Advance Directives: Let's Make a Law

One of healthcare's most prominent CEOs has a great idea for cutting healthcare costs—forcing Medicare recipients to complete a living will and medical power of attorney as a condition of receiving benefits. Unfortunately, implementing common sense measures like this is among the things Congress is worst at.

All right, I'll admit it. I've been avoiding writing this column for weeks.

My thought: As soon as I've done my own advance directive, I can actually write this thing and advocate it. Until I do, I can't write the column.

The result: Life got in the way and I've been sitting on a great column for weeks.

I've been avoiding it for the same reasons most people don't write advance directives for themselves—they don't like to think about their own ultimate demise.

That's unfortunate, but entirely understandable. I'm extremely biased, of course, but I believe myself to be one of the more practical and common-sense people I've ever met (I think my wife agrees, in most respects).

But that's never filtered down to advance directives, and the fact that this column is intended to promote them, and in fact, encourage their enshrinement into law, means I'd better not be a hypocrite about it. Let me just say that the allure of a slam-dunk column provided powerful motivation, and the fact that you're reading about it now means I have done my advance directive.

I should've done it six years ago, when my wife, pregnant with twins, decided it would be a good idea for her to have one. Typically, she followed through. She gently pressured me to do one too, but I never did, and she never pushed too hard. I suppose I'm like most folks. I didn't like talking about it with her then, and I don't like thinking about it for myself now, and hey, isn't there a baseball game on?

So I've run out of excuses. All mine needs now is the signature of two witnesses and my wife.

Find your own state-specific advance directive form, and encourage everyone you know to do so as well.  It's easy. But hard. And that's the problem.

Make It a Medicare Requirement
Banner Health CEO Peter Fine says we, as a nation, should make completing a living will and medical power of attorney a part of the Medicare application process. His reasoning:

• It would likely make a big dent in healthcare costs
• It doesn't take long
• It will help significantly improve quality of life, peace of mind, and dignity for families in time of stress

"Costs would be reduced significantly if you forced every Medicare enrollee to have a healthcare power of attorney or living will and for them to produce this document at enrollment," Fine says. "Having gone through this with my own mother, both my wife and I have living wills, and our kids have copies so in a stressful time, they know exactly what to do."

As we all know, we have a collective healthcare cost problem in this country that provides plenty of fodder for our stories and plenty of challenges for the leaders who run healthcare organizations.

Fine brought up his idea with me a few weeks ago during an interview for an otherwise unrelated story on healthcare prices. A cancer survivor himself, Fine knows from running Banner Health that many of the problems with cost in healthcare happen in the last year of life. In 2006, 25.1% of Medicare expenditures went to patients for care in the last year of life, a number that has not changed significantly since at least 1978.  

With advance directives required as a condition of participating in Medicare or even Medicaid, it's likely that many patients and their families would refuse some of this care, and thus, those decisions should have a pronounced effect on healthcare spending.

And for those of you who see "death panels" in this argument, don't even go there.

The beauty of an advance directive is that it lets you, the patient, through your agent, determine how far to go to prolong your life. Nobody else is making those decisions. You can fill out an advance directive that asks caregivers to use all tools available even if there is little to no hope of recovery. That's still your right, you're just being forced to make those choices while you are still able. Because when you aren't able, those choices default to using all those expensive tools.

If you don't have an advance directive, and the latest information I could find shows that less than 50% of even severely or terminally ill patients have one, you're effectively requiring your clinical caregivers to use every means available to prolong your life, even if such treatments are exactly what you do not want.

The only way to even hope that your wishes are followed is to complete one of these simple forms. Of course, that doesn't guarantee you won't be overtreated (advance directives helped make end-of-life decisions in less than half of the cases where a directive existed) but it helps.

Taming an "Insurmountable" Problem
Fine argues that healthcare leaders, lawmakers and policymakers tend to look at solutions that are intended to fix an insurmountable problem. 

"We tend to look at insurmountable problems like fixing the healthcare system," he says. "That's insurmountable. But I wonder how healthcare would be viewed as a problem to be fixed if we just focused on patients who are 50 or above?"

Fine says he came to the conclusion that living wills would make a significant impact on healthcare affordability through Banner's participation in the Center for Medicare & Medicaid Services' Pioneer ACO program. While many organizations dropped out of the program after the first year, Banner did well and remained in the program for a second year.

Rather than focus interventions on the entire 50,000 Medicare beneficiaries in Banner's Pioneer ACO, leadership focused on what it saw as the problem population, the 5% of that population that used the most healthcare services.

"We were one of the ones who did pretty well," Fine says about Banner's Pioneer ACO results. "That could be dumb luck or focusing on the 5% of the population who are the greatest drivers of costs."

Fine says big strides can be made through this simple requirement, though he acknowledged in an opinion piece recently in the Arizona Republic that making it so could develop into a hot-button political issue—see my note about "death panels," above.

But it's not, he argues in a call to action for his fellow hospital and health system leaders:

"Of course, there might be concern among some about the appropriateness of government involvement in making this intensely personal matter a requirement of applying for Medicare benefits. I would ask these people to consider the fact that the completion of these documents preserves and strengthens individual choice, keeps the highly personal discussion about dying within the privacy of the family and has the real potential to save tens of billions of dollars," Fine says. "This issue plays out in our institutions. We own it. Let's start the dialogue with our elected leaders to fix the problem."

If it took a column deadline to force me to take a hard look at my own mortality.

It'll likely take this proposed requirement to make the two thirds of Americans who don't have an advance directive pay attention. Unfortunately, things like this are ripe for political hay to be made, and as a result, implementing such a common sense requirement is among the things Congress is worst at.

Let's hope the urgency of the healthcare cost problem might surmount those potential hurdles, and get this done.  Fine could certainly use other healthcare leaders' support.