House GOP investigating 'death panel' regulation

Republicans on a powerful House committee are bringing the so-called "death panel" controversy back to life.

The House Energy and Commerce Committee Republicans are demanding that President Obama’s health department explain why a provision rewarding doctors for end-of-life care consultations was recently tucked into a massive Medicare regulation.

A provision of the rule, which would have incentivized Medicare doctors to hold end-of-life discussions with seniors during new annual wellness visits, was uncovered by The New York Times in December, weeks after the regulation was issued. End-of-life care became a political lightning rod for the administration during the healthcare reform debate, with some conservatives accusing the administration of trying to withhold life-saving treatment from seniors because of the cost.

A November letter from Rep. Earl Blumenaeur’s (D-Ore.) office urging healthcare reform advocates not to publicly celebrate the inclusion of end-of-life counseling in the regulation bolstered the GOP’s claims that the administration abused the regulatory process to sneak in failed legislation.

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.

The administration withdrew the Medicare rule in January amid public scrutiny.

“It is clear that end-of-life regulations would not make it through Congress or survive a public debate during the rulemaking process, and were dropped into the final rule without allowing the public any opportunity to comment,” Energy and Commerce Republicans wrote to Health and Human Services Secretary Kathleen Sebelius.

“If a regulation based on a proposal that could not be enacted through the legislative process can be inserted into a final rule without a chance for any public comment, then there appear to be no limits to the power delegated to you as Secretary under [the reform law],” they continued.

Blumenaeur, who plans to again sponsor end-of-life counseling legislation, told The Hill in December he was unaware of the letter from his office and said he regretted the language.

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

Before end-of-life counseling became a GOP target in the summer of 2009, three Republicans had actually co-sponsored Blumenauer’s bill in April 2009.

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

A law passed in 2008, despite a Bush veto, said orientation visits for Medicare beneficiaries can include voluntary end-of-life planning discussions. The Obama administration’s now-withdrawn regulation said those discussions could take place during the new annual wellness visits. Bush's veto message did not mention end-of-life care.

Energy and Commerce Republicans asked HHS to brief the committee staff on the Medicare regulation next week.

"We hope to learn what the department's internal discussions were regarding this provision," they wrote, "and to learn how the proposal was surreptitiously inserted and what can be done in the future to guarantee that the administration will not attempt to usurp congressional prerogatives."