Parts
1 and 2 of Dr. Musumeci’s comments on Medicare
and the anesthesia shortage appear in the March
2002 and May
2002 NEWSLETTERS.
Many of my colleagues enjoyed Michael Scott’s
“Washington Report” article titled “Professional
Association Boycotts: Primer for a Frustrated Member”
in the December 2002 issue of the ASA NEWSLETTER.
A change of 60 cents per unit one way or another is
indeed irrelevant when Medicare underpays us by about
$30 per unit. Both Mr. Scott and the disgruntled member
made good points. Mr. Scott’s perspective on
the limitations of what ASA can do regarding changing
the Medicare fee schedule becomes obvious if we think
about it carefully. We must accept the fact that ASA
cannot fight this battle for us alone. It is probably
also true that ASA could be more aggressive in its
pursuit of a solution without running afoul of antitrust
laws.
Physicians of many specialties have started to refuse
to accept Medicare patients.1,2
In a survey published by the American Medical Association
(AMA) in September 2002, 24 percent of physicians
sampled said they had either limited the number of
Medicare patients they treat or planned to limit the
number within six months because of reduced reimbursement,
and 17 percent said they currently were not accepting
new Medicare patients. Of the 83 percent that were
still accepting Medicare patients, about a third were
contractually obligated to do so by a hospital or
other organization. A full 42 percent of respondents
said they would no longer participate in Medicare
if physician rates were lowered by 5 percent to 6
percent in 2003.
Despite this national trend, most anesthesiologists
have not begun to refuse Medicare patients for several
reasons. Most hospital contracts require anesthesiology
groups to accept Medicare, and failure to do so can
put practices in jeopardy of losing contracts. In
addition, the public image that would be created by
doctors refusing care to the elderly is problematic.
Last but not least, most anesthesiologists find it
objectionable to refuse care to Medicare patients.
Clearly, the alternatives to accepting Medicare are
distasteful, but an examination of our current state
of affairs suggests that accepting the status quo
is also fairly distasteful.
On average, every anesthesiologist in the United States
pays approximately $80,000 out of pocket per year
to make up the difference for Medicare rate inequities.3
This means that by refusing to bring Medicare reimbursements
more in line with commercial rates, the federal government
is effectively levying an annual tax of $80,000 on
each of us that is above and beyond the 35 percent
to 39 percent that it already takes. To make matters
worse, Medicare pays us 39 percent of commercial rates
while it pays other specialties an average of 76 percent
of their respective commercial rates.4
So our “tax” is considerably higher than
any other medical profession.
Federal legislators are certainly aware of the situation.
I know that many anesthesiologists from my area have
shared this information in detail with our federal
legislators, and others, including ASA representatives,
have made similar appeals to federal legislators on
many occasions. We clearly have no means of effective
recourse since multiple visits to Washington, D.C.,
and multiple appeals for assistance to the AMA/Specialty
Society Relative Value Update Committee and the Centers
for Medicare & Medicaid Services (CMS) have resulted
in another reimbursement cut for 2003.
Given all of this information, it is hard to avoid
the conclusion that the federal government is fully
aware of the fact that it is levying a huge tax upon
us to subsidize care for the elderly and that they
are doing so because it believes that our commitment
to our patients and our contractual obligations to
our hospitals prevent us from doing anything about
it. The government appears to be taking egregious
and blatant advantage of the very commitment to our
patients that make us good physicians because it is
politically expedient for it to do so. It is hard
to imagine a more offensive or demoralizing situation.
It is easy to conclude that while refusing Medicare
patients is distasteful for most of us, the current
situation is even more distasteful and offensive.
It also is easy to conclude that we will continue
to suffer gross unfairness at the hands of the federal
government until we decide to stop enabling it. Federal
legislators have benefited over the last 10 years
by not having to allocate funds for anesthesia care
because we have let them take advantage of us. Until
anesthesiologists take action that will finally make
legislators uncomfortable, they have no real reason
to change.
The fact is that legislators will react if
we refuse to accept Medicare, and anesthesiologists
must thoroughly consider that option. Not accepting
Medicare patients presents considerable challenges
for those in our specialty, but these challenges are
less problematic in the face of a nationwide shortage
of personnel since we are harder to replace than we
otherwise would be. Furthermore, we should not let
responsibility for such an action fall on our community
but rather point out that the federal government is
to blame for refusing to pay reasonable rates. Each
anesthesiologists must decide whether he or she is
individually prepared to take that stand.
Legislators will react to a meaningful court challenge
to the current reimbursement scheme as well, and ASA
should be encouraged to lead such an effort. For example,
an argument might be made that anesthesiologists are
being denied equal protection of the laws in violation
of the 14th Amendment (due process and equal protection).
ASA has made an effective case to CMS that unequal
treatment relative to other specialties clearly exists,
but ASA has been ineffective in correcting this inequity
in the Medicare reimbursement schedule.5
Perhaps it is time to take the next step and initiate
legal action.
Another possibility lies in the premise behind Garelick
v. Sullivan,6 in
which the Second Circuit Court of Appeals ruled against
anesthesiologists in their argument that the federal
government was engaging in a “taking.”
The court ruled against the anesthesiologists because
anesthesiologists were not legally compelled
to either work in a hospital or to provide care to
the elderly; the compulsion, the court said, was only
moral, ethical and financial. Thus, the court seemed
to leave refusing care to the elderly as the only
viable solution, thereby inviting, if not encouraging,
a boycott of Medicare. If we consider the hypothetical
situation in which a large practice (or several small
ones) actually takes the step of refusing to care
for Medicare patients, it appears unlikely that local
government officials could allow that to happen. If
such a situation were to arise, it seems certain that
state attorneys general would be forced to legally
compel anesthesiologists to provide service in order
to protect the health and welfare of elderly citizens.
What would happen to the ruling in Garelick v.
Sullivan once a legal compulsion to
provide care existed?
Whether either of these examples represents grounds
for a viable legal challenge to Medicare reimbursement
is unclear. If we have any hope of changing the current
situation, however, individual anesthesiologists must
be willing to take actions that they would normally
eschew, and ASA must be willing to think more creatively
and aggressively about challenging the federal government.
The barriers to action of this kind are admittedly
large, but each cut in the Medicare rate creates another
group of anesthesiologists who feel just like the
one quoted in Mike Scott’s article. The question
is, how much worse will we have to be treated before
each of us is willing to make a stand?
| References: |
| 1. PR Newswire. AMA survey shows Medicare
payment cuts hurt access to care for America’s
Seniors. September 3, 2002. |
| 2. Medicare Physician Payment Cut Survey.
Research Brief. July 2002. <www.ama-assn.org/ama1/pub/upload/mm/41/julymedpay.pdf>. |
| 3. Musumeci RJ. Medicare and the anesthesia
shortage, part 2: You are doing more than your
fair share. ASA Newsl. 2002; 66(5):21,25. |
| 4. Hannenberg AA. Contracting challenges in
anesthesiology. Medical Group Management Update.
2001; 40(10):7 |
| .5. Five-Year Review of Physician Work Values.
American Society of Anesthesiologists presentation
to American Medical Association/Specialty Society
Relative Value Update Committee. August 2002. |
| 6. Garelick v. Sullivan, 987 F. 2nd
913 (2nd Cir. 1993). |
Editor’s Note: With
the current workforce crisis in both anesthesiology
and nurse anesthesia, Medicare- and Medicaid-dependent
hospitals are in the greatest jeopardy. As anesthesia
providers leave those facilities to seek more fertile
practices, these often-urban, often-inner-city hospitals
will be unable to provide adequate surgical/trauma
care. It seems that this traditional capitalistic
principle of workforce supply and demand may be
more effective and less risky for anesthesiologists.
Why boycott when the inner-city physician exodus
will drive our point home with legislators?
In any event, readers are reminded that the decision
to publish Dr. Musumeci’s lengthy piece as
a guest article, rather than a letter to the editor,
should not be interpreted as an endorsement by ASA
of the views or proposals expressed therein.
— M.J.L.
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Ross J. Musumeci, M.D., is Vice-President, Anesthesia
Associates of Massachusetts, P.C., Westwood,
Massachusetts. |
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