Democrat regrets language in memo on ‘death panels’ that reignited debate

Rep. Earl Blumenauer (D-Ore.) is distancing himself from a memo sent by his office that urged health reform advocates not to advertise new end-of-life counseling regulations to avoid reviving talk of “death panels.”

The weeks-old memo recommended that end-of-life advocates celebrate a “quiet” victory out of concern that Republican leaders would “use this small provision to perpetuate the ‘death panel’ myth.”

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Blumenauer now says he regrets the letter's secretive language, which has only bolstered conservatives’ claims that the Obama administration tried to sneak the provision in under the radar.

“If I had seen the memo, I would have suggested it be worded differently,” Blumenauer told The Hill.

In the memo, first reported on Dec. 26 by The New York Times, Blumenaeur’s office expressed concern that new attention to end-of-life care planning could doom an end-of-life provision included in a Medicare regulation issued last month.

“Thus far, it seems that no press or blogs have discovered it, but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response,” the memo read. “The longer this goes unnoticed, the better our chances of keeping it.”

The original House healthcare reform bill included a Medicare provision reimbursing doctors for advising patients on end-of-life care, but was dropped from the final bill after some conservatives said it could have led to government-run “death panels.” The fact-checking website Politifact labeled that claim its “lie of the year” in 2009.

A similar provision was included in a 2,000-page Medicare regulation issued Nov. 29, reigniting debate over death panels and sparking accusations that the Obama administration was usurping the will of Congress.

The Wall Street Journal editorial page, for example, compared the regulatory process under the Obama administration to a “black-ops exercise.”

The Nov. 29 regulation contains a pared-down version of the House end-of-life provision that calls on Medicare to reimburse doctors for discussing end-of-life care in annual wellness visits created by Democrats' healthcare reform law. The regulation had escaped public scrutiny until the Dec. 26 Times report.

Blumenauer introduced similar legislation in April 2009, along with three Republican co-sponsors - Reps. Charles Boustany (La.), Geoff Davis (Ky.) and Patrick Tiberi (Ohio). But the provision became a political lightning rod during the highly partisan healthcare reform debate, with Republican leaders - including former Alaska Gov. Sarah Palin and Sen. Chuck Grassley (Iowa) - claiming that end-of-life care planning was part of the Obama administration’s efforts to withhold expensive life-sustaining treatments from the elderly and seriously ill.

The Obama administration defends the new regulation as a continuation of a policy enacted under former President George W. Bush.

A law passed in 2008 said that orientation visits for new Medicare beneficiaries – which were first enacted in 2003 – can include voluntary “end-of-life” planning discussions. The new regulation said that the same end-of-life discussions could also take place during the new annual wellness visits created by the healthcare reform law.

“This was a reasonable thing for the administration to do,” Blumenauer said.

Though some Republicans have portrayed the regulation as a back-door attempt to legislate through regulation, a Democratic health policy consultant said he would be “shocked” if the White House knew in advance that end-of-life consultation was included in the massive regulation.

“Political people in the White House wouldn’t have wanted this to happen” because of the bad political optics, he said. “But they’re not watching the regulations being written.”

The source opined that House Republicans would now make this a prime target for repeal.

“It doesn't help that advocates wanted to keep it quiet,” the source said, “because it's impossible to keep anything quiet in this town.”

Democratic strategist Bill Galston agreed Blumenauer’s office hurt Democrats’ defense of the provision by trying to keep it a secret.

“It was stupid,” Galston told The Hill.

Blumenauer said he expects that some will try to keep the death panel myth alive to score political points, but he doesn’t expect congressional Republicans will make a legislative effort to limit end-of-life care planning. He said they will be too focused on repealing the entire reform law.

“This is a little target,” Blumenauer told The Hill.

If Republicans try to revive death panel claims when they return to Congress next week, Galston said Democrats must be willing to fight back.

“If [Democrats] are not prepared to drive a wedge between reasonable political debate and fantasy-propelled conspiracy theories,” he said, “they don’t deserve to be in the political game.”

Julian Pecquet contributed to this story.