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'Death panels' controversy: Is Obama avoiding Congress?

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On this issue, however, Mr. Sabato sees potential political peril for Mr. Obama. “It’s an issue made-to-order for the Republican House in trying to counter 'ObamaCare,' and for Republican presidential candidates who will cite this as the first implementation outrage of many to come in health-care reform,” he says.

The power of Palin

A similar provision was dropped from the health insurance reform package in 2009 after Palin's "death panels" comment stoked a public backlash. But administration officials say the change is "a straightforward extension of policies adopted by the Bush administration."

They note that a voluntary, one-time interview for those eligible for Medicare for the first time was adopted under President George W. Bush in 2003. The scope of that interview was expanded in 2008 – also under Bush – to allow for a voluntary discussion on advanced care.

In 2010, Obama's health-care law added annual wellness visits to the range of Medicare benefits. Now, the new provision would include the “voluntary advance care planning” as a part of those annual visits.

The Obama administration has the power to make the change because DHHS is tasked with writing the precise rules by which the broad health-care law will be carried out. DHHS decided to include this new provision as one of the rules of the health-care reform law.

As a rationale for this change, the rule cites medical research asserting that advance care planning improves end-of-life health care for patients, reduces stress and depression for surviving relatives, and finds no evidence that “advance directive discussions” lead to harm.

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