Avoiding Futile Care and Reducing Medicare Costs

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If we in the U.S. ever hope to get a grip on Medicare costs, our society will first have to navigate a steep learning curve. That’s the lesson to take from three recent publications. 

Despite the fact that Medicare is expected to represent 18% of the federal budget in 2020 (up from 15% in 2010), and that the Medicare Part A Trust Fund is projected to have insufficient funds to cover all hospital bills starting in 2024, polling guru Robert Blendon reported that 47% of the public do not see Medicare as a large budget item, and only 31% see it as a major contributor to the federal deficit!

Here are some of the key findings from Blendon’s study:

  • Respondents believe that Medicare recipients receive benefits worth about the same (27%) or less (41%) than what they’ve paid in. In reality, beneficiaries on average pay 1$ for every 3$ of benefits.
  • By a 3-to-1 ratio, the public believes the bigger problem under Medicare is people not getting the care they need, as opposed to receiving unnecessary care. This is despite a recent report from ICU physicians discussed by Muriel Gillick in a recent post that among their Medicare patients 15% received care that was “futile” and 12% received care that was “probably futile.”
  • Although administrative costs for Medicare are substantially lower than for private insurance, only 15% believe that Medicare is better run.
  • Every age group prefers physicians to be paid on a fee-for-service basis. The 18-to-29 year olds are the most open to capitation payment (42%).
  • With increasing age, opinions about Medicare become progressively more favorable: 18-to-29 year olds (61%); 30-to-49 year olds (71%); 50-to-64 year olds (75%); and, for those over 65 (88%).

Finally, a survey done by The Conversation Project – an admirable organization “dedicated to helping people talk about their wishes for end-of-life-care” – found that while 90% of us believe we should have these conversations with those we’re close to, only 30% of us have actually done it.

Taken together, the three publications define a three-pronged learning task that must be accomplished for Medicare to reduce overtreatment and help contain costs. We seniors need to spread the word that 1) contrary to the views of almost half of our population, Medicare is indeed a major contributor to the financial problems of the working public, 2) we seniors receive a substantial amount of ICU care that medical experts believe is “futile,” and 3) most of us probably don’t want that “futile” care, but our families and friends won’t speak up for us if we haven’t had the discussions of our values for end-of-life-case that The Conversation Project encourages.

 James Sabin, M.D., 74, is an organizer of Over 65, a clinical professor of psychiatry at Harvard Medical School, and a Fellow of the Hastings Center.

26 Responses to “Avoiding Futile Care and Reducing Medicare Costs”

  1. Gail Abramson

    It’s not just futile care. Many younger seniors have multiple tests that may not be necessary because “Medicare will pay for it”. I hear this time & again from friends. There’s no sense of responsibility to the system.

  2. Jim Sabin

    Dear Gail –
    I wish I hadn’t heard exactly what you report, but, alas, I have. I think you hit the nail on the head when you attribute the lack of responsibility to the system. Many factors go into overprescribing tests and other interventions: physician fear of malpractice litigation; our “test-crazy” public values; the way our political culture condemns consideration of value and “worthwhileness” as evil rationing; and more. That’s why I think a combination of bold leadership (currently lacking) and societal learning will be required to get a better grip on our runaway health system.
    Best
    Jim

  3. Stephen Johnston

    Insightful and timely post, thanks. We at Aging2.0 are working on developing a fourth area of activity – namely generating innovative technology and design solutions that have the power to both reduce costs and improve the quality of life for older adults around the world. Will share this post on our newsletter, thanks. Stephen

  4. Jim Seeber, Ph.D.

    Let’s get fully candid here. The call for unneeded tests and exams is driven in large part by a litiginous society where lawyers prey on seniors to sue, SUE, SUE and docs are running terrified of being the victims of friviolous lawsuits which cost $ and build BAD reputations for institutions and persons. Cutting the litiginous apron strings to lawyers and encouraging docs to be more candid and less patronizing for seniors will be HUGE steps ahead. [ JOKE: What do you call 6 lawyers down a well? Answer: a GOOD START.]

    • Alastair Macdonald

      My first ever job in a hospital was as an intern in King’s County , Brooklyn. Not long after I started (in 1968)I saw a bumper sticker which completely echoed your sentiments completely. “help your local lawyer, send your kid to medical school”

      Much of this unneeded excessive and damaging practice is embodied on the concept the Howard Brody calls “waste avoidance” Not only is the pratice wasteful but false positive tests can lead down the path to further an unnecessary testing.

      In New Zealand, where I currently practice, the phenomenon of unnecessary testing is certainly not unknown. In the US it is an art form.

      The US has much to be proud of in terms of being the “best of the best” in centres of excellence. I had the pleasure of being a resident at Barnes hospital in St Louis. In some; as yet undetermined, way, the US has to get to grips with the excessive tesing that is performed.

      While I am on my hobby horse, how come when up to 20% of people die in the ICU? This is remarkable when I compare the stats in my own country ( New Zealand) where we have only 20% the ICU beds ( per capita basis) and less than 2% of folk die in the ICU.

      Something is sadly amiss with decision makers!

      Thanks for the opportunity to comment on thic valuable blog.

      Kind regards

      Alastair Macdonald

      • Alastair Macdonald

        Apologies for the slighty inacccurate / misleading statement that I previously quoted. I pressed the send button too quickly!! Perhaps an age related phenomenon!!

        The statement should have read:

        1) The number of ICU beds per 100000 population is 4.8/100,000 population in New Zealand. and 20/100,000 in the US. (Lancet Volume 376, Issue 9749, 16–22 October 2010, Pages 1339–1346)

        2) The percentage of deaths in the US that occur in the ICU is 20% !!

        “End-of-Life Care in the Intensive Care Unit”, American Journal of Respiratory and Critical Care Medicine, Vol. 186, No. 7 (2012), pp. 587-592.

        3) I do not have data on the the place of death in a New Zealand setting. However given the small percentage of ICU beds in New Zealand, the references that I have would strongly suggest that many less New Zealanders die in the ICU than do so in the US.

  5. Margy Chapman

    Let’s not forget that many seniors are of the age where upbringing and manners made questioning a doctor not an option. This leads to duplicate testing, care they don’t want and fear of not doing what the doctor orders.

  6. Carol Eblen

    I believe all of the admirable goals of your organization would have been achievable much earlier when the 1991 Patient Self Determination Act was passed into law IF “treating physicians” (especially the specialists) had been placed under the provisions of the 1991 PSDA. But, of course, the AMA lobbied The Congress and were excluded from the provisions of the 1991 PSDA. They even brought up “rationing” as a reason to be excluded even though the 1991 PSDA was all about self-rationing of treatment by “educated” elderly Medicare/Medicaid patients who would opt/elect to refuse life-saving/life/extending treatments after a terminal prognosis in order to shorten their suffering unto death.

    Even though physicians remained responsible for the educated diagnosis and educated prognosis and for seeking informed consent for any treatment, they believe that they have no legal duty to have end-of-life discussions and inform patients that maybe doing “nothing” and then transitioning to Hospice/palliative care, as and when needed, seems to be the wisest option based on the physician’s prognosis and KNOWN neutral statistics prepared by Academic Researchers who specialize in neutral prognostics —big data that will NOW be used in the IPAB context.

    Incorporated physician practices and clinics have been free to over treat elderly/disabled on Medicare/Medicaid for all of these past 22 years because they weren’t placed under the PSDA and because of the Federal Age Discrimination Statute that meant that physicians/clinics could knowingly over treat Medicare patients for profit because they would be reimbursed up to the Diagnosis Related Group Cap (DRG) for the cancer/disease being treated no matter the age and co-morbidities of the elderly/disabled patients.

    The vision and goals of the 1991 PSDA were to prevent over treatment of the elderly and to save $$$$ for Medicare and their private partners, Big Insurance, when the elderly would “self ration” and freely elect to “do nothing” and transition to Palliative Care/transition to the Hospice entitlement, as and when it became medically necessary. Sometimes the cruel over treatment of the elderly for profit shortens the lives of the elderly when they have multiple hospitalizations, etc.. because of the complications of the aggressive treatment. It was the view of the 1991 PSDA that elderly patients would volunteer to die outside of expensive ICU and CCU in their own home or in their nursing home residence on the Hospice entitlement.

    Apparently, the federal government, Medicare, and the Congress thought that Big Medicine would cooperate with the goals of the 1991 PSDA and that the states would implement the goals, but, of course, they haven’t. Recently, however, six or seven States have passed “right to know” laws that somewhat compel treating physicians to seek informed consent from patients in the outpatient setting for one standard of care or the other, or be subject to fine or private law suits.

    Also, ten years or more ago, Medicare and their private partners, Big Insurance, started to implement reimbursement protocols in Administrative law and Rule that punish Hospitals/physicians for non beneficial over treatment of elderly Medicare/Medicaid patients, errors, and the complications thereof, and if the patient exceeds the DRG Cap for the cancer/disease being treated. The patients are not made aware of this and have no idea that there are in a hostile environment because they are “charity” patients for the hospital.

    As a direct reaction to this MESS, physicians/hospitals are inappropriately/illegally often extrapolating unilateral, covert, and overt (default) DNR Code Status into the charts of elderly patients to limit treatments that they KNOW will not be reimbursed by CMS and the private insurers. There are no procedural protections against this practice that most often goes undiscovered because when old people die in the hospital, it appears to be in the natural course of events. Most Unilateral DNRs go undiscovered and when discovered, are not considered a Civil Rights Violation under the 1991 PSDA.

    Hopefully, the prestigious sponsors of this “Over 65 Blog” will see the value in dealing more honestly with The American People in the future. Hopefully, you will see the value in strengthening the goal of “self determination” as envisioned in the 1991 PSDA and will urge the Congress to clarify the provisions of this law both as to the Choice to die and the Choice to Live.

    Hopefully, this organization will urge The Congress or the Executive to use the mandate of the 1991 to mandate that treating physicians SEEK informed consent in both the outpatient and the inpatient setting for one of the two legal standards of care created by the Congress and Medicare and reimbursed out of the people’s Medicare Purse.

  7. Faye Girsh

    I would like to see a survey of this type of patient — facing a disabling and permanent illness(es) and care that could produce more suffering —
    if they would consider as a legitimate option the choice of an assisted peaceful death at the time of their choosing. For many it is a better choice than the ICU and even palliative and hospice care.

  8. Carol Eblen

    Remember that elderly late-stage patients on Medicare/Medicaid can only make educated choices about end- of- life options available under the Medicare/Medicaid law and insuranc when they are educated by the treating physician who is responsible for the educated prognoses for the diseases for which the elderly/disabled patients are being treated.

    Unfortunately, many specialists in the OUTPATIENT setting who are using chemo and radiation, etc.. are not seeking informed consent for curative care as opposed to Palliative Care/transition to Hospice. The National Library of Medicine, part of the National Institutes of Health, published an article in which it was said that the majority of patients getting palliative care in the outpatient setting believe that they are getting curative care. Obviously, these patients just don’t know they are going to die from their cancer or other disease because the physician didn’t seek informed consent for the palliative care as opposed to curative care.

  9. Jim Sabin

    Dear commentators –

    Thank you for the varied and valuable comments. I’ll respond sequentially:
    Stephen – Aging2.0’s focus on adaptive technologies for the elderly is a crucial contribution. FYI, we’ll be publishing a post on “social/emotional robots” this coming week. After visiting your website I signed up for the Aging2.0 newsletter.

    Jim – I agree that physicians are “terrified” of lawsuits and that fear of litigation is a major driver of overtesting. A quixotic yearning for certainty is another driver. In the background, lack of clarity about a patient’s goals is also a major factor. When a person’s goals are comfort, not prolongation of life, most tests become irrelevant.

    Alastair – It’s always great to get your perspective from New Zealand! Sadly, you’re correct that unnecessary testing is an “art form” in the US. In the 1990s I had the opportunity to spend a full day with each of three outstanding GPs in London and observed how much more they used “tincture of time” in situations where US physicians might well have ordered a battery of unneeded tests. Languishing in an ICU instead of receiving hospice care is part of the same over-interventionist US medical culture.

    Margy – your point about reluctance the elderly may have about questioning physicians is very valuable. When I was growing up the phrase “doctor’s orders” was commonly used. We put physicians on a pedestal. The reluctance to question will probably be less common among the elderly as the baby boomers mover become over 65ers.

    Carol – Thank you for the historical material about the Patient Self Determination Act. I’m not aware of the stand the AMA took back then, but I’m currently a member of the AMA Council on Ethical and Judicial Affairs, and it’s clear that at present the AMA strongly supports the values associated with “self determination.” We at Over 65 share your strong endorsement of “self determination” and “self rationing.” Culture changes slowly, but the values you espouse are strongly emphasized in medical school curricula now.

    Faye – You’re probably right that at least some of the patients receiving care the intensivists regarded as futile may well have chosen assistance in dying if that option had been available to them, and almost certainly many would have chosen palliative care in preference to what I’ve heard residents refer to as “flogging” in the ICU. From experience in Oregon we know that availability of the assistance in dying option leads to more rather than less palliative care and hospice. When individuals and families reflect on their values in an open manner, less “futile” care is done.

    Again – thank you for your comments!

    Best

    Jim

  10. John Kirsch

    In order to evaluate the economic implications of the survey of ICU physicians and the implied need for Medicare reform, I would like to know: (a) What proportion of all Medicare payments go toward ICU treatments? (b) What do physicians in other specialties (especially primary care and gerontology) say in answer to the same question, namely, how much of their Medicare-paid treatment is “futile” or “probably futile”? (c) What ICU treatments are most often considered “futile” and “probably futile”? (d) What does “futility” mean? (e.g., that the patients died within x days of the supposedly “futile” treatment?)

  11. Carol Eblen

    We see that “futility” when attempted to be defined by the courts is defined very narrowly in the interests of protecting the autonomy of the patient or the patient’s proxy or surrogate. The procedure itself isn’t “futile” but the application of the life-extending/life-saving procedure is seen to be futile through the eyes of the physician(s)/hospitals who often have a conflict of interest when fiscal futility and medical futility exist in the same patient. This is why Hospital Ethics Committees do not provide a neutral due-process solution.

    Medical futility and fiscal futility problems were around before the 1991 Patient Self Determination Act was passed into law. The vision of the law was that elderly/disabled Medicare/Medicaid patients with short life expectancies would freely elect or volunteer to refuse life-saving/extending treatments in order to shorten their suffering unto certain death. The 1991 PSDA gives patients this right whether or not the medical procedure is deemed medically futile by the physician/hospital under state law. The intent of the PSDA was to allow the patient to determine if a life-extending/life-saving procedure is “futile” for the patient and to refuse this treatment with an advanced directive under the provisions of the PSDA.

    The problem is that the PSDA is federal law that the federal government intended the States to implement but the states have failed to clearly define The Right to Die AND the Right to Live in keeping with the public policy goals of the 1991 PSDA, i.e. to prevent over treatment of the elderly/disabled Medicare/Medicaid patients with life-threatening conditions and to save money for Medicare/Medicaid when elderly patients would die outside of expensive ICU and CCU in their own home or Nursing Home Residence under the Hospice Entitlement.

    Texas appears to be the only State that has passed law that attempts to define “futility” through some kind of due-process procedure that isn’t in the court, but there has been much criticism as to the fairness of the law.

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  12. Jim Sabin

    Dear John and Carol –

    Thank you for your comments!

    John – In 2004 Medicare spent $32.3 billion on ICU care. That has probably doubled since then. The concept of “futility” is no longer used very much in ethical discussion except in a very loose manner, since the assessment of futility will vary tremendously depending on who makes the judgment. What the physician sees as “futile” may be seen as “crucial” by the patient and family. The opposite is also true – the physician may regard another round of chemotherapy as “crucial” but the patient’s wishes are for comfort care, not aggressive interventions. To make the term “futile” useful we have to specify “futile in relation to achieving a) which goals held by b) which people?”

    Carol – You again raise a number of interesting points. Your’re quite right about conflict of interest when financial responsibility and judgments about “futility” or “medical necessity” track together. George Bernard Shaw nailed this issue in his comment about the danger of “giving a surgeon a pecuniary interest in cutting off your leg”!

    I don’t know if you meant to use the terms “Right to Die” and “Right to Live” in parallel. From the perspective of health policy I’d emphasize their difference. “Right to Die” usually refers to the individual’s right to refuse interventions, even if doing so will lead to death. Individuals certainly have a right to do all they can (within the law) to sustain their lives, but we don’t have a right to claim all of the necessary resources from others.

    Best

    Jim

    • Carol Eblen

      Jim: You say “we don’t have a right to claim all the necessary resources from others” but you say “individuals certainly have a right to do all they can (within the law) to sustain their lives.”

      Because this is an “over 65 blog” I assume we are talking about Medicare/Medicaid insurance coverage when we are talking about “medical futility” and rights to treatment, etc.. under current Medicare/Medicaid law.

      There is no way, in my opinion, that “medical futility” can be separated from “fiscal futility” in our current “for profit” health care system, Medicare/Medicaid are “social” programs paid for out of the people’s Medicare purse. I don’t think that there will ever be a legal one-size-fits -all definition of “medical futility” defined by the courts. Do you? Certainly, over treatment for the profit motive, is another form of “medical futility.”

      But! haven’t CMS and their partners, the private insurers, already defined “medical futility” or “fiscal futility” when reimbursement protocols of CMS and the private insurers refuse to reimburse hospitals/physicians for non beneficial over treatment, mistakes/errors and the complications, thereof.

      Even a fall of a patient within the Hospital is considered a “medical error” and is not reimbursed. Think of the unintended consequences for elderly patients on Medicare/Medicaid who are hospitalized and become charity patients and don’t even know that the hospital isn’t being reimbursed for their treatment. They think their Medicare or Medicaid insurance and the law will protect them from having their lives shortened because of fiscal considerations.

      Do the Bio-ethicists have any obligation to inform the elderly on Medicare/Medicaid that “medical futility” and “fiscal futility” considerations are often involved in the treatment of elderly/disabled patients with life-threatening cancers and diseases?

    • Taylor

      I read some of the comments above and would like to just get a straight forward answer on what people think is futile treatment and if they agree with it or not? Do you believe that we should be doing anything we can to persevere a patients life even if it means no future benefit or should we stop treatments when we know that there will be no improvements, during or after treatment is withdrawn. Thank You.

  13. Jim Sabin

    Dear Carol

    I think it’s important to distinguish between judgments about the effectiveness of medical interventions and judgments about whether collective funds, whether public like Medicare, or private like commercial insurance, should pay for an intervention. There are more interventions that physicians and patients would like to make use of than even as wealthy a country as the US is prepared to pay for. As difficult as it is for societies to set limits, it’s something that must be done. We hope that readers of Over65, and more broadly, members of the over 65 population, will take an active role in helping our society come to grips with the need to set limits in health care in a way that is clinically informed, ethically justifiable, and potentially socially acceptable.

    Thank you for your interest in these issues!

    Best

    Jim

    • Carol Eblen

      I agree with your comments. Of course, we must set limits but the devil is in the details of setting the limits, isn’t it? Who sets the limits? and based on what criteria? approved by
      whom?

      Hasn’t Medicare, the “public” social program, been invaded by “private” Big Insurance in the form of “advantage” and the “gap” policies?

      Hasn’t “private” Big Insurance influenced “public” Medicare law in their own interests and is this in the best interests of Medicare recipients who have paid into Medicare all of their working lives under existing law? Is the Public program being managed by the Congress and the Executive in the interests of Medicare patients or in the interests of private insurance?

      Isn’t it the “private Sector” who is responsible for most of the growth of bio-ethics as a “discipline” in our society and does this present a “conflict of interest” for the bio-ethics community who has never warned in any certain terms, to my knowledge, about the danger to elderly/disabled Medicare patients of the medical futility-fiscal-futility connection in the real world of US Medicine?

      How can I, who am on Medicare and Tricare for Life Insurance trust that The Hastings Center is working for the public good if you have made no effort to investigate or warn about the growing covert and overt misuse/misapplication of DNR Hospital Code Status in the hospital charts of elderly Medicare patients since 1991 that permits hospitals/physicians to shorten the lives of elderly patients for whom they KNOW there will be no further reimbursement from Medicare and the private insurers because of non -beneficial over treatment, mistake/error, or the complications thereof?

  14. Ted Marmor

    Jim, I am writing from Accra, Ghana, about to return to the US after a month away. I was delighted to see this active exchange about Medicare, its costs, the concern about ‘futile’ or unwanted care as a contributor to unwanted costs, and the like. Can I add at this late date some comments from what seems a lifetime of concern about medical costs, rates of inflation, and the like.

    First, Blendon’s commentary about the lack of accurate information about Medicare’s costs and related themes could be extended to EVERY area of public and private policy. The noise of American public life makes informed citizens an aspiration, not a fact. But there is nothing special about Medicare in this regard and Blendon’s commentary misses that. Furthermore, in no industrial democracy is the public’s opinion about costs the key to their success or failure.
    That links to the second point: America’s medical care has lots of areas of concern, and that is obvious in the comments about unwanted care, difficulty in avoiding futile care, and so on. But, it is important for us to acknowledge that the difference between the US’s costs and those of t he rest of t he OECD world is in prices, not volume. Average prices X volume of services is the medical care budget. The rest of our competitors begin with a budget, which helps to explain why we spend 40% or more percapita on medical care; we discover out expenditures ex post rather than live with a budget ex ante. There is much more to say about that topic, some of which is in print in Politics, Health and Health Care, Yale 2012.
    best from afar, Ted

  15. Jim Sabin

    Hi Ted –

    It’s great to hear from you. Thanks for pitching in all the way from Ghana!

    You’ve been a leader in showing how international experience points to the importance of having an overall budget for health care. Unfortunately, in our current political culture, citing evidence from outside of the US is frowned upon. Don Berwick was savaged in his CMS role for having praised the National Health Service.

    As of 2013, the emergence of Accountable Care Organizations is our main opportunity to convince ourselves that having budgets for the care of populations is the way our system should evolve. Most of the discussion of how ACOs could make a difference focuses on coordination, evidence based practice, and prevention. But it’s not going to take long for ACOs to focus on prices as well. Multiple ACOs are not anywhere near as powerful as a single payer would be with regard to prices, but the ACO movement has the potential of being significantly better than the status quo.

    The book you and Rudolf Klein published in 2012 is rather pricey, but I found a good clean used copy on Amazon and look forward to reading it.

    Best

    Jim

    • Ted Marmor

      Thanks for the speedy reply Jim. I cannot fail to note that the ACA is all we have for 2013, though I wonder sometimes whether the old adage applies: not a good idea to do the wrong thing right. But that is for a longer comment. For the moment, I would to emphasize that there are many reforms well worth doing for reasons other than great imagined savings.

      Apologies for Yale’s absurd pricing of the Klein-Marmor book. Finally, they have agreed to a paperback version sometime soon. I am glad you found a more reasonable option!

  16. Taylor

    I read some of the comments above and would like to just get a straight forward answer on what people think is futile treatment and if they agree with it or not? Do you believe that we should be doing anything we can to persevere a patients life even if it means no future benefit or should we stop treatments when we know that there will be no improvements, during or after treatment is withdrawn. Thank You.

  17. Sarah - summitmedicalcasper.com

    What a resourceful information Mr. Sabin. Health care still costs too much. I think it needs to shrink about half of that amount. I think with lower cost, people will start to go to doctor for ‘prevention’ rather than ‘curing’ deseases.

    Sarah – summitmedicalcasper.com