November 2001
Volume 65 |
Number 11
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WASHINGTON
REPORT
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| Deadline Approaches for Finalization
of Nurse Anesthetist Supervision Rule |
Michael Scott, J.D., Director
Governmental and Legal Affairs
By the time this column is published, the Centers for Medicare
& Medicaid Services (CMS) will most likely have acted on its
July 5 proposed rule maintaining the long-standing Medicare requirement
that nurse anesthetists be supervised by a physician, while permitting
individual governors to opt institutions out of the rule to an
extent consistent with state law. Unless such action occurs by
November 14, the January 18 final rule of the Clinton administration
— eliminating the supervision requirement — will automatically
go into effect.
Current indications are that CMS is moving expeditiously to consider
public comments on the July 5 proposed rule and to decide whether
to finalize the proposed rule in its original or an amended form.
Possible amendments could include ASA-proposed refinements to
the opt-out process, including the requirement that governors
considering an opt-out give the public notice and an opportunity
to comment on the proposal — a requirement that makes considerable
sense in light of the fact that a governor is required under the
proposed rule to determine that an opt-out is “in the best
interest of the citizens of the state.”
In its comments on the proposed rule, the American Association
of Nurse Anesthetists (AANA) vigorously objected to the opt-out
requirement that the governor consult with the state boards of
medicine and nursing. The AANA claimed that this requirement would
allow physicians to “veto” any opt-out. ASA has responded
by pointing out that the proposed rule requires only that these
boards be consulted and that the governor is thus free to accept
or reject the advice they provide. AANA also proposed that an
automatic opt-out be granted to all states that currently do not
require physician supervision as a matter of state law; ASA has
responded that this step would simply represent placing the Clinton
rule in effect in a different form.
In their comments on the proposed rule, both ASA and AANA supported
the concept of CMS commissioning a prospective anesthesia outcomes
study.
There have been limited indications of an attempt by AANA to
affect the terms of the final rule by seeking congressional action
that would override whatever action CMS decides to take. ASA has
been vigorous in responding to these efforts by pointing out that
the July 5 rule represents an intelligent compromise between the
positions advocated by AANA and ASA over the past four years and
effectively responds to those in Congress who believed that the
supervision issue should ultimately be decided at the state level.
ASA also has acted vigorously over the past few months in familiarizing
gubernatorial staffs across the country with the terms of the
July 5 proposed rule and has alerted component society legislative
representatives to the possibility of opt-out proposals in their
states if the July 5 rule is finalized. An education session for
component representatives was held on October 16 in New Orleans,
Louisiana, in connection with the ASA Annual Meeting.
As soon as the CMS final action becomes known, ASA members will
be advised by e-mail when possible and by an all-member mailing
of a President’s Update.
House Panels Considering Regulatory Relief Proposals
Activated by wide support within the House for the principles
of the Medicare Education and Regulatory Fairness Act (MERFA)
(H.R. 858), subcommittees of both the Ways and Means and Energy
and Commerce Committees are currently engaged in developing legislation
(H.R. 2768 and H.R. 3046) incorporating several MERFA concepts
related to regulatory relief for physicians providing care to
Medicare patients.
At the time of this writing, representatives of organized medicine
are engaged in an intensive lobbying effort to insure inclusion
in any final House bill of appropriate provisions restraining
current Medicare contractor audit abuses, assuring physicians
due process in connection with appeals from overpayment determinations
and requiring that physicians be provided by contractors with
information on which they can legally rely.
Action in the Senate on MERFA-like legislation lags in the House
substantially, but current hope is that an agreed bill can be
developed in the House before the year-end recess with Senate
action projected for next year.
Conversion Factor Concerns Increase
In the past month, concerns have increased among the various
medical specialties about the impact for 2002 of the current Medicare
Fee Schedule update formula, which is tied in part to changes
in the gross domestic product. Specialties are cooperating in
an effort to gain relief from a negative update either from CMS
or Congress. Given the fact that Congress is expected to adjourn
some time between November 1 and the Thanksgiving holidays, efforts
to develop legislation — absent adequate CMS action —
will be a significant undertaking.
ASA is fully involved in this effort, while at the same time
attempting to persuade CMS in its final fee schedule rule for
2002 to significantly increase the value attributed to physician
work performed by anesthesiologists. ASA spent several months
dealing with various subgroups of the AMA-Specialty Society Relative
Value Update Committee (RUC), which advises CMS on fee schedule
matters, but was never able to obtain a firm recommendation to
CMS from the RUC itself.
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