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August 1996
Volume 60 |
Number 8
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WASHINGTON REPORT
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| 1996 ASA Legislative
Conference Summary |
Janée Bonner
Federal Legislative Affairs Coordinator
The annual ASA Legislative Conference was held in our nation's
capital on June 9-11, 1996, with more than 350 anesthesiologists
in attendance. Representatives from 47 states and the District
of Columbia attended the three-day meeting to hear presentations
from a dozen federal legislators as well as congressional staff,
political pundits and policymakers on a variety of issues facing
anesthesiologists at the state and federal levels.
Bertram W. Coffer, M.D., Chair of the Committee on Governmental
Affairs, was joined by ASA President Norig Ellison, M.D., in opening
the conference and welcoming the attendees. Dr. Coffer stressed
the importance of physician involvement in all levels of politics
-- local, state and federal -- and encouraged each atten-dee to
become an ASA key contact and contribute to the ASA Political
Action Committee.
The timing of the conference was perfect this year, as the House
and Senate were busy trying to iron out the final differences
in the Kassebaum-Kennedy legislation, which would provide insurance
portability and other insurance reforms. The first item of business
for the conference attendees was a briefing by Rich Deem,
Director of Federal Affairs for the American Medical Association.
Mr. Deem explained a number of issues related to the Kassebaum-Kennedy
legislation, including the problems with the fraud and abuse provisions
contained in the bills. He thanked ASA for its past help in relaying
the message for correcting this portion of the bill to Capitol
Hill and asked those in attendance to ask their legislators to
support amending the fraud and abuse provisions to protect physicians
from punishment for simple billing errors.
The luncheon speaker was Jeffrey H. Joseph, Vice-President
for Domestic Policy for the U.S. Chamber of Commerce. He provided
the audience with an overview of the health system reform debate
from the business perspective, noting that the debate over reforming
our health care delivery system has been ongoing for decades and
is cyclical in nature. In 1992, the Democratic congressional leadership
was responsible for not allowing the small market reform legislation
supported by then-Senator Lloyd Bentsen (D-TX) to the floor for
a vote; in 1994, the Republicans took all responsibility for killing
the Clinton reform package.
Mr. Joseph explained that it is the constituency of the U.S. Chamber
-- mostly small businesses -- that feel the health insurance crunch.
They are the ones that have the hardest time providing health
benefits for their employees, yet the largest growing segment
of the U.S. economy at the present time is small business. Physicians
are being targeted for cost reductions because the general consensus
is that they are the only ones who have anything left to give.
The continuous rise of health care costs in this country has slowed,
mostly because the medical profession is going through a change.
More and more people are moving to managed care, which is here
to stay. Mr. Joseph encouraged physicians to learn to work within
the new scope of cost management and to make sure that workplace
changes work for them and for their patients.
State Work Force Regulation Panel -- Wake-up Call
As has been the rule, Sunday afternoon's program included a panel
dealing with state issues. This year, the focus was on a December
1995 Pew Commission report on state work force regulation, which
identified and explored how professional regulation protects public
health and made 10 recommendations for regulatory changes that
could better serve the public interest.
Panel members included David Swankin, Esq., President and
Chief Executive Officer of the Citizens Advocacy Center and a
member of the Pew Work Force Regulation Task Force, James Winn,
M.D., Executive Director of the Federation of State Medical
Boards, and David E. Longnecker, M.D., Chair, Department
of Anesthesia, University of Pennsylvania.
Mr. Swankin, whose nonprofit corporation serves as a training,
research and support network for public members of health care
regulatory and governing boards, highlighted those recommendations
pertinent to scope of practice and competency. One recommendation
suggested that "exclusive scopes of practice that unne-cessarily
restrict other professions from providing competent, effective
and accessible care should be eliminated." The task force
supports a process that allows overlapping responsibilities to
the full extent of the practitioner's training, experience and
skills. Mr. Swankin emphasized that economic factors should not
be the basis for deciding scope of practice and cited the current
anesthesia-related lawsuit in Minnesota as an example of how the
health care system has become embroiled in economic warfare.
Dr. Winn provided the Federation's response to the Pew report
and stated that many state medical boards have already met many
of the report's recommendations, especially calls for standardizing
regulatory terms, redesigning board structures and functions,
and providing public representation. All but two boards across
the nation currently have one or more consumer representatives,
according to Dr. Winn. Concerns about a few of the recommendations,
including lack of outcomes data and valid measures for skills
assessment as well as broadening public disclosure of health care
practitioner information, will be acknowledged by the Federation
in official comments to the Pew Commission.
Dr. Longnecker's long-standing involvement in anesthesiology education
and work force issues provided the basis for his remarks regarding
the report's provisions on the scope of practice issue. Calling
the report a "wake-up call" to every anesthesiologist
across the country, Dr. Longnecker pointed out the critical differences
between anesthesiologists and nurse anesthetists. He also warned
that ignoring the importance that anesthesiologists play in anesthesia
care team outcomes would result in significant patient safety
risks. Recent studies at Dr. Longnecker's facility have shown
that board-certified anesthesiologists are a primary factor in
saving patients from adverse outcomes.
Antitrust Issues
The second panel on Sunday fo-cused on antitrust issues. Edward
A. Geltman, Esq., a partner in the law firm of Squire, Sanders
and Dempsey, explained that in the case of physician groups, complete
integration will permit the partners to perform many acts that
would be violations of the antitrust laws if the physicians maintained
their practices separately. "Physician networks" are
somewhat amorphous, and the antitrust laws will look at all of
the facts and circumstances under the "rule of reason"
to determine the propriety of their conduct.
The enforcement guidelines issued jointly by the Department of
Justice (DOJ) and the Federal Trade Commission (FTC) in 1994 show
what those agencies will consider in determining whether networks
are sufficiently integrated to allow joint pricing. Unless networks
"share substantial financial risk" in the form of capitation
or withhold arrangements, joint pricing will be considered illegal
per se. The only way in which networks not sharing risk could
negotiate with third-party payers would be through the cumbersome
"messenger model," in which a "go-between"
relays individual fee schedules and counter-offers between the
doctors and the insurers.
Even if the shared-risk test is met, networks can be too large
to survive antitrust scrutiny, as was the case for the anesthesiology
and pediatrics networks whose fate at the hands of the DOJ was
reviewed in the Practice Management column of the May 1996 NEWSLETTER.
Prospectively, Mr. Geltman believes that physicians should be
able to demonstrate sufficient integration by making substantial
capital contributions to their joint ventures.
David C. Jordan, Esq., of the DOJ discussed the
enforcement guidelines at length, describing six successive steps
in the agency's analysis of the legality of a given physician
network. He then showed how each of those steps applied to the
Orange County anesthesiologists whose proposed joint venture received
a thumbs-down from the government.
Alan F. Coffey, Esq., General Counsel of the House Judiciary
Committee, provided the legislative perspective. He described
the Antitrust Health Care Advancement Act introduced by Rep. Henry
J. Hyde (R-IL), which would require a rule-of-reason analysis
for all provider groups, not just those that share substantial
financial risk in the form of capitation or withholds. The bill,
which has 119 co-sponsors, was voted out of committee in March;
the committee report is due to be filed shortly. Meanwhile, the
DOJ and FTC do not see the need for any legislation, and the dialogue
continues.
Patient Access to Specialty Care
For the past few years, ASA has been an active participant within
the Patient Access to Specialty Care Coalition (PASCC), a coalition
of more than 100 physician and patient organizations. The final
presenter for the afternoon was Nicholas G. Cavarocchi,
co-Chair of the PASCC. Mr. Cavarocchi explained that the purpose
of the coalition is to combat managed care excesses with legislation
on both the state and federal levels, and he provided videotape
footage of recent television reports on legislation intended to
control such excesses.
The actions of the coalition on the federal level culminated in
a congressional hearing held on May 30 before the House Commerce
Committee health and environment subcommittee. This hearing focused
on the so-called "gag rule," access and choice issues,
and financial incentives offered by managed care organizations.
While admitting that much work remains to be done, Mr. Cavarocchi
noted that the coalition has made the managed care industry backpedal
and enact some patient protections.
"Time and Time Again"
The first speaker on Monday morning was Stephen J. Thomas,
M.D., Chair of the ASA Committee on Economics. Dr. Thomas
reviewed the structure of Medicare reimbursement, including the
differences between payment for surgeons and payment for anesthesiologists.
He also provided conference attendees with an update on the Medicare
Fee Schedule five-year review and other conversion factor update
issues and reviewed the physician work value debate currently
before the American Medical Association/Specialty Society Relative
Value Update Committee (RUC). Finally, he presented the audience
with both sides of the argument concerning the use of time in
anesthesia billing, asking participants to vote informally on
whether the use of time should be retained. The audience's consensus
was to retain the use of actual time.
Congressional Speakers
Throughout the course of Monday's and Tuesday's sessions, the
attendees heard from a dozen congressional speakers. Starting
off the line-up was House Majority Whip Tom DeLay (R-TX).
The third-ranking person in the House Republican leadership, Rep.
DeLay believes that the 104th Congress will ultimately adopt health
insurance reform, succeeding where others have failed. There is
concern that the House bill is too far-reaching, that the bill
should provide for health insurance portability and nothing more,
but according to Rep. DeLay, the House version of the Kassebaum-Kennedy
legislation strikes in the middle of the far-reaching Clinton
bill and the too-narrow Senate bill. He also touched on the issue
of Medicare reform, noting that the Medicare Trust Fund is quickly
going into the red and that congressional action and reform of
the program are needed to save it.
The next congressional speaker was Sen. Trent Lott (R-MS).
At the time, Sen. Lott was the No. 2 member of the Senate Republican
leadership; he has since been elected to the post of Senate Majority
Leader, replacing the departing Sen. Robert Dole. Sen. Lott stressed
the importance of physicians coming to Washington and meeting
with federal legislators. With regard to the pending insurance
legislation, he expressed his support for portability, medical
savings accounts (MSAs) and the medical malpractice provision
contained in the House bill. He lamented that the Senate has not
had the same success as the House in adopting professional liability
reform and encouraged physicians to get active in the campaigns
of those politicians who support such provisions, including "loser
pays" legislation. He also expressed support for the needed
changes in the fraud and abuse provisions of the Kassebaum-Kennedy
bill.
With regard to managed care, Sen. Lott admitted that our entire
health care delivery system is currently being re-evaluated, with
health care maintenance organizations (HMOs) taking up only one
part of the entire debate. While the focus has shifted toward
cost-containment, he said it would remain important to keep abuses
in check, citing undue profiting by insurance companies as one
such area of concern.
The next congressional speaker was Rep. John D. Dingell
(D-MI), ranking minority member on the House Commerce Committee.
Rep. Dingell stressed that the role of Congress, like that of
physicians, should be to do no harm. He was concerned that Congress
would take unnecessary and extreme actions in its efforts to "cure"
the ailing Medicare system. He also noted that while managed care
is not inherently evil, it would be important that the insurance
industry not be given free rein and that quality in our health
care delivery system not be sacrificed. With regard to the pending
insurance legislation, Rep. Dingell expressed support for the
straightforward proposal passed by the Senate and noted his concern
that the House version was too broad.
Later in the day, Sen. Lauch Faircloth (R-NC) addressed
the conference. Sen. Faircloth is a recent appointee to the Senate
Labor and Human Resources Committee. In addition to stating his
strong support for reforming the current welfare system, Sen.
Faircloth expressed his continued interest in assisting ASA on
legislation dealing with nurse anesthetist reimbursement and the
anesthesia conversion factor.
The conference attendees then heard from one of the many retiring
members of Congress, Rep. Pat Williams (D-MT). As
a member of the Economic and Educational Opportunities Committee
(formerly Education and Labor), Rep. Williams was heavily involved
in the health system reform debate in 1994, and he expressed concern
that the opportunity for true reform has come and gone. As a retiring
member, he provided an interesting perspective into the current
Congress; he is clearly disappointed to be leaving without passing
some sort of comprehensive health reform plan.
Also speaking was freshman Rep. Greg Ganske, M.D. (R-IA),
a plastic surgeon in private practice prior to running for Congress
successfully in 1994. Rep. Ganske, who serves on the House Commerce
Committee health and environment subcommittee, has been a strong
supporter of the PASCC and has introduced legislation to fight
against managed care excesses.
The final speaker on Monday afternoon was Rep. David McIntosh
(R-IN) of the House Economic and Educational Opportunities Committee.
Rep. McIntosh expressed his strong support for continued efforts
at tort reform and Food and Drug Administration reform. He is
also supportive of the MSA provision included in the insurance
portability legislation.
Tuesday morning was filled with more visits from the Hill. The
first speaker of the day was Sen. Bill Frist, M.D. (R-TN),
a heart and lung transplant surgeon who was elected in 1994. Sen.
Frist opened his remarks by encouraging all physicians and residents
to get involved in the political process. He also explained in
great detail the need for some sort of reform of the Medicare
program, noting that the providers are always the ones who lose
in the end whenever Medicare reductions are used to reduce the
federal deficit. Only through increased physician involvement
in the process can legislators come to understand the problems
associated with such reimbursement reductions.
Rep. W.J. "Billy" Tauzin (R-LA), a member of
the House Commerce Committee, told the audience that the next
two years would be critical for changing Medicare, Medicaid and
Social Security. He urged the audience to attend town hall meetings
and local political debates to explain the problems of the current
system and to insist that candidates for public office be committed
to making the necessary hard choices. The choices that Rep. Tauzin
would prefer include giving seniors a wide selection of health
plans while cutting spending to limit future intergenerational
warfare.
Sen. Alan K. Simpson (R-WY) of the Senate Finance Committee
began his remarks with the observation that doctors must either
"take part or get taken apart," a comment reprised by
Dr. Ellison in his closing address. Sen. Simpson described and
quantified the need to rein in Social Security and Medicare spending.
One fix that he identified for Medicare was to increase beneficiary
contributions. The Democrats had refused to maintain the beneficiary
share of Part B costs at 31 percent, however, dropping it back
to 25 percent. Together with Sen. J. Robert Kerrey (D-NE), Simpson
was promoting means-testing. He noted that the American Association
of Retired Persons, which remains a formidable opponent of change,
had raised its own group health insurance rates by $32 per month.
Rep. Fortney "Pete" Stark (D-CA), ranking minority
member on the House Ways and Means Committee, reminded the audience
that Medicare is a very efficient system, with overhead costs
of only 2 percent to 4 percent. Rep. Stark said he is wary of
the interest in managed care, having received a growing number
of complaints about denials of care and reductions in services
from his constituents, half of whom belong to Kaiser Permanente
in California. He is also skeptical of tax-advantaged MSAs, which,
he said, would put money in the pockets of the healthy rather
than simply pay for health care services. In a lively question-and-answer
session, he suggested that we should begin to explore a consumption
tax for medical care and that Medicare should be opened up to
children and young adults with no other insurance.
The last member of Congress to speak on Tuesday was Rep. William
M. Thomas (R-CA), Chair of the House Ways and Means health
subcommittee. He indicated that he planned to reintroduce a stand-alone
Medicare reform bill during this Congress, with the support of
House Speaker Newt Gingrich (R-GA). Reforms that he will continue
to seek include limiting medical malpractice awards, establishing
a "knowing and willful" standard of conduct for fraud
and abuse convictions, creating a level antitrust playing field
between provider groups and payers, and introducing MSAs.
Issues Before HCFA
One of the most enlightening speakers of the conference was Kathleen
A. Buto, Associate Administrator for Policy of the Health
Care Financing Administration (HCFA). Ms. Buto touched on a number
of issues of importance to anesthesiologists, the first being
the five-year review of physician work values. She reported that
HCFA has accepted more than 90 percent of the recommendations
submitted by the RUC on the five-year review. With regard to the
review of the evaluation and management codes, she noted that
there were some flaws in the methodology that was used, leading
to a 4-percent increase rather than the RUC-recommended 17-percent
increase for evaluation and management codes.
On the issue of practice expense, Ms. Buto stated that HCFA would
fully move to a resource-based method-ology by January 1, 1998,
without a transition period. She admitted that HCFA may resort
to using proxy data to determine the indirect costs associated
with practice expense.
On the issue of managed care, Ms. Buto explained that currently
about 10 percent of Medicare beneficiaries are enrolled in some
form of HMO or other managed care organization that provides coverage
with no premium and includes prescription benefits. This is a
rapidly growing area for Medicare. The Medicare demonstration
project into managed care has been receiving applications; the
400 applicants have been winnowed down to 25, with 20 of those
25 plans offering a point-of-service option.
Finally, she explained that there is a new Medicare payment method
for HMO payments; HCFA will be using a competitive bidding process
as it enters areas in which Medicare managed care is already well-defined.
For the future of fee-for-service medicine, she explained that
the focus would continue to move toward case management, with
payments often bundled to physicians to encourage the overall
management of the case. This would be particularly true on high-cost
services.
Political Issues Highlighted
For the second year in a row, conference attendees heard a review
of current political data and trends from two respected Washington
pollsters, Celinda Lake and Ed Goeas.
Ms. Lake, President of the Lake Research Group and a Democratic
pollster, noted that the American middle class is concerned with
the economy (and how that relates to employment and health benefits),
crime, eroding values and government reform. She explained that
her recent polls show that voters across the board are cynical,
believing lobbyists to be the most powerful force in Washington,
yet blaming Congress for not getting work done. She noted that
the current election cycle has brought out a record number of
independent candidates, a sign that people of both parties are
fed up with the status quo.
Mr. Goeas, who is with the Tarrance Group, a noted GOP polling
firm, admitted that the Republicans have misplayed a number of
issues this year, most recently the vote on minimum wage. His
poll numbers show that the Republicans can win back voters they
have lost since the 1994 election by working the tax issue and
by downplaying the "family values" themes that have
dominated the last two years. Like Ms. Lake, Mr. Goeas believes
a fundamental debate on the reform and role of government is not
far away due to the growing cynicism among the electorate.
Component Survey Results
Following Monday's lunch, ASA Immediate Past President Bernard
V. Wetchler, M.D., Chair of the ad hoc Committee on Component
Society Relationships, presented the results of a recent component
society survey dealing with states' organizational structure,
membership and recruitment, physician resources and communications
efforts. In recent years, ASA has been questioned by some of its
members on the need to join both ASA and its individual component
societies. There seemed to be a feeling among these members that
the state components were not meeting their needs.
All 49 state component societies completed and returned these
surveys, and the results were interesting, Dr. Wetchler reported.
Fifty percent of the component societies have no state or federal
legislative key contacts; 60 percent have no organized membership
committee, and 90 percent have nothing organized to explain why
membership is a positive step.
ASA is taking steps to assist individual component societies to
expand their scope and activities in an effort to better serve
the needs of its members on a local level.
Capitol Hill Visits
At the conclusion of Tuesday's program, conference attendees
went to Capitol Hill to meet with their individual legislators.
During their visits, these ASA members expressed the Society's
view on various reform issues, including Medicare, managed care
excesses, medical malpractice reform, antitrust relief, and the
fraud and abuse provisions in the pending Kassebaum-Kennedy legislation.
Continued involvement of ASA membership remains the most effective
way to make our concerns known, and all speakers at the conference
emphasized this. It is important to let your senators and representatives
know where you stand on these issues and how your practice and
your patients could be affected by the proposals that are pending
before the House and Senate.
Copies of ASA's position statements on a variety of current legislative
issues are available by contacting the ASA Washington Office at
(202) 289-2222.
RUC, ASA File Comments on Five-Year Proposed Rule
In late June, the RUC met to consider RUC comments on HCFA's
May 3 notice of proposed rule-making with respect to the five-year
refinement of physician work values under the Medicare Fee Schedule.
The draft RUC comments included the recommendation, decided at
the RUC meeting last February, that anesthesiology work values
be increased by an average of 22.76 percent. The RUC reviewed
this recommendation and its supporting narrative and approved
its inclusion in RUC's letter of comment to HCFA, to be filed
in early July.
On July 2, ASA filed its own comments with HCFA. The ASA comments
spoke approvingly of the RUC action but set forth ASA's view that
the intraoperative intensity of anesthesiology work chosen by
the RUC was too low. ASA advocated selection of an intraoperative
intensity that, using the same methodology as approved in the
RUC recommendation, would produce an increase in work value of
somewhat less than 30 percent.
It is expected that HCFA will issue its final rule on the five-year
refinement some time in November, to take effect January 1, 1997.
HCFA Teaching Instructions Revised
On June 21, HCFA notified the ASA Washington Office that it was
revising its teaching instructions for anesthesiologists to bring
the instructions into conformity with HCFA's formal teaching regulations
issued last December.
In its draft of instructions to Medicare carriers, issued at the
end of May, HCFA stated that the teaching anesthesiologist would
be required to remain in the operating room with the resident
for the entire period for which the anesthesiologist charged time.
This instruction was inconsistent with the requirement of the
earlier regulations, that the anesthesiologist be present for
the key portions of the procedure and "immediately available"
for the remainder.
ASA noted that carrier instructions could not be used to change
the terms of regulations that had been subjected to formal rule-making
procedures and that in any event, requiring the teaching physician
to remain with the resident throughout the procedure defeated
the purpose of allowing more senior residents to function independently.
After considering the matter for about two weeks, HCFA advised
ASA that it agreed with the ASA position and that final instructions
would be issued on terms that were consistent with the language
of the regulations. A copy of HCFA's letter, together with ASA's
advice on teaching documentation requirements, was sent by Dr.
Ellison to the chiefs of all anesthesiology teaching programs
on June 24, in anticipation of the July 1 effective date of the
regulations.
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