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Opposing Opt-Outs from the Medicare Supervision Requirement

On November 13, 2001, the Bush Administration published a final rule regarding the Medicare and Medicaid anesthesia Conditions of Participation (COP) for hospitals, critical access hospitals (CAHs) and ambulatory surgical centers (ASCs). The rule retains the current requirement for physician supervision of nurse anesthetists, but allows state governors to opt out of this requirement under certain circumstances. To opt out, a governor must first consult with the medical and nursing boards regarding access to and the quality of anesthesia services in the state. If opting out is consistent with state law, and if the governor determines that it is in the best interests of the citizens of the state to opt out, the governor must advise the Centers for Medicare & Medicaid Services (CMS) in writing. The opt-out becomes effective upon submission of the request. A governor may retract this action at any time.

ASA opposes gubernatorial opt-outs. There are no outcomes studies on the practice of unsupervised nurse anesthetists. The studies that have been conducted show that anesthesia care is improved with the involvement of a physician. The most recent anesthesia outcomes study, published in 2000, found that for every 10,000 Medicare patients who had general or orthopedic surgery, there were 25 more deaths when an anesthesiologist did not direct the anesthesia care. For every 10,000 patients suffering a complication, the absence of a supervising anesthesiologist resulted in 69 additional patients not surviving the 30-day period after hospital admission. It is reasonable to conclude that the mortality rate would have been even higher had there been no physician at all supervising nurse anesthetists.

In non-academic settings, Medicare pays the same for anesthesia care whether the service is provided by an anesthesiologist, an anesthesiologist medically directing a nurse anesthetist or a nurse anesthetist supervised by the operating surgeon. When an anesthesiologist medically directs a nurse anesthetist, the fee is divided equally between the two providers. When a surgeon supervises a nurse anesthetist, the surgeon does not receive any portion of the anesthesia fee; the full amount goes to the nurse anesthetist or his or her employer.

Since anesthesiologists are able to perform services that are included in the anesthesia fee that would have to be performed and billed by other physicians if the hospital chose to utilize nurse anesthetists rather than anesthesiologists, it may be more costly to use nurse anesthetists in certain situations. For example, because nurse anesthetists are not qualified to make medical evaluations and judgments, the need for additional consultations by physician specialists and laboratory testing is greater when an anesthesiologist is not involved.

For further information, please contact Ronald Szabat, ASA Executive Vice President & General Counsel, or Lisa Percy, ASA State Legislative and Regulatory Issues Manager, at (202) 289-2222.

March 2009