AAPS Comments Opposing CPT Codes for End-of-Life Discussions

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Objections by AAPS to Proposed CPT codes 99497 and 99498

Re: CMS–1631–P

The Association of American Physicians and Surgeons (AAPS), a non-profit national organization of physicians founded in 1943, defends the patient-physician relationship and the practice of ethical medicine. Our motto is “omnia pro aegroto,” which means “all for the patient.” AAPS has commented on proposed regulations in the past. The Privacy Rule, for example, expressly relied upon comments submitted by AAPS. See Federal Register, vol. 65, no. 250 (Dec. 28, 2000), at 82468. Also, AAPS’s amicus briefs have been cited by Justices of the U.S. Supreme Court.

AAPS strongly objects to the proposed CPT codes 99497 and 99498, as set forth at Federal Register, vol. 80, no. 135 (July 15, 2015), at 41773 (CMS-1631-P). Payments on these new proposed codes would create financial incentives to persuade patients to consent to the denial of care. This would establish an inducement for practitioners to talk patients out of medical care to which they are entitled. This financial incentive would create an unethical conflict-of-interest for practitioners.

Imagine government paying bonuses to police officers who obtain waivers by suspects of their Miranda rights. Such bonuses would be improper. Or, even closer to the proposal here due to the fiduciary relationship, imagine government paying bonuses to court-appointed defense attorneys who persuade their clients to waive their right to a jury trial. That would obviously be unethical.

Yet the same unethical incentive is proposed in the form of these new CPT codes, whereby practitioners would be compensated for exploiting their position of trust to persuade patients to forgo care near the end of their lives. The proposed regulation asks for comments on “what type of incentives this proposal creates.” Id. The answer is, “an unethical incentive.” The proposal would use Medicare payments to drive a wedge between the patient and physician, creating distrust by the patient of his physician, and failing to improve medical care in any way.

CPT codes 99497 and 99498 would compensate a practitioner only if he obtains a completed form, which may require representations by or on behalf of the patients. The lack of detail in the proposed regulation about the contents of the form is objectionable. If the form contains any waivers by patients concerning medical care, then it is improper to pay a practitioner money to persuade a patient to waive his rights. Indeed, it seems likely that the form could be used to his detriment later in order to deny care, and it is inappropriate to pay a practitioner to obtain waivers from patients.

Patients should be able to trust their treating physicians. It is unethical to create a commission-like reward system for physicians and others to persuade patients to decline medical care. Physicians and other caregivers should not be rewarded financially for talking patients out of receiving medical care.

There is no limit on the Medicare patient’s age or condition for the use of these codes. Healthy, relatively young patients in the Medicare program could be repeatedly subjected to extended badgering, in order to persuade them to consent to an end-of-life protocol. Healthy patients years away from the end of their lives may change their minds before ever confronting an end-of-life scenario.

It is further objectionable how the new codes would reimburse practitioners other than physicians to obtain consent from patients to sign forms that result in a withholding or denial of care to them. Creating a financial incentive to use non-physicians for this life-critical task is improper. Without having a discussion with a physician, the patient or his family may not fully understand to what he is agreeing. Physicians should be directing these discussions, not practitioners other than physicians.

Also, the financial incentive created by the new codes could cause hospitals to coerce their employees, physician and non-physician, to attempt repeatedly to obtain waivers from patients for medical care, in order to garner the new reimbursements. It would be better if these reimbursements, if allowed at all, were limited to non-employees of hospitals.

Furthermore, there is apparently no limit to the drain on Medicare from repeated use of the 99498 code, which would pay for each additional 30 minutes of time by a physician or non-physician attempting to induce a patient, or his family, to consent to the withholding of care and even food or water. Discussion becomes harassment at some point, and Medicare should not be paying caregivers to harass patients. CPT code 99498 is unnecessary in paying for additional 30-minute segments for attempts to persuade patients or their families of something they would prefer not to do.

The CPT codes 99497 and 99498 lack valid statutory basis, as they spend Medicare funds on documentation rather than on providing medical care.

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