New Medicare Regulation Probably Does Not Pay for Assisted Suicide Discussion

These things can become very complicated—and finding anything in federal law and regulations is increasingly difficult.  (Sometimes, I think they don’t want us to find things.)  But earlier, I cited a Forbes blog which asserted flat-out that the new end of life care discussion authorized payments for discussion of assisted suicide where it is legal and I promised to check it out.

The answer appears to be: Probably not, at least, not yet.  The regulation pays for discussions regarding advance care planning.   The blogger said that meant it included assisted suicide where legal,  But the regulation in question deals with advance care planning  in the context of advance directives, and assisted suicide—as I will discuss below—can’t be dispensed pursuant to advance directives.  From p. 1493 of CMS-1603-FC:

Voluntary advance care planning means, for purposes of this section, verbal or written information regarding the following areas:

(i) An individual’s ability to prepare an advance directive in the case where an injury or illness causes the individual to be unable to make health care decisions.

(ii) whether or not the physician is willing to follow the individual’s wishes as expressed in an advance directive.

Note that the discussions are to involve what can be put in an advance directive and whether the doctor will abide.  Neither Oregon nor Washington law permits assisted suicide via advance directive—which only are invoked if a patient is incompetent, and so should never (if the law is followed) ever be administered to someone receiving surrogate decision making.  Montana is unclear what it does and does not allow.  Hence, since no physician can legally engage in physician prescribed death per patient instruction in an advance directive, it seems to me that at least for now, assisted suicide discussions are not explicitly covered under the new Medicare regulation.

Again, these things are very complicated and I can’t spend the entire day searching the Federal Register.  If anyone has a different view, I would be interested in learning of it.