October 2000
Volume 64 |
Number 10
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WASHINGTON REPORT
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| Authors
of Anesthesia Outcomes Study Bills Introduce Revised Version;
ASA Endorses |
Michael Scott, Director
Government and Legal Affairs
On September 26, Representatives David Weldon (R-FL) and Gene
Green (D-TX) introduced H.R. 5286, a revised version of their
Safe Seniors Assurance Study Act of 1999 (H.R. 632). A companion
measure is expected to be introduced in the Senate by Senators
Mike DeWine (R-OH) and Harry Reid (D-NV), authors of S. 818, the
companion to H.R. 632.
The revised bill calls for the Health Care Financing Administration
(HCFA) to conduct an anesthesia outcomes study in terms very similar
to the original bill, but also calls for HCFA to maintain "pending
completion of the study" a federal standard requiring that
nurse anesthetists work under anesthesiologist medical direction,
physician supervision or under a written collaboration agreement
with a physician experienced in the administration of anesthesia.
The bill defines medical direction in the same terms as currently
found in HCFA reimbursement rules; supervision is defined as medical
management (there is no definition of the term under existing
HCFA rules); and collaboration is defined as involving a written
agreement between an institutionally credentialed physician (or
group) and a nurse anesthetist. In each case, the collaborating
physician must be experienced in the administration of anesthesia
and must be immediately available to the patient a requirement
that is spelled out today only in HCFA's reimbursement rules for
medical direction.
If the revised Weldon-Green bill is adopted, its tight definition
of collaboration would necessarily be built into HCFA's Conditions
of Participation for hospitals and ambulatory surgical centers
and serve as a model for any state considering the collaboration
approach. At present, those states that have adopted the collaboration
concept for non-Medicare patients rarely define the term.
The bill is designed to attempt to create a middle ground between
the bills supported throughout the 106th Congress by ASA and the
opposing bills supported by the American Association of Nurse
Anesthetists (AANA) calling for HCFA to eliminate the supervision
requirement without regard to the conduct of a study. Because
the revised Weldon-Green bill closely defines collaboration and
assures continued physician participation in all anesthesia procedures,
ASA has endorsed the bill pursuant to authorization of the ASA
Board of Directors last August.
The authors anticipate that the provisions of the bill will
be included in one of the legislative mini-omnibus packages moving
through Congress in the last days of the session – most likely
around October 15. Without question, AANA will vehemently oppose
the revised proposal, just as it has the original Weldon-Green
bill.
Nurse anesthetist advocates are banking on the issuance of HCFA's
proposed final rule by which physician supervision would be eliminated
entirely from federal law, leaving the issue's implementation
to the individual states. HCFA sent its proposed final rule to
the Office of Management and Budget (OMB) on May 31, and despite
enormous pressure by AANA on OMB to approve the rule, that agency
is moving very deliberately on the issue. Many prominent Democrats
in Congress have urged HCFA to delay action on the rule. ASA now
does not expect OMB to consider action on the rule until after
Election Day well after the time that Congress is expected to
adjourn.
President Expresses Support for Seniors' Anesthesia Safety
In an exchange of letters with former Senate
Majority Leader George Mitchell, a member of one of ASA's
legislative firms, President Clinton has expressed his support
for safe anesthesia care for senior citizens. Senator Mitchell
had previously written the President, indicating concern about
the Health Care Financing Administration proposal to eliminate
physician supervision of nurse anesthetists. A copy of the President's
letter which mentions the President's correspondence with Chris
Jennings, Deputy Assistant to the President for Health Policy
Development.
Controversial Pain Relief Bill Set for Senate Floor Debate
In
late August, Senator Don Nickles (R-OK), the Assistant Majority
Leader, announced his intention to bring the Pain Relief Promotion
Act (H.R. 2260) to the Senate floor in September for a debate
and vote. Because the bill contains a prohibition against the
use of federally controlled substances in connection with assisted
suicide, authorized in limited circumstances under Oregon law,
Senator Ron Wyden (D-OR) has promised to filibuster against the
bill.
ASA, the American Medical Association (AMA) and virtually all
provider organizations oppose assisted suicide on ethical grounds;
however, the controversy in the Senate on this issue turns not
so much on individual Senators’ views on assisted suicide but
rather on the appropriateness of Congress seeking to impede a
state decision approved by its voters in two referenda. In a real
sense, the traditional instincts of the two parties are reversed
on this issue with Democrats arguing states' rights and Republicans
supporting federal action.
The debate is overlaid, however, with the tradition of social
conservatives to oppose assisted suicide on ethical or religious
grounds, in contrast to the more permissive attitude on the issue
found among liberal Democrats. A similar example of this split
among Senators can be found in the recent debates over so-called
partial-birth abortion, with Republicans supporting a federal
ban and Democrats, including the President, opposing it.
As a result of Senator Wyden's stated intentions, Senator Nickles
will need 60 votes in order to invoke cloture of debate; this
task was recently made more difficult by the death of Republican
Senator Paul D. Coverdell of Georgia and his replacement by a
Democrat, former Georgia Governor Zell Miller. This change puts
the Republican majority at 54-46. Assuming a vote mostly along
party lines, invocation of cloture is far from a sure thing, and
the result is not currently predictable.
As many ASA members are aware, however, the bill's provision
related to assisted suicide is the source of only part of the
controversy generated by its terms. Of far greater interest to
physicians are the terms of the bill relating to promotion of
pain relief for the terminally ill. Many physicians engaged in
this type of practice have reportedly been reluctant to provide
aggressive treatment through the use of controlled substances
for fear of prosecution by drug enforcement agencies in the event
of a patient's death.
Because of this concern, most physician groups, including ASA,
opposed an earlier form of this legislation considered in the
last Congress.
After extensive consultation with these groups and other provider
agencies concerned with treatment of the terminally ill, the bill
introduced by Senator Nickles in the current Congress contained
a safe harbor, now reflected in H.R. 2260, making it clear that
providers acting to alleviate pain in the usual course of medical
practice will be protected from prosecution under the federal
Controlled Substances Act even if the use of a controlled substance
may increase the risk of death. This protection is buttressed
by a requirement in any prosecution to revoke or suspend a Drug
Enforcement Administration registration in connection with pain
management practice; the government must prove by clear and convincing
evidence a higher than normal prosecutorial standard that the
practitioner's intent was to cause or assist in causing death.
ASA was the first professional society to endorse the new Nickles
bill and was followed by AMA and a host of other provider groups.
But the debate is far from over. In June, the American Cancer
Society (ACS) issued a white paper analyzing the Act and concluded
that it would ban the use of federally controlled substances for
physician-assisted suicide, at the expense of controlling pain
and advancing symptom management. In essence, ACS believes that
the provisions of the Act on pain management do not go far enough
to remove the legitimate concerns of physicians engaged in the
aggressive treatment of pain among the terminally ill. In late
July, ASA President Ronald A. MacKenzie, D.O., wrote the ACS President
and expressed disappointment with the ACS position, especially
since it had not been expressed until very late in development
of the bill.
ASA Washington Office
1101 Vermont Ave. N.W.,
Suite 606
Washington DC 20005
(202) 289-2222
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