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Sunday, December 26, 2010

I Don't Care, But We All Should

The Obama administration has instituted, via regulations, the end of life counseling which was taken out of the Obamacare legislation after many people objected to the government paying for such services.

As reported in The New York Times, the Obama administration took steps to conceal the change from the public.

Substantively, I don't care.  I find nothing wrong with end of life counseling, and when my mother was terminally ill I was glad to have her instructions in writing.  Whether the government should be involved is a different matter, so I do not criticize those who want government to stay completely out of such decisions, even if only funding is involved.

Procedurally, we all should care.  This is a textbook example of what I have been warning.  Obamacare simply is the infrastructure.  The details and the demons will be worked out in regulations.

The fact that such a controversial change was kept quiet for so long, and that the Obama administration took steps to keep it quiet, is most troublesome of all.

Defunding is the only option at this point, because the regulators cannot be trusted.

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  1. .

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. ... - Constitution Of United States of America.

    People pay taxes as part of 'a more perfect Union' that is USA. The people's government is an integral part of society every waking (and sleeping!) minute of every hour of every day of their entire lives. The Affordable Care Act passed by the people's Congress and signed by the President in March 2010 is the law. In all systems of law, the people need rules, regulations, and standards to govern themselves (duh). It is that simple. In USA, trust has nothing to do with governing, government regulators _must_ follow the law.

    One is forced to ask, "Where in the world does an Associate Clinical Professor at Cornell Law School live?"

    "Defunding is the only option at this point, because the regulators cannot be trusted."

    Defunding government is the only option? Really? No law, no regulations, no rules, no police, no fire departments? (The people in Somalia are trying this. Do you think it is going well for them?)

    Ema Nymton
    The LEFT - taking shit for being right since long before you were born.

  2. You would think that if Republicans wanted to totally mischaracterize a health care provision and demagogue it like nobody’s business, they would at least pick something that the vast majority of them hadn’t already voted for just a few years earlier. Because that’s not just shameless, it’s stupid.

    Yes, that’s right. Remember the 2003 Medicare prescription drug bill, the one that passed with the votes of 204 GOP House members and 42 GOP Senators? Anyone want to guess what it provided funding for? Did you say counseling for end-of-life issues and care? Ding ding ding!!

  3. Ema, I do believe that you have missed the point entirely.

    Obamacare is the infrastructure by which many of our (Constitutionally guaranteed) liberties will be damaged. Defunding Obamacare is the only way to keep the Obamacare-funded and empowered regulators from overstepping their authority.

  4. @Ema.....you lefties are pitching a gigantic hissy fit because you KNOW the Affordable Care Act is unsustainable without the tax increase and the TEA party influenced House of Representatives WILL defund this nightmare (and NO, the entire government will not be defunded. wrong answer). From the cooked numbers of the CBO to the loud protests from 70% of America we HAVE rejected your far left agenda. I have but one question for you....WHO is John Galt?

  5. @Ema "The people's government is an integral part of society every waking (and sleeping!) minute of every hour of every day of their entire lives.

    And that is the problem in a small compact sentence. Thank you!

    "Defunding government is the only option? Really? No law, no regulations, no rules, no police, no fire departments?

    The professor never said that.

  6. Wow, Ema. Keep on stuffing those strawmen. You're going to need a lot of them to fill the void of your ignorance.

  7. Ema and people like her (him or it?), look to politicians to "guide them" and "help them". That is immature; not the sign of an adult. It is the sign of a dependent, who needs ruler/overseers. How sad. The United States is about LIBERTY, LIBERTY of the INDIVIDUAL, not the COLLECTIVE. Hussein bin Obama is about COLLECTIVISM and EGALITARIANISM (except where his and Mooochele's money is concerned, of course, then they are both all about increasing their profits).

    People like Ema are not truly American, just like Hussein bin Obama (aka, the Magic Moooslim) is not truly American.

  8. Ema Nymtom: that is one of the most incoherent and self-righteous puddles of fetid crap I have ever read. Blatant personal threats of violence couched in phony patriotism is no substitute for intelligent discussion.

    The best defense is to give retards like Ema a microphone and allow them to reveal the monster lurking behind their masks so thank you professor. By posting this obnoxious tripe, you performed a valuable public service.

  9. Ms. Nymton,
    I could be mistaken, but I infer from Prof. Jacobsen's post that he supports defunding Obamacare specifically because the law is unconstitutional. Additonally, the fed. & states are BROKE. There is no more money for welfare entitlements, including Obamacare. Period. And besides, "A more perfect union" does not = utopia with free healthcare for all! Plus, your suggestion that he equates defunding Obamacare with defunding all govt. (e.g. Fire, Police) really jumps the shark.

    The Right - Turning a blind to dysfunctional, whining, entitled
    Left since forever.

    p.s. Is that an image of Mohammed under your name?

  10. @ema comment is a sophisticated parody. the only possible alternative explanation is insane asylums allowing inmates internet access.

  11. From the BS put out by the leftists Iowa Democrats:

    "The only difference between the 2003 provision and the infamous Section 1233 that threatens the very future and moral sanctity of the Republic is that the first applied only to terminally ill patients. Section 1233 would expand funding so that people could voluntarily receive counseling before they become terminally ill."

    Wouldn't an ordinary person think that there was a significant difference between counseling terminally ill people and counseling anyone the leftists think should be gotten rid of?

    Leftists think they must destroy everything decent in America, wonder why that is?

  12. Wow, kudos to Ema. Not only did she manage to get the entire point of this post wrong, and with it the crux of the conservative argument against healthcare, she also managed to get the entire modern history of Somalia wrong with it! (Somalia didn't "defund" their government, they haven't had a stable one, or one at all really, since at least the early 90s)

    Congrats Ema, it takes talent to be that wrong and still believe you are in the right. Unless your entire post is just one massive troll. Either way, I salute you!

  13. Substantively, it may be a minor point, but you have to wonder why it was important enough to sneak in through the back door like this. On the face of it, it simply allows for end of life counseling, which theoretically only increases medicare costs, albeit minimally. This cannot be the entire story. Could this be simply an act of hubris, of course, with the won anything could be an act of hubris. Could they really be planning something that most of us would recognize as death panels - possibly. Or could this be a open door through which a range of "services" are enabled to further bleed the public treasury? I think option 3 is a distinct possibility even if the true intent lies elsewhere.

    Whatever the true intent is, we should not be forced to guess at it. This is the sort of behavior that leaves the business community sitting on their hands (and their money), because you just never know what the Dems are gong to do.

  14. "The fact that such a controversial change was kept quiet for so long, and that the Obama administration took steps to keep it quiet, is most troublesome of all."

    There is no investigative press in American MSM.
    The so called press merely take the Leftist anti American propaganda from the Obama Adminstration and publishes it.

    Unless some conservative blogger gets a hold of a story, nothing is published that does not glorify the Obama Administration. The very fact that the Obama Administration was telling people to keep quiet about this murderous scheme should result in mass resignations of those entrusted to govern the US.

  15. I’m stepping out of my element to leave a comment here but someone needs to start waving a flag of reason.

    Advance directives are so much a part of good medical care these days that they are included in the admission packets of many hospitals. My post retirement work for the last seven years has been among seniors in a variety of circumstances. Whether in independent living arrangements, assisted living, CCRT, or long-term care environments the need and importance of advance directives is as recognized as the need for durable medical equipment, handicapped access and proper nutrition.

    I have no illusions that anything I leave in a comments thread will change anyone’s already made up mind, but I urge readers to do a little homework of your own. Yellow pages, local senior centers, hospitals, community colleges, CCRT or assisted living facilities are all good places to start. Consult with directors, chaplains, teachers, and any other resource people you wish and ask them about advance directives. How are they different from DNRs? What is the meaning of “living will” and what are your state’s laws regarding end-of-life issues (and yes, they are regulated by the states, not the federal government). Talk with a few people from various hospice providers, a growing enterprise which has been a part of Medicare benefits for years.

    I have watched many families in denial cause dying relatives weeks and months of unnecessary protracted suffering when palliative care was available. Does anyone know, for example, that some people get discharged from hospice because they improve to the point that they no longer can be considered “terminal”? And who has given thought to questions like “If you have a terminal condition and are unable to communicate your wishes, do you have a designated individual with power of attorney for medical care who can make medical decisions on your in accordance with your wishes?” What if that person has died or is no longer available… is there a backup? What if you’re in another state (or another country) and have a life-threatening medical problem? What assurance do you have that you will never lose consciousness or be among the growing number of people with senile dementia or Alzheimers?

    Don’t want to ruin you day before the New Year starts, but someone needs to get your attention. Thanks for reading. I won’t trouble you further.

    (And before I forget… this inflammatory regulation simply insures that if and when a physician takes valuable professional time to answer questions asked by a patient or family member about the fine points of a final directive, he or she will be paid for their time instead of having to work pro bono. Seems reasonable to me.)

  16. @Ema Well, you know, Prohibition was "the law", too. "Don't Ask, Don't Tell" ... that was "the law", too. Are you arguing that "the law" is unassailable once it is "the law"?

    Also, show me a person out of a rabid hard core, capital "L" Libertarian or a capital "A" Anarchist who is arguing for "No" regulation, "No" funding of government, "No" police, firemen (which are supposedly locally funded anyway, not federally funded). Straw man is exactly right. It's easy to argue against ridiculous arguments that nobody is making.

  17. @John

    If you read the post it is not the directives themselves that he objects to...it is sneaking them back in after taking them out and then hiding the fact that they were reinstated...this is one of the key problems with this administration. Their attitude is "we are going to do what we want to do no matter what the public wants." Even if it is voted down they will find a way to put it back in. Look how they ignored the Nov.3 election and used a lame duck to try and cram every piece of unpopular legislation in under the wire...because they knew it wouldn't pass after January.

  18. It's not the end of life care counseling I have a problem with, it's the federal government having anything to do with it that's the problem.

  19. We seem to be missing the larger point here. The people's representatives removed the provision from the bill before it was signed into law. The executive branch, through his bureaucrat cronies, is effectively giving the middle finger to the elected Congress (and by extention, to the people).

    If Obama didn't like the fact that Congress removed the provision, then he had the Constitutional authority to veto the bill. That he is allowing his bureaucratic cronies to override the will of the people and Congress strikes me as the very definition of tyrany. And it's especially vile that they were conspiring to keep it a secret from the public.

    This should be a big deal.

  20. FWIW, I truly believe that the whole POINT of getting Obamacare passed (along with those other multi-thousand-page bills that the 111th Congress didn't bother read) was to create dozens, hundreds, who-knows-how-many new bureaucracies and regulatory panels whose edicts and rules are excluded from congressional oversight.

    There is no agency and no process with the power to review and reverse their edicts; thus under the EPA (for example) you get a farmer with a part-time swamp that's declared "protected wetlands" so he's prohibited from trying to turn it into productive acreage. Obviously, decisions about private property are no longer solely the owner's concern-- some governmental agency (or several) also wants a say in your business and how you conduct it. It's also obvious that the Professional Left is working hard to ensure that personal choice is no longer really "personal"; they're already trying to claw the saltshaker out of your hands and prevent toys from being given to kids along with Happy Meals. We're well down the road of having thousands of eyes prying into our personal and business affairs, all with the intent of forcing us (once-free Americans who used to have God-Given Rights to Life, Liberty, and Property/ Pursuit of Happiness) to make only CORRECT (=Officially-Mandated) choices about how we live and what we do. Has anybody tried lately to force OSHA, or the FDA, or the EPA, --or whoever-- to rescind any of their "because our experts say it should be thus" mandates? Well, here comes more-of-the-same, dozens of times over.

    The upshot is that American individuals and businesses will be bound by ever-increasing reams of (often-conflicting) regulation, and no way to get relief.

    We-The-People have been condemned by this VILE congress and this EXECRABLE administration to tyranny-via-bureaucracy; or one might call it "Regulation without representation."

  21. Someone needs to read "Ema's" name backwards. Then disreguard everything the troll has said.

  22. I'm wondering where the Left has been right for 50 years. War on pverty? Fail. Peace through appeasement? Fail. Stimulus? Fail. Change? Fail. Schools? Fail. Unionized public employees? Fail.


  23. The problem here is not the "what" of the regulation. Rather, it is the fact that Congress explicitly rejected the "what" when it was writing the legislation, and now the dictator-in-chief is imposing it on the United States in defiance of the legislative branch.

    But then again, what do you expect when the FCC is telling a federal appellate court to bugger off by enacting "net neutrality" after that court told the agency it lacked the legislative or constitutional authority to regulate the internet?

  24. Dear Professor,
    You seam to be getting the moonbats attention lately. Please keep up the good work.

    Doing an end run with regulations when you can not get it through a Congress your party controls, that is low. And what's to stop the next president from changing the rules, and changing the law.

    The swamp must be drained. The bureaucracy must be dismantled.

  25. Also, show me a person out of a rabid hard core, capital "L" Libertarian or a capital "A" Anarchist who is arguing for "No" regulation, "No" funding of government, "No" police, firemen (which are supposedly locally funded anyway, not federally funded).

    That is the current favorite straw man of the Idiot Left: If you oppose wasting Government money on things it has no business doing, ipso facto, you want all essential public services eliminated also.

    Ironically, it's precisely because the Government is wasting money on crap it has no business doing that public services are being cut.

  26. @John - Advance Directives may be "normal" but people need to wake up. NEVER give the advance care directive to a care provider, because you (the loved one) will lose legal control over your family member who needs help.

    The problem: more and more doctors are making their decisions on the basis not of what patient or loved ones desire, but on their own perspective of likely "quality of life" after treatment completes. If THEY think there won't be a "good" result, they will refuse treatment. Or even, as discussed and documented in JAMA, will call for a "slow code" (slow response to hospital emergency so the person will die) or even inject life-saving medication into the mattress so family members will be deceived. I have a friend who had to go to court to retrieve her husband's advance directive because the doctor refused to treat AND refused to release her husband back to her care.

    I began to wake up to this myself when a local hospital required us to sign consent that all such directives would be ignored for any admitted patient. Confused, I asked why. The answer: "because we assume you want to be treated here. Too many facilities now use such directives as an excuse not to treat at all, or to minimally treat. If you want to terminate treatment for your loved one, you will have to tell us separately. That is not our decision to make." I was floored. (I always thought DNR's etc were to avoid extreme measures for the terminally ill. Not any more.)

    Best advice:
    * Prepare whatever legal documents you feel are warranted, but DO NOT give them to medical providers.
    * Ensure a loved one who understands is given proper power of attorney.
    * ONLY if and when you desire to terminate treatment should you turn over the advance directive to the provider.

  27. The text of the regulation (1233) is here:


    As a health care provider, I have to note a few important questions:

    1. Is this necessary? If so, why? Physicians can be compensated for counseling already... Why single out this issue?

    Here's what one doctor says:

    All I have seen in the ER, in terms of...living wills, advanced directives, etc. is that everybody's got a plan, until they've been hit. All that discussion, signing, that went on before in the primary care physician's office, assuming that it did, all goes out the window when grandma comes in to the ER and is dying in front of the family. Suddenly it's all about "please do everything you can to save her." This is not as much about the practice of medicine in this country as it is about American's perceptions and their inability to see death as a natural end point to life. Until then, it's going to be one bullsh*t quality measure after another. "Did you explain end of life care before you intubated granny? No? Well, then no reimbursement for you."

    This leads naturally to the next question:

    2. Do we know that patients and their families will make better decisions if more end-of-life decisions are made far in advance? (As opposed to when the end-of-life issues are at hand, and perhaps more clear).

    3. Nurse Practitioners (NPs) and Physician's Assistants (PAs) will be paid for end-of-life counseling. NPs and PAs may have little or no training in aggressive end-of-life resuscitation. Should NPs and PAs be participating in this?

    3. Will families be adequately educated on the reversibility of end-of-life orders?

    4. Is the term "orders regarding life sustaining treatment" a misleading euphemism for "Do-not-resussitate" (DNR) orders"?

    5. Does the government have a conflict of interest? (Saving money with more DNR orders).

  28. @Paine: "You would think that if Republicans wanted to totally mischaracterize a health care provision and demagogue it like nobody’s business, they would at least pick something that the vast majority of them hadn’t already voted for just a few years earlier. ....

    Yes, that’s right. Remember the 2003 Medicare prescription drug bill,..."

    Except that most Republicans (and conservatives and libertarians and TEA party-types) were against that bill too. Only the inside the beltway RINOs liked it. And they got kicked out of Congress in 2006 because of stuff like this.

    If this is so good, why are the Dems hiding it from the public? : "The most amazing part of the New York Times story is an email from Representative Earl Blumenauer (D-Oregon) to his accomplices back in early November, when these new regulations were being drafted:

    “While we are very happy with the result, we won’t be shouting it from the rooftops, because we aren’t out of the woods yet. This regulation could be modified or reversed, especially if Republican leaders try to use this small provision to perpetuate the ‘death panel’ myth… We would ask that you not broadcast this accomplishment out to any of your lists, even if they are ‘supporters’ – emails can too easily be forwarded… Thus far, it seems that no press or blogs have discovered [the new Medicare regulations], but we will be keeping a close watch and may be calling on you if we need a rapid, targeted response. The longer this goes unnoticed, the better our chances of keeping it.” " -via HumanEvents

    ^THAT really doesn't bother you?

  29. Am I the only one who thinks that:

    One is forced to ask, "Where in the world does an Associate Clinical Professor at Cornell Law School live?"

    is a personal threat?

  30. @pasadenaphil - I have been dealing with some weirdness lately, hah, http://is.gd/jwdbIm http://is.gd/jwc5s

  31. Whoops, first link above didn't work, try this for wisdom from one of my colleagues, http://is.gd/jwicI

  32. What if "A more perfect union" meant getting rid of the leftists and proggies? Would Ema be on board with that?

    The left loves the preamble but hates the actual constitution.

  33. As an Australian, I am troubled by the sneakiness of the provisions. I am very troubled by the way that some want to hide the regulations - trying to get away with them.

    Let me explain this from a personal point of view. Like Professor Jacobson says, it is a good thing to have the advanced directive... except of course when the hospital decides to go by the letter and institutes DNR in all circumstances.

    To this I add the story of my father's last few months of life. My father suffered a number of strokes. However, it was the one a few months before his death that saw the "authorities" begin the nagging of my mother to put up the DNR. It started in the small country hospital at Wonthaggi where he was taken at first after the stroke, and it continued at the Monash centre.

    In the large hospital, this form of counseling is not done by the doctor, but by the "welfare" person. There is a lot of pressure that is placed upon the family to go along with the doctor and the hospital, and not upon one's life instincts.

    The new regulations are less about advanced directives and more about pushing people into making decisions not to have the cancer treatment, or the big heart operation, or the lung operation... etc. It is about pressuring people to end their lives through euthanasia.

    On the other hand, advanced directives, which should be something done with a lawyer, is about determining under what circumstances treatment should or should not be given.

    The new regulations are definitely a problem if the intention is to push euthanasia on demand, and yes I suspect that is the case when one sees that those behind the regulations wanted to hide what they had done.

  34. Thanks for the link professor. I need a bath. What is particularly damning for Yglesias is that he himself sets the tone of obscenity and vile hate speech for commenters to build from. It's just a rage orgy of people whose heads must be exploding. Ema would be a considered a rational and thoughtful intellectual at that blog.

    BTW, do you know Beth at Cornell?

  35. I wonder how many of the same "christians" who pretended to be so upset about Teri Schiavo were prayin' and wailin' in the streets when the Republican-ruled states of Texas and Arizona killed poor people because they couldn't pay.

    Actually, I don't wonder at all. See, the christians don't care about anything other than the Almighty Dollar. The Schiavo case only mattered because there was some money left there, and no "christian" Republican will ever raise a fuss for a sick poor person.

  36. @Not...

    Um, what the hell are you talking about?

  37. I used to work for a very liberal attorney who did estate planning. Living will forms were presented with little discussion, elderly people simply told that unless they wanted their children to be bankrupted by the cost of keeping their parents alive with machines, they would check all the blanks that allowed DNR, withholding of food and water, withholding treatment, etc., if they are diagnosed with an "End-stage condition" which is defined as "a condition caused by injury, disease or illness which results in severe and permanent deterioration indicated by incompetency and physical dependency for which treatment is medically ineffective." Could there be anything more vague? So if you're incompetent and physically dependent, your heirs can withhold food and water. And the elderly will simply be handed a form and told to sign this unless they want to be kept alive on a machine. I see these end of life counseling sessions as nothing more or less than a method of reducing health care costs by getting rid of those deemed unproductive.

  38. @Not

    That's a pretty broad brush you used there, devoid of any logic whatsoever. And a demonstrable misunderstanding of people that are Christian.

    Hysteria is no substitute for reasoned thought in a debate.

  39. donttread, I call 'em like I see 'em. Come on, where WERE the christians when Texas and Arizona were killing poor people? Not a peep out of any of the same people who set up a christian carnival outside of that nursing home.

    The ONLY difference that I ever saw between that one and the (ongoing) killing in Texas and Arizona was the money. Nothing else. Well, maybe another difference: Texas and Arizona are run by Republicans, and the christian 11th commandment is never to contradict a Republican about anything.