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May 2001
Volume 65 |
Number 5
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WASHINGTON REPORT
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| ASA,
AANA Present Opposite Viewpoints on Rollback of Medicare Supervision
Rule |
Michael Scott, Director Governmental and Legal Affairs
As noted in this column last month, Health and Human Services
(HHS) Secretary Tommy Thompson on March 19 published an order
suspending until May 18 the effective date of the Health Care
Financing Administration (HCFA) final rule by which physician
supervision of nurse anesthetists would be eliminated under the
Medicare program. As stated in the order, the purpose of the 60-day
suspension is to permit the Secretary to study the final rule,
which was published by his predecessor at the very end of the
Clinton Administration.
Secretary Thompson's action on the supervision rule is consistent
with other actions he and various federal agency heads have taken
with respect to a large number of final rules published in the
last few days of the Clinton Administration. Some legal commentators
in Washington have questioned the validity of the suspension orders,
but in view of the fact that they are all of short duration, no
legal challenges to the orders have been made to date.
Many legal analysts believe, however, that further suspension
of the effective date of the Clinton final rule after the 60-day
period would not stand up under legal challenge, unless at the
same time the agency in question publishes a proposed rule for
public comment, under which the final rule is to be modified or
rescinded. On April 3, the General Services Administration (GSA)
published a notice suspending until year end a Clinton final rule
related to federal contractor qualifications, and at the same
time published a proposed rule for public comment by which the
final rule would be repealed.
This legal framework essentially means that Secretary Thompson,
on or before May 18, must decide whether he wishes to modify or
roll back the Clinton supervision rule, and if he does, HHS must
publish a notice similar to that published by GSA. For practical
purposes, therefore, the 60-day extension period represents a
critical time for those favoring or opposing the supervision rule
to advance their respective viewpoints to the Administration.
For its part, ASA has met with Secretary Thompson and members
of his staff, various congressional leaders and Administration
representatives in the White House and the Office of Management
and Budget (OMB). ASA has also prepared and distributed an extensive
white paper detailing the reasons why HCFA’s rationale for publishing
the final rule does not meet the test, established by the Supreme
Court, as the proper basis for overturning a longstanding regulatory
provision such as the physician supervision requirement. In essence,
ASA has argued that HCFA offers no scientific outcomes or other
data demonstrating that patient safety would not be impaired by
the rule change, but instead simply chooses to discount the scientific
data pointing in the opposite direction.
Since the Washington legislative conferences of both ASA and
the American Association of Nurse Anesthetists (AANA) are to be
held simultaneously in early May, it seems certain that advocacy
for and against the Clinton rule will intensify leading up to
those conferences. In all likelihood, by the time this column
is published, readers will have received a bulletin or other communication
from ASA President Neil Swissman, M.D., detailing whatever action
is taken by HHS by May 18.
HHS Seeks Comments on Patient Privacy Rule
In a press conference held on March 30, HHS Secretary Thompson
expressed HHS's intention to simplify the new rules, published
late last year and scheduled to take effect April 14, designed
to protect the privacy of patient health information. The rules
had been published pursuant to congressional mandate in the Health
Insurance Portability and Accountability Act of 1996, and were
summarized in this column in the March issue of the NEWSLETTER.
A large volume of public comments on the new rules, responding
to an invitation from HHS after Secretary Thompson was confirmed,
suggested the strong possibility that the effective date of the
privacy standards could be delayed. On April 12, however, President
Bush announced that he had directed Secretary Thompson to place
the rules into effect as originally scheduled. It remains possible
that HHS will propose changes as a result of the comments it has
received.
Scully Nominated New HCFA Head
Thomas A. Scully, former President of the Federation of American
Health Care Systems, has been nominated by President George W.
Bush to serve as the new HCFA Administrator under HHS Secretary
Thompson. Mr. Scully worked at OMB and in the White House during
the previous George Bush Administration and is expected to serve
as the current Administration's principal advocate in connection
with legislation to restructure the Medicare program and develop
a drug benefit for senior citizens.
HHS Proposes User Fee for Nonelectronic Claims
As part of its April 9 budget request, HHS renewed a proposal
to assess Medicare providers a fee of $1.50 for claims not submitted
electronically, and a like amount was charged for each duplicate
or unprocessable claim. Justification for the requirement relates
to HCFA’s effort to modernize its claim-processing operations.
Legislation would be required to authorize the charging of processing
fees. In the past, providers have successfully blocked such legislation
on the basis that smaller practices and institutions do not have
the financial resources to submit claims electronically. At present,
according to HHS, 97 percent of Medicare Part A claims are submitted
electronically, and about 82 percent of Part B claims are submitted
electronically.
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Patient Protection Measure Readied for Introduction
In early April, the staffs of Senators Bill Frist (R-TN),
Jim M. Jeffords (R-VT) and John B. Breaux (D-LA) made a
final draft of their patients’ bill of rights bill available
for limited public review. The bill is widely viewed as
a compromise measure between the two extremes favored by
conservative Republicans and by Democrats and liberal Republicans
in the last Congress.
Representatives of the Patient Access Coalition, of which
ASA was a member last year, report that the draft bill,
with limited exception, contains principles concerning access
to specialist care that the Coalition has aggressively supported
for several years. A controversial provision contained in
the bill, however, would allow States to opt out of the
bill’s requirements if they could establish that premium
costs had risen by a stated percentage. There is some suggestion
that this provision may be dropped before the bill is introduced.
The draft bill would extend its protections to all 167
million Americans covered by private insurance and all fully
insured state or local plans. This coverage provision is
more liberal than that sought by conservative Republicans
last year but does not go far enough to meet the demands
of most Democrats in the Senate. Also unresolved is the
thorny issue of liability of health plans for improper coverage
decisions. President Bush has expressed support for a reasonable
provision in this regard, but specifics are still missing.
On April 11, a presidential health advisor called the draft
bill very promising.
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