September 1998
Volume 62 |
Number 9
|
| |
WASHINGTON REPORT
|
| House Passes Managed
Care Bill, Senate Vote Due in September |
Michael Scott, Director
Governmental and Legal Affairs
In a pre-election effort to take political center stage on public
concerns about managed care, the House Republican leadership brought
its patient protection bill (H.R. 4520) to the House floor on
July 24, just a week after its introduction, and squeezed out
a 216-210 affirmative vote. Ten Republicans, including surgeon
Greg Ganske (R-IA), voted against the measure.
The competing Democratic bill (H.R. 3605), sponsored by
Congressman Ganske and Congressman John D. Dingell (D-MI) and
supported by the American Medical Association, narrowly failed
by a 212-217 vote.
To supporters of effective patient protection legislation,
the GOP bill represents a major disappointment. Its provision
on a guaranteed point of service (POS) option - the principal
goal of the Patient Access to Specialty Care Coalition - is written
so as not to apply to self-insured plans protected by the Employee
Retirement Income Security Act (ERISA); these are the same plans
that are insulated from state regulation by the terms of ERISA.
The GOP plan falls short of the terms of H.R. 3547, sponsored
by Congressmen Dave Weldon (R-FL) and Sherrod Brown (D-OH) and
supported by ASA, which, in addition to mandating a POS option
for all plans, would require timely in-network access to medically
necessary services. The GOP bill would mandate in-network direct
access only to obstetricians/gynecologists and pediatricians,
and would not ban payments to gatekeepers as an inducement to
reduce or deny care.
The GOP bill does contain provisions on a number of issues
dealt with in the Weldon/Brown bill, including a prohibition against
gag clauses, a requirement that plans disclose adequate information
to applicants and enrollees, and a mandatory mechanism for appealing
denials of care.
In floor debate, the GOP bill was savaged by Congressman
Ganske and many Democrats who characterized it as a capitulation
to the insurance industry. GOP leaders defended the bill as representing
the best that could be achieved in this Congress, and as providing
for significant expansion of coverage to the uninsured through
its proposed expansion of medical savings accounts and establishment
of pooling opportunities for small employers.
With passage of the GOP bill in the House, the patient
protection debate now moves to the Senate where both a counterpart
to the House Democratic bill (S. 1890) and a Republican Leadership
bill (S. 2330) are now pending. On the issue of POS, the Senate
Republican bill is remarkable in that it requires such an option
in ERISA plans, whereas the House bill excludes those plans from
its POS requirements. The Senate bill, however, exempts small
(2-50 employees) ERISA plans from its mandate.
For supporters of access to specialist care, the Republican
Senate bill appears to offer real opportunity because, although
its coverage is restricted to most ERISA plans, other private
plans can be reached through state legislation. More than 30 states
have already enacted POS requirements for non-ERISA plans.
The Senate recessed at the end of July without taking
up the patient protection bills, and it remains to be seen at
this point whether sufficient time (and GOP leadership commitment)
will remain after the August recess to pass the bill in the Senate
and successfully steer it through conference. President Clinton
has already promised to veto the House-passed bill, and many speculate
that there is little opportunity that a bill, satisfactory to
the President or immune from Presidential veto, can be crafted.
One sideline on the debate is of special interest to ASA
members: The coalition of nonphysician providers failed in their
efforts to gain inclusion of a provision in either the House or
Senate GOP bills barring discrimination on the basis of licensure
by managed care organizations in selection of their provider panels.
This had represented the major reason for their support of Congressman
Charles Norwood's (R-GA) Patient Access to Responsible Care Act
(H.R. 1415). There is some indication that an attempt will be
made to add the provision in conference, when and if one occurs
following the recess.
ASA Files Comments on Medical Direction
As noted in this column in July, the Health Care Financing Administration
(HCFA) on June 5 proposed a number of modifications in its rules
relating to reimbursement for medical direction of nurse anesthetists,
anesthesiologist's assistants and residents. Those modifications,
many of which were based on ASA recommendations, would introduce
somewhat greater flexibility into the existing HCFA requirements
and, for the first time, would provide limited guidance as to
documentation.
Although some ASA members may have filed comments on the
proposed rule directly with HCFA, less than two dozen communications
were received from ASA members in the Washington Office in response
to the invitation by ASA President William D. Owens, M.D., contained
in the President's Update (July 10, 1998). Virtually all
of those comments criticized the proposed easing of the requirement
that the anesthesiologist personally provide the preanesthesia
examination and assessment or postanesthesia care.
Some expressed the concern that elimination of the existing
mandate that the anesthesiologist personally participate in induction
and emergence, as distinct from the proposed more general requirement
that the anesthesiologist participate in the most demanding aspect
of the procedure, would represent an abdication of the anesthesiologist's
role in the provision of anesthesia care. A few criticized the
limited documentation guidance provided by the proposed rule.
ASA's letter of comment, which reflected input by the
ASA Administrative Council and the chairs of three ASA committees,
was filed with HCFA on August 4. A copy of the letter can be obtained
from Marissa Valeri in the Washington Office; excerpts appear
on pages 3-4 of this issue. In essence, the letter argues for
retention of the existing provisions related to the preanesthesia
and postanesthesia phases, and continued reference to induction
and emergence in the requirement related to personal participation.
It also seeks a number of clarifications from HCFA as to its intentions,
including clarification of documentation requirements and the
continued existence of the current limited exceptions to the medical
direction restrictions.
ASA Comments on Medical Direction Proposal
(Excerpts from August 4 Letter to HCFA from ASA President William
D. Owens, M.D.)
Preoperative examination and evaluation. In HCFA's
preamble to the proposed rule, the statement is made that ASA
and the American Association of Nurse Anesthetists (AANA) have
reached consensus on a revised set of medical direction requirements.
This statement is not correct: although the two organizations
reached substantial consensus on several points, limited serious
differences remain.
The principal substantive difference between ASA and AANA
relates to the first condition for medical direction payment.
At our meeting with HCFA officials in February of this year, ASA
supported continuation of the existing requirement that a physician
perform a preanesthetic examination and evaluation. AANA would
have permitted, as an alternative, that the physician ensure that
the examination and evaluation be performed by a qualified licensed
practitioner.
ASA strongly believes that there should never be a permitted
alternative to the physician performing the pre-anesthetic examination
and evaluation. This requirement, as currently prescribed, goes
to the very heart of the physician-individual patient relationship
that the Tax Equity and Fiscal Responsibility Act (TEFRA) requires
as a condition for Part B reimbursement, and represents the basis
upon which all remaining physician anesthesia responsibilities
are defined.
Personal participation in induction. HCFA's new
standards require the anesthesiologist to personally participate
in the most demanding aspects of the anesthesia plan and to specifically
document participation in those aspects. That requirement is drawn
in precisely the terms that ASA recommended, but ASA now believes
- based on comments from its members - that the proposed standard
can be loosely construed as a license not to personally participate
in any aspect of the procedure. ASA doubts that this was HCFA's
intention; it certainly was not ASA's intention.
In order to avoid misunderstanding, ASA recommends that
this requirement be amended to read as follows: "Personally participates
in the most demanding aspects of the anesthesia plan, including,
if applicable, induction and emergence of the patient." Such an
amendment would take account of the absence of induction and/or
emergence in some types of anesthetics, while reaffirming the
requirement of personal participation in these aspects when general
anesthesia is administered.
Postanesthesia care. HCFA proposes to change this
standard by adding the following words to "Provides indicated
postanesthesia care:" "... or ensures that it is provided by a
qualified individual [as specified in operating instructions]."
ASA had recommended this change essentially in recognition of
the very common practice, in many institutions, by which patients
are discharged by resident physicians from the postanesthesia
care unit (PACU), or alternatively by qualified nurses by reference
to a defined scale of patient characteristics (discharge criteria).
Several ASA members have suggested that this proposed
change appears to represent an abdication by the anesthesiologist
of an important medical function, necessarily involving medical
judgment, and that the language of the existing standard is sufficiently
flexible to account for existing accepted PACU discharge practices.
We agree: Inclusion of the word "indicated" in the standard appears
to provide all the flexibility in postanesthesia care as is reasonably
required, and we therefore recommend that no change in this standard
be made.
Exceptions. The proposed rule provides that "The
physician ... does not perform any other services while he or
she is directing the single or concurrent services so that one
or more of the conditions in paragraph (a) (1) of this section
are not violated." The current rule, of course, provides only
that the physician shall not perform "any other services" while
engaged in medical direction. As HCFA knows, however, a number
of limited exceptions to this prohibition were identified in the
preamble to HCFA's final TEFRA regulations, and considerable confusion
has existed over the years whether this list of exceptions was
exclusive or whether other, similar services of short duration
could be performed without violating the medical direction reimbursement
standards.
In light of this confusion, ASA supports the more flexible
language of the proposed rule, which makes clear that other services
can be performed if, and only if, they would not cause the physician
to violate any of the medical direction conditions. Inherent in
this support was the assumption that the existing exceptions would
continue to be permissible under the new rule, as would other
limited services of short duration - again as long as any of these
services could be performed without violating the medical direction
requirements. Confirmation by HCFA of its intention in this respect
would assist our members.
Documentation. The proposed rule for the first
time refers to the documentation necessary to justify reimbursement
for medical direction, permitting the physician to "inclusively"
document satisfaction of the medical direction standards, and
requiring specific documentation of participation in the most
demanding aspects of the anesthesia plan.
ASA interprets this provision as allowing an anesthesiologist
to state in the medical record that the medical direction standards
have been met, without enumerating each such standard, and as
requiring the anesthesiologist to specify in the record those
demanding aspects of the case in which he or she personally participated.
ASA would again appreciate HCFA's confirmation of this interpretation.
return to top
|