That seems to be the question du jour concerning the health care reform bill. Although the notion (advanced by Betsy McCaughey and others) that the bill would require seniors to undergo counseling has been characterized as a wingnut lie, when I went and read the relevant section of the original bill (pages 425-430) things got really muddy. After reading and re-reading I just couldn't be sure who's lying, who's telling the truth and who's just plain confused. I'm nowhere near as smart as some folks on both sides of the issue who seem so sure so I thought I'd ask Fred Thompson. After all he's a former senator and a lawyer, and McCaughey made the claim on his show. I wrote to him, in part, concerning the bill:

The language is arcane. It amends and makes reference to portions of the Social Security act which I was unable to access. That said, to my reading it merely adds such counseling as a covered service but does not mandate it. Do you really believe it will force elders to engage in such counseling? Alternatively, is the language so vague that we really can't anticipate how it will be interpreted? I would appreciate it if you would help me and some of my blogging colleagues work through the legalese. Thanks!

In the meantime, while I waited for Fred's reply (and I'm still waiting) a commenter tipped me off to these posts by Wesley Smith at Secondhand Smoke. Concerning McCaughey's claim he wrote:

Is she right? It is very hard to tell. That section of the bill refers to existing law without quoting it.

And, a little further on:

Here’s the thing: I’m a lawyer and I couldn’t figure out what this section of the bill would actually require because it refers to existing laws, and to look up and cross reference those against the bill would require hours to figure out. That in itself should send up warning flares. From what I have seen, this bill is simply incomprehensible.

It is urgent that our representatives slow down, figure out what these bills really contain, and let the people weigh in before the legislation is finally decided upon. That the President of the United States, the Speaker of the House of Representatives and others in political leadership want to deny us that opportunity tells me this bill is toxic–and on that basis alone, it should be rejected unless sufficient time is allowed to permit the democratic process to operate in a proper fashion.

So Smith, a lawyer and an expert in bioethics no less, shares my confusion! At the very least we need time for the representatives and the American public, particularly seniors, to understand the provision. Maybe, as Smith suggests, the language of the bill needs some tweaks to make it abundantly clear that the counseling would be voluntary and without coercion:

Regardless, if mandatory counseling is not what the president and Congress really have in mind, it would be very easy to correct any confusion:

1. Add a provision stating that the counseling is entirely voluntary–both for the patient and the medical provider. In that way, the regulations–that will be thousands of more pages–promulgated by the agencies to further the purpose of the law won’t be able to require counseling.

2. Add a provision stating that the patient will not lose benefits if he/she refuses counseling or does not sign an advance directive.

3. Add a provision that no service provider will lose compensation for not providing counseling.

4. Add a provision prohibiting the counseling from being directed toward refusing or accepting care–along the same lines of the Kennedy/Brownback bill passed last year to prevent genetic counseling of pregnant women carrying a Down baby from being directed toward abortion.

All the ambiguity aside Smith did cite some concerning language in the provision (italics added):

Such consultation shall include the following:

and---

The Secretary shall limit the requirement for explanations under clause...

OK, maybe the imperative words here merely refer to coding requirements in order to get reimbursed for the counseling, but who knows?

I'm reading cocksure opinions, from folks on both sides of this debate, not wingnut lies. It's refreshing to see a nuanced analysis such as Smith's, and I hope he stays on top of the issue.