Advance Directives and the Importance of Physician Consultations

Unfortunately, people routinely execute advanced directives and never discuss its important ramifications. I generally advise clients to discuss the DPOA with their physicians but suspect this rarely occurs. Moreover, in those few instances where clients follow this advice, they are likely to encounter difficulty scheduling time with the doctor to obtain this guidance.  However, starting in 2016, the Center for Medicaid and Medicare Services (“CMS”) provided that physicians who provide advance care planning can be compensated under Medicare Part B. Medicare covers services (like lab tests, surgeries, and doctor visits) and supplies (like wheelchairs and walkers) considered medically necessary to treat a disease or condition. Part B covers 2 types of services – (a) services or supplies that are needed to diagnose or treat a medical condition and that meet accepted standards of medical practice; and (b) health care to prevent illness (like the flu) or detect it at an early stage, when treatment is most likely to work best.

The National Academy of Elder Law Attorneys (NAELA) submitted comments for CMS to consider regarding the implementation of these rules. They noted that “NAELA embraces the principle that good health care decision making requires a meaningful, ongoing process of communication among patient, family, and health care provider regarding present and future health care decisions, shaped primarily by the patient’s needs, values, and goals for how the individual wishes to live throughout life and as life’s end approaches.” The Institute of Medicine in a report entitled “Dying in America”, supports this view, finding that open, clear, and respectful communication between health care professional and patient is a precondition for effective advance care planning.  It also is critical to developing a therapeutic relationship and negotiating and carrying out a treatment plan.

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