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October 2001
Volume 65 |
Number 10
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WASHINGTON REPORT
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| ASA
Files Comments on Supervision Rule; Survey Shows Seniors Prefer
Bush Plan, 3-1 |
Michael Scott, J.D.,
Director
Governmental and Legal Affairs
Shortly before the close of the 60-day public comment period,
ASA filed its comments on the July 5 proposed Health and Human
Services (HHS) rule maintaining the long-standing Medicare condition
requiring physician supervision of nurse anesthetists. Early this
year, the Clinton administration had published a final rule eliminating
the supervision requirement, but effectiveness of the final rule
has been suspended by HHS Secretary Tommy Thompson until November
14 in order to permit action on the July 5 proposed rule.
In addition to retaining the supervision requirement, the July
5 rule contemplates that a hospital, ambulatory surgical center
or critical access hospital may be exempted from the requirement,
but only if the state in which the institution is located, through
its governor, submits a letter requesting exemption to the Centers
for Medicare & Medicaid Services (CMS). The letter must attest
that the governor has consulted with the state boards of medicine
and nursing about issues related to access to and quality of anesthesia
services in the state, that the exemption (called an “opt-out”)
is consistent with state law and that the governor has concluded
that the opt-out is in the best interest of the citizens of the
state.
The proposed rule also contains a proposal for the federal Agency
for Healthcare Research and Quality to obtain input from CMS and
other stakeholders, and then to design and conduct “a prospective
study or monitoring effort” that assesses the outcomes of
care relating to nurse anesthetist practice and involvement.
ASA’s letter of comment strongly supported finalization
of the July 5 rule, including the proposal to conduct a prospective
outcomes study. At the same time, ASA proposed several clarifying
refinements to the opt-out process, including provisions for public
notice and comment on any opt-out proposal, greater specificity
regarding conformity with state law and advance publication in
the Federal Register of any gubernatorial opt-out action.
The issue of an opt-out’s conformity with state law is a
particularly tricky one because the proposed rule is broadly written.
Most states currently require, as a matter of state law and without
regard to the Medicare supervision standard, that nurse anesthetists
be supervised by or collaborate with a physician. These requirements,
however, derive from the interaction of various state laws and
regulations, and it is important that the opt-out provision be
drawn with sufficient care so that there is no opportunity for
avoiding state supervision or collaboration requirements in the
case of Medicare and Medicaid beneficiaries.
The ASA comment letter also supported the conduct of an anesthesia
outcomes study, noting that maintaining a monitoring effort would
not produce the kind of scientific data that would permit comparison
of safety terms of various modes of delivery of anesthesia care.
In its letter, ASA also drew CMS attention to the results of
a nationwide survey of senior citizens conducted in late August
2001 by the Tarrance Group. The study showed that seniors preferred,
by a margin of 3 to 1, the current Bush administration plan of
maintaining the federal supervision rule while permitting gubernatorial
opt-out in certain circumstances over the Clinton rule that would
eliminate the supervision requirement. The predominant reason
listed for this preference was the fact that the Bush proposal
retains the supervision rule as the basic uniform standard for
delivery of anesthesia care.
ASA received strong support for its position in the form of letters
to CMS from more than 50 Senators and Representatives; many surgical
and medical organizations, including the American Medical Association
and the American College of Surgeons; ASA members nationwide,
including more than 50 former nurse anesthetists now practicing
as anesthesiologists; and thousands of senior citizens and members
of the public.
A final decision on the proposed rule is expected before suspension
of the Clinton rule expires in mid-November.
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Phoenix Rising
As this column is written a week after the September
11 attacks on New York City and Washington, D.C.,
a sea of change has occurred in the congressional
agenda. Major domestic items such as patient protection,
a Medicare drug benefit and protection of the Social
Security surplus have been moved to the back burner
for 2001, and the burner may well have been turned
off to rust. Virtually all public meetings and hearings
on domestic issues have been canceled as have political
fundraisers large and small. Lobbyists shrink from
approaching legislators and regulators on any issue
not directly related to the terrorist threat and the
nation’s response. The President is in charge,
at least for now, and no one publicly (or even privately)
argues with him.
There is a discernable change in the city as well.
The pace of traffic, vehicular and pedestrian, has
slowed almost to a walk — save for the ever-visible,
ever-blaring emergency vehicles and the police helicopters
droning overhead to protect us from our fears. Common
personal courtesy, so often in short supply in this
center of self-important people, is the order of the
day, and our differences seem far less important than
our bonds.
In time, many of these things will inevitably pass,
and we will return to “normal” with perhaps
a fuller and more compassionate perspective than before.
And if your aging author may be permitted a personal
comment by the editor, I see the World Trade Center
in time being rebuilt 10 stories higher than before
and renamed the World Phoenix Center — after
the beautiful bird in Egyptian mythology that was
consumed by fire and arose, reborn, from its own ashes.
One way or the other, we shall overcome.
— M. Scott
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ASA Responds to AANA Objections
The American Association of Nurse Anesthetists (AANA)
generated a major letter-writing campaign among its
membership in opposition to the proposed rule. Reported
here are some of its arguments against the rule, together
with ASA’s brief response.
“The opt-out process is cumbersome.”
Response: The process is no more cumbersome
than any traditional rule-making by a state regulatory
body. The effect of an opt-out is to change the law
applicable to hospitals and/or ambulatory surgical
centers in the state — especially where that
change may involve serious patient safety considerations.
An open process, involving consultation by the governor
with state health care and legal experts and an opportunity
for public comment, is entirely appropriate if not
absolutely necessary.
“Consultation with the board of medicine
allows anesthesiologists to oppose the opt-out.”
Response: It could equally be said that consultation
with the board of nursing allows nurse anesthetists
to support the opt-out. Anesthesiologists no more
control the boards of medicine than nurse anesthetists
control the boards of nursing: We do not think that
the advice to be provided by these respective boards
is all that predictable. Under the opt-out provision,
these boards merely consult with the governor; the
ultimate decision remains with the governor whether
the opt-out is in the best interest of the citizens
of the state.
“Inclusion of the right of a governor
to withdraw an opt-out puts hospital and ASC policies
perpetually in limbo.” Response: First,
if the opt-out procedure is as cumbersome as the nurse
anesthetists claim, it will be no easier to achieve
a withdrawal of an opt-out than to gain one initially.
Second, the opportunity to withdraw an opt-out places
institutions in no greater jeopardy than the possibility
that the legislature can change the law or a regulatory
body can change the applicable regulations.
“States having no provisions related to
supervision of nurse anesthetists should be granted
an immediate waiver.” Response:
Why? Why should these very few states be treated any
differently than the rest? Is it not possible, even
likely, that these states have simply relied on the
existence of the Medicare supervision rule for appropriate
regulation of nurse anesthetists? Governors of these
states should have the same opt-out opportunity as
all others to determine the appropriate action for
that state.
“The current Medicare supervision rule
impedes access to care in rural areas.” Response:
In June 2001, the Medicare Payment Advisory Commission
reported to Congress a “striking similarity”
in access to needed care for urban and rural Medicare
beneficiaries. According to the results of a February
2001 survey of rural hospital administrators, moreover,
the primary limitations on availability of surgery
in rural hospitals are a lack of surgeons and surgical
equipment, not availability of anesthesia personnel.
Finally, it is noteworthy that the current Medicare
rule permits supervision of a nurse anesthetist by
the operating practitioner (who is by definition always
present), making it impossible to conceive how access
is impaired by the rule.
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