>First, the good news: Mrs Ruthie Webster has been moved to a long term care facility that can offer her dialysis. The bad news, this case is still being used to test the Texas Advance Directive Act, Section 166.046.
This was not a choice between death and life. This was a choice concerning where medical care was to be given.
As far as I can tell, the conflict between Mrs. Webster and the hospital began over the issue of discharge to a lower level of care. It appears that Medicare Long Term Acute Care Hospital regulations and the scarcity of facilities that could provide dialysis for a patient who could not sit up were a problem in Mrs. Webster’s case. The family members did not wish to “be forced to move their mother,” although the hospital had attempted to arrange the transfer from the beginning and some sort of post-acute care must have been a part of the discharge plan before admission. Mrs. Webster would never have been – in fact never was – in danger of being unable to access dialysis. She will be dialyzed at her new nursing home or she could have had home dialysis, either at her home if someone lived with her there or at the home of a relative. (See the comment from Jerri Ward, here.)
Long term acute care hospitals are required by law to have a discharge plan for any patient who is admitted to their facility, before they are admitted. The patient must meet strict criteria including an anticipation of being able to follow that discharge plan. In each case, the institutions are required to periodically review each patient’s medical status and determine whether he or she meets the regulations under which the institutions work.
Reading the very few newspaper articles available on this case, all from August 18th, led me to believe that the hospital and doctor were requiring the patient’s family to follow through with the discharge plan to the other hospital, rather than deciding that it was time for the patient to die. I have no idea whether 166.046 is the only law that allows doctors to do this or whether another would have been appropriate.
Tough questions must be asked about chronic care and end of life care as regulated by laws and the government. The issue goes far beyond “funding,” although that is complicated enough.
In the last week, I’ve had conversations with several people involved in hospice care and a former hospice nurse who now works as an administrator for a Rehabilitation Facility. I asked them questions in an attempt to understand what happens when patients are no longer eligible for Medicare benefits under Medicare laws and regulations.
The consensus is that the administrators, lawyers, doctors and nurses who run and work for these institutions believe that admitting or continuing care for patients who fall outside of Medicare qualification guidelines will endanger the institutions’ license and that the penalties for not following the guidelines include demands for payment of money that Medicare has paid them extrapolated to the first time they billed Medicare, fines, jailtime and the confiscation of their homes and assets for the administrators. (See Association of American Physicians and Surgeons for for more.)
The Rehab administrator said, “We can’t keep them” on the Medicare plan if the patient is not making progress or otherwise becomes ineligible for Medicare. I asked about families who did not want to move the patient, especially in cases such as Mrs. Webster. He explained that the facility cannot bill Medicare any longer so the patient then becomes liable for fees of $140 for “room and board” per day plus any medical care necessary. The facility also risks its standing with Medicare, since they are supposed to only care for patients who meet Federal standards and they are required to have “compliance plans” and “compliance officers” to ensure this.
I’ve posted information about long term acute hospitals. Here is similar information on Rehabilitation hospitals from the Center for Medicare Advocacy, which have similar regulations.
LifeEthics 
>"Reading the very few newspaper articles available on this case, all from August 18th, led me to believe that the hospital and doctor were requiring the patient's family to follow through with the discharge plan to the other hospital, rather than deciding that it was time for the patient to die. I have no idea whether 166.046 is the only law that allows doctors to do this or whether another would have been appropriate."If this is the case, I believe that the use of 166.046 to accomplish a discharge was highly unethical. The standard of 166.046 is "inappropriate" care–not "will the third-pary payor" reimburse us for this. I have no doubt that the latter is the motive behind these protocols and this law–but, I am certain that this motive was not revealed to the legislature in 1999.Thus, if the physician represented that further medical treatment was "inappropriate" and the patient's condition was "futile"–when all he intended to accomplish was a forced transfer–he, essentially, lied! Further, he defamed the patient with the "futile" label–which makes it much more difficult to effect transfers–at least within Texas (that facility in Illinois seems ready to take everyone from Texas-assuming it's the one that was ready to take Andrea Clark and Mrs. Vo and Kahlila Roberson}.Furthermore, your analysis confirms for me that–contrary to what the hospital administrators claim at Advance Directives Coalition meeting–it is hospital administrators pushing for these futility meetings–and not attending physicians. And, that the motive is cost-cutting, not what is best for the patient.The fact that a funding issue existed in Mrs. Webster's case, illuminates a huge conflict of interest on the part of the hospital ethics committee.This is a very informative post which confirms my position regarding this law and the motives behind "futility" protocols.
Posted by Jerri Lynn Ward, J.D. | September 4, 2006, 7:33 pm>I am not privy to the procedings at Regency Hospital, so I can't say more than my belief that the problem seems to have begun when the family refused the transfer plan for Mrs. Webster under the Medicare guidelines for Long Term Acute Care Hospitals.I wouldn't say the physician lied. An RN close to me said she wondered why the families weren't ready to let their loved one go, since most people would consider a stroke on top of a heart attack on top of renal failure to be natural death from multiple causes.As someone who follows the orders of doctors, she understands exactly what was going on. Those of us who have drawn blood, changed IV's, maintained the ventilators and cleaned the bodies of these patients understand the pain we're causing them. In the case of Mrs. Clark, our efforts are predictably futile and cruel.I've said before that I did not consider this an appropriate use of TADA if the purpose was for Mrs. Webster to be transferred to an appropriate level of care.There are few facilities with such specialized capabilities as that one in Illinois because few are needed due to the rare incidence that surrogates choose to continue ongoing renal dialysis in comatose patients.There is no funding for such facilities because the government and families do not choose to spend their money that way. I know it's nearly impossible for families to take care of these patients. It takes time for the changes in our lives when a loved one needs to be turned, bathed and fed, even without needing to hook her up to dialysis 3 or 4 times a week. (Take another look at my post and the essay by Mr. Faria. It's not "funding," it's government guns – That man, Mr. Clinton's Attorney General Janet Reno's literal guns and the continued virtual guns of Medicare regulations – that forces the serial re-evaluation. The ostensible purpose of the Medicare Special Nursing Facility, Long Term Acute Care, etc., laws and regulations may have been to limit costs – and we can all see the necessity of that at some point – but the effect was to "imprison Medicare patients," as Faria's organization (and, at one time, mine, although I can't afford the dues these days), the AAPS, charges.(It was those draconian laws and regulations of the mid-90's and Reno and Freeh staging rallies in football stadiums to encourage Medicare patients to turn their doctors in for $1000 reward that made me learn to type and then, to become more of an activist. One little protest and then I couldn't stay at home on life issues, then I had to get out and do something, and then it just snowballed to where we are now.)
Posted by LifeEthics.org | September 4, 2006, 8:36 pm>I totally agree with you on the point about the "guns" of the OIG and the Feds.One reason that I think that 166.046 poses an intractable dispute between the two sides is that the present structure of healthcare with its regulations and licensing requirements offers no real choice to consumers (and doctors sometimes). If I want care and am willing to endure pain and burdens that you find untenable and against your conscience–I have very little recourse if you enact these protocols. Such is not the mark of a free-market system.I do think it's an issue of funding. It's funding with government dollars–thus we pay the piper. By its nature, government is wholly pragmatic and utilitarian.
Posted by Jerri Lynn Ward, J.D. | September 4, 2006, 8:54 pm>But, if you want the right to my medical skills and time and are willing to kill your unborn child and risk your own health . . .The thing is more complicated than funding and licensing. It is about the very basic meaning of the right to life and liberty.At what point does one give up the right to a conscience? The traditional right to life is actually the right not to be killed and to expect society to protect that right by preventing the actions of others that would cause death.None of us have the right to enslave or kill another so that we can live, except when the other is trying to kill. Even then, the least amount of force necessary to preserve life and liberty should be used.The classic scenario is that I can call on society to keep you from hitting me, but I have no right to call on society to force you to feed, clothe me to your harm. The latter is the collectivist that Dr. Faria was writing about.By allowing the doctor to say this much and no more, you do not enslave him. By requiring him for a time to assist with transfer or to delegate the requirement, then you protect the patient's life and liberty with as little infringement on his life and liberty as possible.If there is no one else who will take over the medical care I would not assume it is because all doctors and hospitals are conspiring together. If you indefinitely and without limits force the doctor to give his labor and mind (to perform abortions, prescribe or dispense pills on demand, monitor the ventilator and dialysis machine and blood work and all the million bits and pieces that goes along with it now and who knows what all in the future of medicine) you create a slave, whether you expect him to do it for free or not.You can forbid the action of giving pills, but you can't force the action (or mental intention).And then, there's the practical side: The burden should be on the family and church, not on everyone that pays taxes. If the patient's family won't give up their job and move in with the patient for home dialysis, why do they expect "the hospital" to give up resources, risking the jobs of all the employees?Or, risking the very real specter of ever more taxes, draconian laws and government intervention on one side and the loss of doctors willing to take chancy patients on the other. And then a vicious cycle starts.
Posted by LifeEthics.org | September 4, 2006, 9:24 pm