May 1998
Volume 62 |
Number 5
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WASHINGTON REPORT
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| Legislators Introduce
Bills to Ban Change in Physician Supervision Rule |
Michael Scott, Director
Governmental and Legal Affairs
ASA's focus on the nurse anesthetist supervision issue has been
so intense over the past few weeks that we almost tend to forget
that Congress is very much in session on other matters and that
the Health Care Financing Administration's (HCFA's) broad regulatory
activities continue apace.
Except for brief mention, therefore, I will leave a discussion
of recent developments with respect to HCFA's proposal to eliminate
its requirement for physician supervision of nurse anesthetists
to the President's Updates and the ASA
Web page postings. As of this writing, the most significant
development was the introduction by Senator Lauch Faircloth (R-NC)
and Representative David Weldon (R-FL) of the Safer Seniors Medical
Care Act of 1998 in the Senate and House, respectively. These
companion bills seek to prohibit HCFA from changing its supervision
rule from what existed on December 31, 1997.
By the time this column appears, ASA members will have
been asked to show their support for S. 1811 and H.R. 3629 by
writing their Senators and Representatives. Also, ASA will have
held a special "Legislative Day" on April 22 to focus that support
on key legislators in both Houses of Congress. The Legislative
Day will have been attended by about 75 ASA key contacts as well
as 12 anesthesiologists who originally trained as nurse anesthetists,
meeting with the leadership and members of those congressional
committees concerned with the HCFA proposal.
The next major event in the process will be the annual
ASA Legislative Conference, to be held at the J.W. Marriott Hotel
from Monday to Wednesday, June 15-17. Component society presidents
were contacted at the end of March and requested to provide lists
of registrants; ASA members seeking to attend should contact their
respective component presidents.
Congress Considers Budget, Managed Care Legislation
Beyond the nurse anesthesia issue, a host of other matters
deserve our attention. I am indebted to Sharon McIlrath of the
American Medical Association (AMA) in Washington, D.C., for the
comprehensive summary of these matters she provided preceding
the recent "Day in Washington" program for the ASA leadership.
The balance of this column borrows liberally from her summary,
providing yet another example of how AMA helps this specialty
in a variety of ways here in Washington.
First, unlike most years, the President's Budget contained
no new proposals to cut or limit physicians' fees under Medicare
and indeed included proposed significant increases in the budgets
of the National Institutes of Health and the Agency for Health
Care Policy and Research. Lurking in the background, however,
is last year's adoption of a new Sustainable Growth Rate (SGR)
update formula for physician fees under Medicare. The SGR holds
increases in spending on physician services to the annual percentage
of increase in the gross domestic product (GDP). The new SGR formula
has been projected to result in cuts in physicians' fees under
Medicare totaling about 11 percent between now and 2002.
AMA has been arguing for an increase in the authorized
growth rate from the currently legislated "GDP plus 0 percent
increase" to GDP plus 2 percent. This argument is based on the
fact that physician spending is already more tightly constrained
than any other provider group and that some sort of additional
allowance must exist to permit technological innovation. It is
not expected, however, that Congress will review the issue in
1998, meaning that the debate will carry over to the 106th Congress.
One element of the Administration's current budget proposal
does merit attention: the item which calls for some $850 million
in savings through the application of Medicare user fees. About
one-third of this amount would be achieved by assessing fees on
physicians, such as a $100 Medicare initial enrollment and $25
re-enrollment fee every five years; a charge of $1 for each submitted
paper claim; and an additional $1 charge for every duplicate or
unprocessable claim. What this is really all about is an effort
to shift a part of the cost of administering the Medicare program
from enrollees and taxpayers to physicians. AMA has been little
short of virulent in its criticism of this proposal, and it remains
to be seen just how far the Administration will go in a year when
it is claiming a budget surplus.
Beyond the budget decisions and the possibility of a tobacco
settlement, the only health issue on which congressional action
is seriously possible in 1998 is the question of whether restraints
on managed care in the private sector should be enacted. This
issue has been the subject of prior columns in 1998, and in a
real sense, the ultimate outcome is no clearer today than it was
a few months ago.
What is clear is that support for Congressman Charles
Norwood's (R-GA) comprehensive bill, H.R. 1415, has substantially
eroded and that if any legislation can gain passage, it must contain
less ambitious restraints. ASA has been prominent in its unwillingness
to support the Norwood bill, essentially because of a dangerously
ambiguous nondiscrimination clause concerning participation in
managed care networks. Instead ASA has supported efforts by the
Patient Access to Specialty Care Coalition to gain introduction
of a more modest proposal.
The Coalition's efforts were rewarded on March 25 when
Congressmen David Weldon (R-FL) and Sherrod Brown (D-OH) introduced
H.R. 3547, the Patient Choice and Access to Quality Health Care
Act of 1998. The bill contains the fundamental principles supported
by the Coalition, including access to necessary out-of-network
care if the plan's network cannot provide such care; prohibition
against financial incentives to deny care; description, in plain
English, of the plan's features and performance; ready access
to specialist care; right to a speedy appeal from denial of treatment;
and prohibition against "gag clauses."
Introduction of the Weldon-Brown bill puts its sponsors
and the bill's supporting organizations in a position to be "players"
as the issue of managed care legislative restraints plays out
in the weeks ahead. At this writing, both Republican and Democratic
health leadership groups were planning to introduce their own
proposals, but there is really no indication that a bill can be
moved to the House floor, let alone passed, in the few legislative
days that remain. Passage of a bill in the Senate is even more
improbable, but if by chance the two houses should agree on legislation,
even a modest bill may, as a political matter in an election year,
draw a Presidential veto as not being tough enough.
HCFA Drafts Practice Expense Rule, Extends Deadlines
By the time this column appears, publication of the long-awaited
HCFA proposed rule on allocation of practice expenses, due at
the end of May, will be imminent. ASA does not anticipate major
changes from the draft proposal issued by HCFA last year, which
would have resulted in only modest changes to practice expenses
for the specialty. It is entirely possible, however, that HCFA
will offer two or three calculation methods and seek further public
comment on the choices among them. What seems almost certain is
that all proposed methods will result in substantial decreases
in practice expenses attributable to surgical procedures over
the four-year transition period which begins next January 1. A
further report on the proposed rule will appear in next month's
"Washington Report" column, assuming HCFA releases the rule on
time.
Organized medicine won a significant victory in early
March when HCFA agreed to a 60-day extension in the comment period
on the "Stark II" self-referral regulations. The proposed regulations
are exceedingly complex, but fortunately they appear to have little
impact on anesthesiologists who rarely have the opportunity to
engage in self-referral. In any event, it is anticipated that
further statutory changes will be considered in the next Congress.
Even Congressman Fortney "Pete" Stark (D-CA), original author
of the self-referral legislation, has expressed concern about
the scope of the regulations. Many Republicans in Congress would
simply favor repeal of the statute.
Also recently extended by HCFA was the date for implementation
of the so-called evaluation and management, or "E&M," documentation
guidelines. The new date is July 1, and there is some likelihood
that the date will be extended even further. HCFA was responding
to the storm of complaints from physicians that the guidelines
were too complex and detailed and would lead to absurd practice
patterns if interpreted literally. Anesthesiologists engaged in
a pain management practice would be particularly affected by the
guidelines. ASA participated in a major AMA workshop on April
27 designed to make the guidelines easier to use through development
of practice templates.
Legislative Conference to Be Held June 15-17
This year, ASA's annual Washington Legislative Conference will
be held Monday through Wednesday, June 15-17, at the J.W. Marriott
Hotel, Washington, D.C. As always, the program will include knowledgeable
speakers from both the government and private sectors and will
focus on legislative and regulatory issues of greatest interest
to the specialty. One morning is reserved for congressional visits.
Reservations may only be made through the individual component
societies.
APSF Executive Committee Writes to HCFA
In addition to the individual letters submitted in recent
months to Nancy-Ann Min DeParle, Administrator of the Health Care
Financing Administration (HCFA), several prominent anesthesiology
organizations also have written against HCFA's proposed rule change.
Most notable is this letter from the Anesthesia Patient Safety
Foundation (APSF), challenging the wisdom of eliminating physician
supervision of nurse anesthetists from the perspective of patient
safety. Since its incorporation in 1985, the APSF has functioned
as an independent advocate and sponsor of practices and policies
that are intended to assure that all patients experience a safe
anesthetic.
Dear Ms. DeParle:
The Executive Committee of the Anesthesia Patient Safety
Foundation (APSF) wishes to strongly express its collective opposition
to the Health Care Financing Administration's (HCFA) proposed
rule to eliminate physician supervision of nurse anesthetists.
In 1992, HCFA publicly stated that "in consideration of the
risks associated with anesthesia procedures, we believe it would
not be appropriate to allow anesthesia administration by a nonphysician
anesthetist unless under the supervision of either an anesthesiologist
or the operating practitioner." This practice of supervising
nonphysician anesthetists has evolved over many years directed
toward optimizing patient safety. There are no data to judge the
extent to which the current level of safety experienced by patients
depends on this supervision.
A basic tenet of medicine is "first do no harm."
Administration of anesthesia is a high risk activity. Prior to
making any change in the existing supervision requirement, the
burden of proof must be based on definitive evidence that
this change is safe. No such evidence exists! If
the proposed rule is enacted in the absence of evidence that the
change in practice is safe, HCFA will have set a dangerous precedent
by having shifted the burden of proof in the wrong direction.
Such a shift in the burden of proof was a key factor in
the ill-fated decisions leading to the space shuttle Challenger
disaster. Health care should learn from this catastrophe by demanding
evidence that the safety of patients is preserved whenever substantive
changes are introduced in systems with known risks of death and
serious injury from medical interventions.
The Executive Committee of the APSF most strongly urges
that HCFA not enact the proposed rule change.
Sincerely,
Robert K. Stoelting, M.D.
President |
Robert A. Caplan, M.D.
Member at Large |
Burton A. Dole, Jr.
Vice-President |
Robert C. Black
Member at Large |
David M. Gaba, M.D.
Secretary |
Robert A. Caplan, M.D.
Member at Large |
Casey D. Blitt, M.D.
Treasurer |
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