Updated on: December 6, 2016

End of Life: Who Has the Last Word?

Original story posted on: October 1, 2014

On August 30, the New York Times featured an article entitled “Coverage for End-of-Life Talks Gaining Ground,” that asserted that “Medicare may begin covering end-of-life discussions.” The article explained that despite the outcry about death panels in the 2008 presidential election, Medicare was considering extending coverage to discussions about end-of-life care. But these discussions, like any medically appropriate discussion, is already covered by Medicare. The premise of the article was flawed.

The American Medical Association is proposing new codes for “end-of-life counselling.” The article quoted physicians stating that if there was coverage for this counselling, they might have a visit a day that would qualify. According to the article, many physicians have end-of-life discussions for free or “shoehorn them into other conversations.”

Since then, articles have been popping up in a variety of sources, asserting that the 2015 Medicare fee schedule will determine whether these services are covered or not. Medical Economics reported that there are two proposed codes, the first is a 30-minute code for advanced care planning and the second is a 15-minute add-on code for additional time spent.

The articles are written as if the time spent by a medical professional counselling a patient about end-of-life issues can’t be covered by Medicare. But it IS covered. Discussions about end-of-life care, like any other discussion with a physician about medical care, can be covered under existing “Evaluation and Management” (E&M) codes. Those codes specifically cover “counselling… consistent with the nature of the problem(s) and the patient’s and/or family’s needs.” Whenever counselling constitutes more than half of a visit, it is completely appropriate to code on the basis of time, and there is no reason that end-of-life counselling is different from a wide range of other counselling that physicians provide. 

There is probably one advantage to having specific codes for coverage. Right now, if anyone other than the person whose name is on the claim were to provide the counselling, time spent on the topic is not covered, because instruction from Medicare suggests that a physician you should not bill Medicare on the basis of time spent by a physician extender. Just to be clear: If a Nurse Practitioner, Physician Assistant, or Clinical Nurse Specialist is billing for the care, she or he can bill on the basis of time. But you shouldn’t combine the time spent by a physician and nurse, NP, or PA into a time-based E&M code. That may be permitted under a new code. But the assertion that counselling is not currently covered is simply wrong. This is a great example of why you need to be a bit skeptical of things you read, even when they appear in well-regarded publications. 

There is an area where Medicare coverage is notably deficient: It does not cover phone calls. If the patient is unable or unwilling to come to the office, and the physician accommodates the patient by counselling over the phone, the physician’s effort is completely uncompensated. 

I hope that the AMA will set a goal of obtaining coverage for calls so medical professionals are properly reimbursed for that valuable, convenient service. 

David M. Glaser, Esq.

David M. Glaser, Esq., is a shareholder in Fredrikson & Byron’s Health Law Group. David helps clinics, hospitals, and other healthcare entities negotiate the maze of healthcare regulations, providing advice about risk management, reimbursement, and business planning issues. He has considerable experience in healthcare regulation and litigation, including compliance, criminal and civil fraud investigations, and reimbursement disputes. David’s goal is to explain the government’s enforcement position and to analyze whether the law supports this position. David is a popular panelist on Monitor Mondays and a member of the RACmonitor editorial board.


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