe and financially sound.  Otherwise, with the passage of a new hospice and palliative care program, there will only be more of the same: fraud, poor care and actual killing. The proposed bill must be rejected.
B.  The Bill Works Against the Right of Individuals to Make Their Own Choices
The bill repeatedly describes hospice and palliative care as  a benefit for patients and their families. [19] 

Patients and families can have divergent interests. The patient may want to get well and move on to the next stage of his or her life. The patient’s children may want inheritances. It is also well known that perpetrators are often family members who can feel themselves “entitled” to family member assets.[20]

This is a fundamental problem with the bill, that it is designed to serve two masters, i.e., the patient and the family. The bill thereby takes away from the right of the individual to make his or her own choices. The bill must not be enacted unless and until it is rendered exclusively patient centered.
C.  The Bill Applies to Persons with a “Serious Or Life Threatening Illness,” the Definition of Which Is Not to Be Decided until after the Bill Is Enacted in Consultation with Unnamed “Appropriate Professional Societies” and Other Parties. The Bill Has Other Undefined Terms So That Its Meaning Is Unclear and Therefore Not Ready for Passage
The bill uses the phrase, “serious or life-threatening illness,” twelve times, but does not define it.[21]  The bill also provides for the definition to be determined by the Director in consultation with other parties after the bill is enacted.[22] The bill also has terms such as “life-limiting prognosis” and “life-limiting illness,” which are not defined.[23] With this situation, there is uncertainty as to exactly whom the bill will apply  and/or what it means.

Given that the bill topic involves life and death, the bill must not be enacted without having the above terms defined and/or otherwise clarified with certainty. Once again, the bill is not ready for passage.
D.  If Enacted, the Bill Will Undermine OIG’s Recommendation That the Centers for Medicare & Medicaid Disseminate Information on Hospices, Including Complaint Investigations
As described above, OIG’s recommendations for improvement of the Medicare hospice benefit include that the Centers for Medicare & Medicaid Services (CMS) should develop and disseminate additional information on hospices, including complaint investigations, to help beneficiaries make informed choices about hospice care.[24]

The bill instead provides for a mandatory national education and awareness campaign to inform patients, families and health care professionals about the benefits of palliative care.[25]

The bill also requires publication of this information on the Internet websites of relevant Federal agencies and Departments, including the Centers for Medicare & Medicaid Services (CMS).[26]

More to the point, if the bill is enacted, requiring relevant federal websites to “promote the benefits of palliative care,” will those same sites be allowed to also describe problems with palliative care, and/or will those sites be silenced? 

Moreover and regardless, will the required mandatory reporting of palliative care as a “benefit,” no matter what the facts, be fair to the public or will it be a fraud on the public and a violation of the public’s right to know? 

For all of these reasons, the proposed mandatory national education and awareness campaign to promote the benefits of palliative care must be rejected.
E.  The Bill Does Not Require Hospice Patients to Be “Terminally Ill,” Which Will Potentially Create Confusion in the Law and/or Undermine Medicare Fraud Litigation
In order to elect hospice under Medicare, current law requires that an individual be certified as “terminally ill.” This means:
[T]he individual’s prognosis is for a life expectancy of 6 months or less if the terminal illness runs its normal course.[27]
The bill does not use the phrase, “terminal illness.”[28] The The bill also states:
Hospice is palliative care for patients in the last year of life.... Hospice is a covered benefit under the Medicare program.[29]
With this language, the bill can be read as expanding the Medicare hospice benefit to non-terminal people, who, if they sign up for hospice, will be disqualified from receiving curative care. Medicare fraud litigation based on the requirement of a terminal illness may no longer apply and/or may be unclear.

VI.  CONCLUSION

Existing palliative and hospice care programs, such as the Medicare hospice benefit, are plagued by fraud, poor quality care, abuse, arguably murder, and a gross waste of taxpayer money.

Adding another program when existing programs are far from under control makes no sense and will only cause more of the same. It’s time to stop the waste, bleeding and heartache. I urge you to vote “No” on S. 693.

Updated, October 19, 2018

Margaret Dore, MBA, Esq.

FOOTNOTES
[1]  I am an elder law and appellate attorney licensed to practice law in Washington State since 1986. I am also a former Law Clerk to the Washington State Supreme Court and the Washington State Court of Appeals. My CV is attached hereto at A-1 to A-4. See also www.margaretdore.org
[2]  www.choiceillusion.org
[3]  A copy of the bill is attached hereto at pages A-5 to A-19.
[4]  See bill, at pages A-8 and A-9 (describing patient care including “clinical training” and “service rotations”).
[5]  See: Office of Inspector General (OIG) media release dated July 30, 2018, attached hereto at A-20; and Joanne M. Chiedi, Principal Deputy Inspector General, “Vulnerabilities in the Medicare Hospice Program Affect Quality Care and Program Integrity: An OIG Portfolio (excerpts attached hereto at A-21 to A-36).  The portfolio can be viewed in its entirety at this link:  https://oig.hhs.gov/oei/reports/oei-02-16-00570.pdf
[6]  Cf. Ben Winslow, “Teen accused of helping friend commit suicide could face trial for murder,” The Salt Lake Tribune, 10/12/17 (The defendant “bought the rope, tied the noose and picked the tree”), available at https://www.aol.com/article/news/2017/10/12/teen-accused-of-helping-friend-commit-suicide-could-face-trial-for-murder/23241619. See also The American Medical Association (AMA) Code of Medical Ethics, Opinion 5.7 (defining physician-assisted suicide). Attached hereto at A-37.
[8]  Id., Opinion 5.8, “Euthanasia,” attached at A-37, lower half of page.
[9]  “Mercy killing” - The Free Legal Dictionary, attached hereto at A-38.
[10]  See examples, attached at A-39 to A-41.
[11]  See footnote 5, supra
[12]  Id., attached hereto at A-25.
[13]  Id., attached hereto at A-30.
[14]  Id., attached hereto at A-23.
[15]  Id.
[16]  Id., attached hereto at A-23.
[17]  Id., at A-43
[18]  See article excerpts attached hereto at A-45 to A-47.
[19]  See bill, attached hereto at A-6, A-8 & A-17.
[20]  See e.g., Margaret Dore, "Preventing Abuse and Exploitation: A Personal Shift in Focus. An Article About Guardianship, Elder Abuse and Assisted Suicide,” ABA Senior Lawyers Division Newsletter, Vol. 25, No. 4, Winter 2014, available at http://www.margaretdore.org/p/by-margaret-k.html
[21]  See bill, attached hereto at A-5 to A-19.
[22]  The bill, at A-18, states:
The Director shall consult with appropriate professional societies, hospice and palliative care stakeholders, and relevant patient advocate organizations with respect to palliative care, psychosocial care, and complex chronic illness with respect to the following: ...
“(3) A definition of the term ‘serious or life-threatening illness’ for purposes of this section.”
[23]  The bill, at A-6.
[24]  See portfolio excerpt, attached hereto at A-23)
[25]  The bill, attached hereto at A-16.
[26]  The bill, at A-18, states:
REQUIRED PUBLICATION.—The information and materials required to be disseminated under paragraph (1) and any information disseminated under paragraph (2) shall be posted on the Internet websites of relevant Federal agencies and Departments, including the Agency for Healthcare Research and Quality, the Centers for Medicare & Medicaid Services, the Administration on Aging, the Centers for Disease Control and Prevention, and the Department of Veterans Affairs.
[27]  https://www.law.cornell.edu/cfr/text/42/418.22
[28]  See bill in its entirety, attached hereto at A-5 to A-19.
[29]  The bill at A-6.