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May 1996
Volume 60 |
Number 5
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WASHINGTON REPORT
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HCFA Issues Draft
Clarifying Instructions for New Teaching Rules Effective July
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Michael Scott, Director
Goverment and Legal Affairs
In her "Practice Management" column in the April 1996
ASA NEWSLETTER, Karin Bierstein reported on the settlement
of a Medicare false claims action against a Pennsylvania hospital
and three anesthesiologists on its medical staff. According to
news releases regarding the settlement, one of the issues involved
in the government's allegations was failure of the anesthesiologists
to perform all of the steps required for medical direction reimbursement
under Medicare regulations.
Announcement of the settlement should be of particular interest
in light of the increasing incidence of claims of Medicare fraud
by medically directing anesthesiologists in connection with termination
of certified registered nurse anesthetist (CRNA) employment contracts.
This is the essence of the qui tam action brought by the Minnesota
Association of Nurse Anesthetists against a large number of anesthesiologists
with privileges at hospitals in the Minneapolis-St. Paul area,
and ASA has recently become aware of a CRNA-inspired fraud investigation
of anesthesiologists in eastern Tennessee. Allegations of Medicare
fraud were also contained in the recent testimony by the American
Association of Nurse Anesthetists to the House Judiciary Committee,
mailed to all ASA active and resident members in mid-March.
A major difficulty for anesthesiologists in responding to medical
direction fraud allegations is the fact that Medicare's regulations
are currently silent as to the type of documentation required
in order to establish conformity with the medical direction rules.
Except for a lack of specificity in the requirement that the anesthesiologist
medical direction requirements are reasonably clear (and since
they are based on ASA's own definition of a physician service,
ASA members are in a fragile position to argue otherwise). But
in light of the reported credo of most federal investigators -
"If it is not on the chart, it did not happen" - the
lack of specificity in the regulations as to documentation requirements
raises a real problem.
A recent development with respect to Medicare's new teaching reimbursement
rules may, however, provide the vehicle for solution to the documentation
dilemma. Accompanying this article is the text of the "Anesthesia"
portion of clarifying instructions for reimbursement of teaching
physicians, issued in draft form by the Health Care Financing
Administration (HCFA) in March [Table 1]. Of immediate interest
to teaching physicians is the fact that HCFA does not require
the anesthesiologist to be in the room during "nonkey"
portions of the procedure but only to be "immediately available";
in another portion of the instructions, HCFA expressly declines
to define "immediate availability" in terms of required
physical proximity to the operating room.
To all anesthesiologists medically directing residents or nonphysician
providers, however, the most important part of the instructions
is the sentence relating to documentation, re-quiring merely that
"the medical re-cords must indicate the teaching phy-sician's
presence or participation during the key portions" of the
procedure. This strongly suggests that no documentation is required
for the pre- and postanesthesia visits or for conformity with
the "immediate availability" standard for nonkey portions
of the procedure. If this is the documentation requirement for
the teaching of residents, it should presumably also be so for
medical direction of nonphysician providers.
On April 10, ASA representatives met with members of the HCFA
staff to discuss both the substantive requirements of the instructions
and the necessary documentation. Part of the discussion related
to the fact that HCFA had reportedly agreed to revised instruction
language that appears to allow surgeons to supervise residents
in two overlapping cases, while both the new teaching regulations
and the draft instructions limited anesthesiologists to a single
procedure with a resident, if full reimbursement were to be made.
The ASA representatives argued, just as ASA had argued in its
comments on the proposed regulations, that fairness required that
the same standard be applied to anesthesiologists as to surgeons.
ASA President Norig Ellison, M.D., has requested a meeting with
HCFA senior officials to discuss this subject further.
One important substantive point did emerge from the April 10 meeting.
Contrary to what was stated in the regulation, HCFA did not intend
to require the teaching anesthesiologist to participate directly
in the preoperative and postoperative visits, and a correction
notice is being issued to delete this requirement from the regulations.
Also noted was the fact that contrary to what was said in the
proposed instructions [Table 1], the teaching anesthesiologist's
reimbursement per case no longer varies depending upon the number
of cases medically directed.
ASA President, Other Anesthesiologists Testify on Anesthesia's
Effect on Fetus
On March 21, ASA President Norig Ellison, M.D., testified before
a subcommittee of the House Judiciary Committee on the issue of
the effect of anesthetics on the fetus in late-term abortions.
Also participating in the hearing were David J. Birnbach, M.D.,
President-Elect of the Society for Obstetric Anesthesia and Perinatology
and Professor of Anesthesiology at St. Luke's Roosevelt Medical
Center, New York, New York; David H. Chestnut, M.D., Chair of
the Department of Anesthesiology, University of Alabama Birmingham
Hospital, Birmingham, Alabama; and Jean A. Wright, M.D., Associate
Professor, Department of Pediatrics and Anesthesiology, Emory
University, Atlanta, Georgia.
Testimony of all the anesthesiology witnesses was consistent,
disputing at length the claim that anesthesia given to the mother
during a late-term abortion caused neurological demise of the
fetus. All of the witnesses expressed concern that widespread
dissemination of this false claim by the media has caused many
women to question whether to undergo necessary surgery during
pregnancy, for fear of injuring the unborn child. Also expressing
this concern to the subcommittee was Rep. Tom Coburn, M.D. (R-OK),
a family practitioner who has continued to deliver babies in his
home state, when possible, since his election to Congress more
than one year ago.
The hearing was held in connection with efforts by Congress to
prohibit the so-called "dilation and extraction" method
of late-term abortion except under very limited circumstances.
President Clinton has opposed the legislation unless the list
of exceptions is substantially expanded. ASA has taken no position
on the legislation but has offered testimony in both the Senate
and the House to dispel concerns about the safety of anesthesia
for pregnant women.
On March 27, the House approved the Senate's version without expanding
the exception grounds, and the bill went to the White House, where
it was vetoed, as expected.
House Passes Health Insurance Reform Bill With MSAs, Cap on
Noneconomic Damages
On March 28, the House passed a GOP-sponsored bill limiting to
12 months the period in which a new employee can be excluded from
the employer's group insurance plan by virtue of a pre-existing
condition and prohibiting insurance companies from dropping enrollees
except for nonpayment of premiums.
The bill would also require insurers who offer individual health
insurance policies to make them available to individuals who have
lost their jobs, provided that they have carried job-related health
insurance for at least 18 months prior to termination. An additional
provision would make it easier for small employers to band together
to obtain health insurance on their employees on terms more comparable
to those available to large employers.
Controversial provisions of the bill include those allowing individuals
to establish medical savings accounts (MSAs) similar to individual
retirement accounts and the establishment of new federal standards
for malpractice lawsuits in federal and state courts, including
a cap of $250,000 for non-economic damages and the same cap for
punitive damages. President Clinton has already expressed strong
opposition to both of these provisions.
The Senate was scheduled to take up on April 18 a similar but
currently less ambitious health insurance reform bill (S. 1028)
sponsored by Sens. Nancy Kassebaum (R-KS) and Edward M. Kennedy
(D-MA), favorably reported several months ago by the Committee
on Labor and Human Resources. In the Senate, a major issue will
be the extent to which amendments can be limited by the leadership;
if the Senate bill becomes a "Christmas tree," this
development dooms the possibility that a conference bill can eventually
pass both houses containing terms that are acceptable to the White
House. There are already indications that the House leadership
will not fall on its collective sword in the face of a veto threat
over the MSA and liability reform with presidential politics as
to make any such predictions rankly speculative.
The good news, however, is that both the Republicans and Democrats
seem to agree on the need to accomplish insurance portability
reforms, and the President has already endorsed the concept. Perhaps
after countless bills, innumerable hearings and hundreds of millions
of dollars in public relations efforts on all sides, Congress
and the President can make a modest start on incremental reform
before the conventions begin.
Lao Tzu said, "A journey of a thousand miles must begin with
a single step." But then again, he never had to worry about
presidential politics.
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