May 1999
Volume 63 |
Number 5
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WASHINGTON REPORT
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| Representative
Campbell Introduces Bill to Permit Group Negotiations |
Michael Scott, Director
Governmental and Legal Affairs
On March 25, Congressman Tom Campbell (R-CA) introduced his long-awaited
Quality Health-Care Coalition Act of 1999 (H.R. 1304). Under the
terms of this legislation, health care professionals providing
services covered by a health plan would, in connection with negotiations
with the plan, be entitled to the same treatment under the antitrust
laws as federally recognized employee collective bargaining units.
On introduction, the bill enjoyed 27 co-sponsors, both Republican
and Democrat.
If adopted, the bill would help to "level the playing field"
in negotiations between managed care companies and health care
providers. As noted in the findings of the bill, the exemption
of insurance companies from the federal antitrust laws has led
to increased concentration of purchasing power for health care
services and has given these organizations significant leverage
over health care providers and patients. Authorizing providers
to engage in collective bargaining, without fear of violating
the antitrust laws, would materially change their capacity to
assure reasonable terms for the provision of their services.
Protection of the bill would extend to all health care professionals
without regard to whether they are an employer, independent contractor,
managerial employee or supervisor. Negotiations with respect to
both private and federally insured managed care plans would be
protected. Acts taken in good faith on the terms of the bill would
not be the subject under the antitrust laws of criminal sanctions
nor of any civil damages, fees or penalties beyond actual damages
incurred, that is, trebled damages could not be awarded. Not protected,
however, would be participation in a physician's strike or work
stoppage, unless otherwise permitted by law.
It is safe to predict that the Campbell bill will face significant
opposition, not only from the insurance industry but also from
the federal agencies charged with antitrust enforcement - the
Justice Department and Federal Trade Commission (FTC). Three years
ago, under pressure from organized medicine, these agencies issued
guidelines defining certain "safe harbors" with respect to some
forms of collective activities. These guidelines have proven ineffective,
however, in permitting physicians to engage in collective negotiations
with insurers.
In general, the only physicians today who may negotiate collectively
are those whose practices are economically integrated into a risk-sharing
entity or plan, or those who are employed in a nonsupervisory
capacity by a health plan or other employer. The Justice-FTC guidelines
do authorize a hybrid form of collective negotiation by use of
a "messenger" empowered to communicate offers to buy or offers
to sell services, but the method is cumbersome and seldom used
successfully.
ASA members attending the Legislative Conference on April 26-28
in Washington, D.C., were urged strongly to communicate ASA's
support for the Campbell bill, along with the support of other
medical associations. The bill has been referred to the Judiciary
Committee, which held hearings last year on an earlier version
of the legislation.
Medicare Commission Disbands; Fails to Make Recommendations
After several months of deliberations, the presidentially appointed
National Bipartisan Commission on the Future of Medicare voted
on March 16 to disband without making any recommendations on changes
in the Medicare program.
The only formal vote taken by the commission, which failed for
want of the required supermajority, was on a proposal by Chairmen
John Breaux (D-LA) and William Thomas (R-CA) that a premium support
plan be created, under which Medicare beneficiaries would be permitted
to shop among several health plans offered by private insurers,
with the government contributing a fixed portion of the premium
cost. Among other things, the proposal would have gradually raised
the Medicare eligibility age from 65 to 67, would have merged
existing Medicare Part A and Part B into a single trust fund and
would have eliminated Part A funding of direct medical education
costs, leaving the latter to the annual appropriations process.
Failure of the commission to achieve consensus signals the strong
likelihood that the process of Medicare fundamental reform will
be a slow one, and that the 106th Congress will not find itself
able to agree upon a solution acceptable to the President. This
likelihood was exacerbated by the release of an actuarial report
by the Medicare trustees disclosing that the fund would remain
solvent until at least 2015, seven years later than projected
just last year.
2000 Legislative Conference Rescheduled for March 20-22
Because of an apparent conflict with the anticipated spring
Congressional recess next year, the date of the 2000 Legislative
Conference has been changed from April 17-19 to March 20-22. As
in prior years, the location will be the JW Marriott hotel in
downtown Washington. Reservation of the earlier date provides
greater assurance of the opportunity to meet with individual legislators,
and because the year 2000 is the second year of the 106th Congress,
both the Senate and House should be fully occupied with pre-election
legislative efforts at that time.
Senators DeWine, Reid Introduce Outcome Bill
In mid-April, Senators Mike DeWine (R-OH) and Harry Reid (D-NV)
introduced the Safe Seniors Assurance Study Act of 1999 (S. 818)
in the Senate. Under the bill, the Health Care Financing Administration
(HCFA) would be required to conduct a scientifically based anesthesia
outcome study and consider the results before determining whether
or not to eliminate its current requirement for physician supervision
of nurse anesthetists. Results of the study would be reported
to Congress by June 30, 2000.
The bill is a companion measure to H.R. 632, which bears the
same name, introduced by Representatives David Weldon (R-FL) and
Gene Green (D-TX). Introduction of the Senate bill just prior
to the ASA Legislative Conference provided attendees with a focal
point for meetings with their Senators as well as Representatives.
On December 19, 1997, HCFA proposed - citing a desire to change
its regulatory approach - to amend its requirements for hospitals
and ambulatory surgical facilities and eliminate its current requirement
that nurse anesthetists be supervised by a physician. This proposal
has proven to be enormously controversial: according to HCFA,
more than 30,000 comments were filed on the proposed rule. From
informal statements by staff members, it appears that the agency
has not completed review of the comments it has received on the
proposed rule.
Experienced researchers in the field have estimated that a nationally
valid study would cost about $1.5 million. This relatively modest
cost for a national outcome study results from the fact that it
would derive from a retrospective analysis of existing Medicare
data.
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