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December 2001
Volume 65 |
Number 12
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| 2001: Not Shoes,
Nor Ships, Nor Sealing Wax |
Michael Scott, J.D., Director
Governmental and Legal Affairs
The December NEWSLETTER offers an appropriate opportunity
to heed the Walrus’ advice to the Carpenter in Alice in Wonderland
— that the time has come to talk of many things. Not only
has the first year of the new millennium brought us an international
conflict of yet unmeasurable proportions, but in many ways, it
may also prove to have been a seminal year for ASA and its members.
I have no special qualification to bring greater understanding
to the cataclysmic international events that have beset us, but
I have found myself this year at ground zero of some events of
more direct consequence to the specialty. Those include not shoes,
nor ships, nor sealing wax but the less lyrical subjects of supervision,
physician work and pain medicine. No alliteration there, but much
substance. A prefatory note, however: The views expressed in the
article are mine and not necessarily the ASA officers or its governing
House of Delegates.
The Bush Rule
In retrospect, one justice of the United States Supreme Court
is responsible for the fact that we may continue to work within
the terms of scientific rationality in addressing the nurse anesthetist
supervision issue. For four long years, ASA had fought the political
forces within the Clinton administration, which was committed
to federal abandonment of the Medicare supervision requirement.
On January 18, with publication of the Clinton final rule, we
had lost. Not only had we failed to change that administration’s
mind on the safety issues inherent in its proposed rule, we had
failed to convince Congress to get involved. We had succeeded
in tying the final rule up at the Office of Management and Budget
for many months, but in the end — the very end — then
Health and Human Services (HHS) Secretary Donna Shalala was able
to break the rule free and into print.
Fortuitously, however, the Supreme Court had decided, by a one-vote
margin, that George W. Bush and not Al Gore had won Florida: I
know, that is not what the court said, but that was the effect
of its decision just the same. And so, on January 20, 2001, a
new day dawned for all opponents, including ASA, of Clinton rules
rushed into print in the final days of the last administration.
In effect, a new judge and jury on the anesthesia safety issue
came to town, both at HHS and in the White House.
What emerged from the Bush administration on the supervision
issue was a compromise. ASA had been arguing for an outcomes study
to be completed before any decision was reached on the federal
rule. The American Association of Nurse Anesthetists (AANA) opposed
any delay and supported turning the issue over to the states without
further scientific analysis. The Bush Administration in its July
5 proposed rule borrowed from both houses, retaining the federal
supervision requirement but giving state governors the choice
to opt-out of the requirement to the extent consistent with state
law.
ASA embraced the proposed rule; AANA opposed the rule, but said
that if the administration decided to finalize it, then an automatic
opt out should be given all states that currently have no supervision
requirement. When you think about that latter proposal (and I
get paid to think about such things), this is simply the Clinton
rule in disguise. Fortunately, the Bush Administration saw through
the disguise and rejected the idea.
AANA publicists have muttered darkly in print about the July
5 rule having resulted from a “political deal” between
ASA and the White House. Leaving entirely aside the fact that
politics for better or worse is what this city is all about (why
else would have ASA and AANA hired all those lobbyists?), a more
accurate characterization of what happened is that our ability
to receive a fair hearing at HHS and the White House was enhanced
by our relatively stronger support than AANA for GOP candidates
in the 2000 and prior elections and by our early support in 2001
for the White House views on patient protection liability issues.
We also were measurably aided by urgings of key Senators and Representatives,
on both sides of the aisle, who believed that a real anesthesia
patient safety issue was at stake and were willing to stand up
and be counted.
Not that politics were not involved in the Clinton administration’s
decision to eliminate supervision, of course. Why else would that
administration in 1999 pluck the nurse anesthetist supervision
issue from a host of other important proposed changes in the originally
proposed 1997 rule and move it alone toward finalization? Why
else would the administration in 1997 say that it was moving from
process-oriented hospital standards to result-oriented standards,
and then finalize a supervision rule in 2001 that gives not the
slightest hint as to what those latter standards are to be? And
why else would the administration, in justification of the final
rule, simply say that its “view” of the importance of
anesthesiologist supervision had changed over the past decade,
without citing any supporting scientific data and instead requiring
that its opponents prove that the rule change was unsafe?
So much for HHS’ statutory responsibility to protect the
health and safety of Medicare beneficiaries. Fortunately for Medicare
patients, the Bush administration adopted a more reasoned approach.
With publication of the final rule on November 13, the supervision
issue now moves to the gubernatorial offices of the various states.
It is not reasonable to assume that governors in those states
where physician participation is not mandated will automatically
seek an opt-out — far from it. A little known fact is that
the Medicare supervision rule predates virtually all state legislation
or regulations on this subject and as a practical matter has set
the minimum standard for all hospitals in this country, no matter
what state law says.
Now state governments must suddenly examine the wisdom of physician
supervision for themselves: What for the states in the past three
decades has been essentially an academic exercise now becomes
directly significant to their resident senior citizens who previously
were protected by the federal rule everywhere. Given the fact
that four out of five surveyed senior citizens have repeatedly
said they want a physician involved in their anesthesia care,
a new political reality emerges at the state level. We anticipate
that the governors, not to speak of the legislatures, will approach
this issue with the political and scientific caution it deserves.
It will not be sufficient, as it has never been sufficient, for
us merely to repeat the mantra, “Anesthesiology is the practice
of medicine.” ASA members may truly believe the truth of
that statement, but in the legislative-regulatory arena, it is
necessary to prove the correctness of that statement in the face
of competing claims by the nurses to the contrary. Nor is it sufficient
merely to rely on the fact that senior citizens want a physician
involved in their anesthesia care, especially when that added
oversight costs them no money. Of course they do, but we must
go further and establish that there is good scientific reason
for them to want that kind of oversight.
My impression from the 2001 Annual Meeting is that the ASA leadership
is prepared to commit resources to help the components deal with
gubernatorial opt-out proposals. That is all well and good, but
we must bear in mind that the supervision issue is now a state
matter, which means that the components are going to be required
to take the lead. In the last analysis, whether the components
are up to that task depends upon whether their members are committed
to supporting them. In other words, the chickens are coming home
to roost. Is the henhouse open and heated?
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“Anesthesiology is the practice of medicine.’
ASA members may truly believe the truth of that statement,
but in the legislative-regulatory arena, it is necessary
to prove the correctness of that statement in the
face of competing claims by the nurses to the contrary.”
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Anesthesia Work Values
Despite our early optimism, this issue of the NEWSLETTER
carries the word that we have failed in our efforts to gain an
increase in anesthesia work values under the 2002 Medicare Fee
Schedule. This, despite the fact that three separate analyses
of anesthesia work — completed at the request of the American
Medical Association (AMA)-Specialty Society Relative Value Update
Committee (RUC) — disclosed that those values are understated
by varying percentages approximating 25 percent.
To understand this result, one must understand the rules under
which ASA was forced to operate. First, and most importantly,
reappraisal of work values under the Fee Schedule is a zero-sum
game. If anesthesia gains an increase in work values, all other
specialties pay the price in the form of decreased work values.
Thomas A. Scully, Centers for Medicare & Medicaid Services
(CMS) Administrator, was recently quoted as saying he loved the
RUC process: “Given the choice of having physicians get in
a room and fight with each other over what should be done or me
get in the room and fight over what should be done, I’ll
always pick them.” RUC decisions are merely advisory to CMS
but, consistent with Administrator Scully’s outlook, CMS
rarely disagrees with RUC.
Second, we must bear in mind that anesthesia work values were
increased by 22.76 percent just five years ago, and then only
after a long and bloody battle within RUC. A fair assumption is
that many current RUC members took this fact into account when
considering a similar increase this time around. Some RUC members
also have the perception, whether fair or unfair, that much of
the anesthesia care teamwork is done by nurse anesthetists and
not by the medically directing anesthesiologist. Along this same
line, we also must remember that anesthesiologists are regularly
reported by AMA and the trade press as among the highest paid
physicians. Those on RUC representing lower paid specialties can
read these reports just as easily as we can, and make their own
individual judgments as to the comparative relative work effort
involved between the two specialties.
Third, we were caught up at CMS in an unanticipated development:
the looming access crisis that could be generated by a projected
negative update in the 2002 Fee Schedule conversion factor (see
the article by Karin Bierstein on page 31). In the face of this
crisis, it simply was not reasonable to expect that CMS would
exacerbate the problem for all other specialties by overriding
the RUC anesthesia recommendation — or more accurately, “no
recommendation” — thereby increasing the negative update
even more.
There is no question but that between the RUC and the CMS staff,
ASA was jerked around pretty badly in the process. As one hurdle
was overcome, another was erected by RUC. CMS positions on various
sub-issues seemed to come and go with the wind. After many months
of this treatment, it simply became clear that no matter what
evidence ASA presented — no matter how compelling —
there was no serious interest abroad in increasing anesthesia
work values.
ASA is aware of considerable anecdotal evidence that increasing
numbers of anesthesiologists are electing to move from, or not
to enter, geographic areas with heavy Medicare populations. Medicare
anesthesia fees represent about 39 percent of private payment
levels; for all physicians, they are more than 76 percent. Most
anesthesiologists work under formal or informal hospital contracts
that compel them to treat all patients who present themselves
in the institution without regard to insurance payer. It takes
no genius to figure out that for some parts of the country, RUC’s
nondecision of anesthesia work values will significantly contribute
to an anesthesia access crisis, a crisis already forming as a
result of previous declines in anesthesia residency positions.
RUC members, though not apparently CMS staff, claim difficulty
in evaluating anesthesia work because the method of anesthesia
reimbursement under the Fee Schedule is different from that of
virtually all other specialties: anesthesiologists and nurse anesthetists
are reimbursed on the basis of complexity (basic) units and time
units multiplied by a conversion factor, whereas other specialties
are reimbursed on the basis of relative value units multiplied
by a different conversion factor. Although it is mathematically
relatively simple to work back and forth between the two systems,
there appears to be an underlying and undying suspicion at RUC
that apples are not being compared to apples.
RUC has appointed a work group to study whether anesthesia reimbursement
can be integrated into the Fee Schedule system applicable to all
other disciplines. This is an enormously complicated subject,
essentially because unlike other physicians, anesthesiologists
do not control the time devoted to a particular procedure, and
a fair system of averaging anesthesia time (which would be necessary
in any integration method) is difficult to conceive. It is worth
noting in passing that Blue Cross/Blue Shield of Michigan, which
a few years ago went to average anesthesia time, recently abandoned
that methodology and returned to the base plus time system. Also
worth noting is the fact that academic centers which traditionally
report longer time periods because of the teaching process almost
certainly could be seriously disadvantaged by a system based on
average time.
The good news on this subject, if there is any, is that CMS has
agreed to pursue the subject of a fair value of anesthesia work
next year; but if it turns out that CMS is willing to move only
on RUC recommendation, revaluation of anesthesia work may have
to wait until the integration concept is further explored at RUC.
Certainly, Administrator Scully’s remarks as quoted above
would suggest that this is the most likely result. Smarter people
than me on the ASA Committee on Economics are wrestling with these
issues, and we must simply hope that they can find a formula for
accommodation with RUC. Never forget, however, that this is a
zero-sum game, no matter what the anesthesia reimbursement methodology.
Pain Management
Over the past year, ASA has been attacked — unfairly I think
— for its perceived lack of attention to pain management
issues under the Medicare program. Most recently, one pain management
group claimed sole credit for the inclusion of nine new codes
on the Medicare-approved list for performance in ambulatory surgical
centers when in fact ASA had been the leader of a coalition for
many months prior to that event directed to the very same end.
The fact is that ASA has been most active on this front, not
only in connection with Medicare treatment of pain procedures,
but as a part of the Current Procedural Terminology™ and
RUC processes by which new codes are defined and valued for Medicare
reimbursement purposes. It is also a fact, however, that ASA must
pay attention to the rules and policies under which all its members
practice, and there is a limit to the human and financial resources
that ASA can commit to reimbursement issues that confront us each
year. In those circumstances, it is almost inevitable that some
subspecialty practitioners, including pain practitioners and some
critical care physicians, may feel that their problems do not
gain the attention they deserve.
For some years, the ASA Committee on Economics has designated
individual committee members to act as liaisons to subspecialty
groups and here in the Washington Office. There is no sense that
certain issues are more important than others. Certainly, because
the vast majority of ASA members continue to provide surgery-related
general or regional anesthesia in the operating room, our expertise
on CMS policies related to that mode of practice is deeper than
for subspecialty efforts, but there is a renewed recognition that
we must be more proactive in the latter realms. This recognition
is both self-generated and a result of directives from the ASA
leadership.
It is perhaps important for subspecialties to bear in mind that
access to decision-makers on all anesthesia-related issues is
facilitated by the fact that ASA has a seat at the table at CPT,
RUC, AMA and, less formally, at CMS and in Congress. We work regularly
with other specialties with which we share common interests on
a variety of legislative and regulatory issues. After AMA, ASA
sponsors the largest political action committee in American medicine,
and we have worked with CMS staff on a host of anesthesia issues
since virtually the inception of the Medicare program. ASA leadership
has made it clear that these resources and opportunities are to
be made available for all disciplines of the practice, and we
expect to honor that commitment.
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Michael
Scott, J.D., oversees the federal, state, regulatory, lobbying
and legal activities in the ASA Washington Office. |
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