September 2001
Volume 65 |
Number 9
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WASHINGTON REPORT
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| House Passes Patient
Protection Bill, Sets Up Difficult Conference With Senate |
Michael Scott, J.D., Director
Governmental and Legal Affairs
In its final major action prior to adjournment for the Labor
Day recess, the House of Representatives on August 2 adopted a
patient protection bill after weeks of stalemate, principally
over health maintenance organization (HMO) liability exposure.
Because of strong 11th-hour pressure exerted by President Bush
on the House GOP majority, the bill was much less aggressive in
this regard than either the bill adopted by the House in the 106th
Congress or the bill that passed the Democratically controlled
Senate (S. 1052) two months ago.
In the last analysis, the House action was made possible by the
President’s ability to persuade Representative Charles Norwood
(R-GA) — the premier sponsor of the House counterpart bill
(H.R. 2563) to the Senate-passed bill — to offer a package
of amendments designed to lessen HMO liability concerns while
providing reasonable enforcement tools for patients’ rights.
Mr. Norwood was scorned by his House co-sponsors as having capitulated
to the President, but he responded by emphasizing the need to
pass a bill that the President would sign.
Signaled as a major political victory for the President, the
House action sets up what promises to be a contentious conference
between the congressional bodies. Although most observers here
believe that proponents of the Senate bill would truly like to
find a formula for developing an agreed bill that the President
would sign, it could be tempting to set up the matter as a campaign
issue in 2002.
CMS Modifies CAH Rules for Pre-, Post-Op Exams
Last May, the Centers for Medicare & Medicaid Services (CMS,
then HCFA) issued its annual proposed updates in payment rates
for hospital inpatient services. Two provisions of the proposed
rule were of interest to ASA: first, a proposal to extend the
so-called nurse anesthetist “pass-through” payment system
to include all critical access hospitals (CAHs); and second, to
add nurse anesthetists to the list of anesthesia providers who
could perform the required pre- and postoperative evaluation of
the patient. ASA did not oppose the first proposal but expressed
significant concern about the second.
As to the first issue, it tends to be a little-known fact (except
to rural hospitals and nurse anesthetists) that nurse anesthetists
working at rural institutions performing no more than 500 surgeries
per year can be paid, not under the Medicare Fee Schedule, but
on the basis of the reasonable cost of their services. In most
instances, this latter standard is more generous than the former
and is viewed as an inducement to persuading nurse anesthetists
to work in rural areas. Administrators of CAHs have long sought
to gain this favorable payment system for their institutions,
arguing that for all practical purposes, they have the same characteristics
as rural hospitals.
In its final rule dated August 1, CMS agreed to allow application
of the “pass through” payment method to all CAHs, but
subject to the 500-surgery limit. As noted, ASA did not oppose
this change but instead suggested that there were equal shortages
of physician anesthesiologists in rural areas. CMS took note of
ASA’s comment but noted that the Medicare law permitted the
“pass-through” to apply only to nurse anesthetists’
services.
As to the second issue related to performance of the pre- and
postoperative anesthesia exams, CMS in its May 4 proposed rule
noted that the Medicare conditions for CAHs permitted these exams
essentially to be performed only by a physician. CMS proposed
that the condition be amended to permit nurse anesthetists to
perform the exams.
ASA commented that the CMS proposal was out of line in light
of the May 18 notice by Health and Human Services Secretary Tommy
Thompson further suspending the effectiveness of the Clinton “no
supervision” rule and that CMS should wait until the current
rule-making had been completed. Saying that it did not in any
event intend to eliminate the concept that a nurse anesthetist
may perform the exams only under supervision, HCFA/CMS stated
its intent to finalize the rule.
ASA intends to pursue this issue further with the agency, pending
completion of the current rule-making process.
The public comment period on the rule reinstating physician supervision
closed on September 4; however, members of Congress will continue
to forward their comments to CMS. A decision on the rule is expected
within the next few months.
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