ASA Legislative Conference
to Focus on Host of 2003 Health Issues
Michael Scott, J.D., Director
Governmental and Legal Affairs
Attendees at the annual ASA Legislative Conference,
this year held from May 5 -7 at the J.W. Marriott
Hotel, Washington, D.C., found their plates even
fuller than usual, principally thanks to action
in the House on professional liability, patient
safety and regulatory reform and to introduction
of bills dealing with pain management research and
antitrust reform. Also gaining the attention of
the conferees was the recent estimate by the Centers
for Medicare & Medicaid Services (CMS) that
the January 1, 2004, update for the Medicare Fee
Schedule would be a negative 4.2 percent.
Professional Liability Reform
Debate Moves to the Senate
With passage by the House on March 13 of the Help
Efficient, Accessible, Low-cost, Timely Healthcare
(HEALTH) Act of 2003 (H.R. 5), which was reported
on in this column last month, legislative debate over
federal imposition of professional liability reforms
has now moved to the Senate. Despite strong support
by the president for the terms of H.R. 5, favorable
action by that body (where Republicans hold only a
slim majority and where the trial lawyers’ political
clout is a fact of life) are less than certain. The
need for a 60-vote margin in the Senate means, if
any bill is to pass, that it contain terms that are
less exacting than are contained in H.R. 5.
A principal point of contention is of course the “hard”
(no exceptions) $250,000 cap on noneconomic damages
in the House bill. Even Representative Jim Greenwood
(R-PA), principal author of H.R. 5 and a speaker at
the ASA Legislative Conference, acknowledged shortly
after his bill’s passage that such a provision
could not pass in the Senate. Provisions of H.R. 5
limiting the amount of punitive damages and permissible
attorneys’ fees also are at risk.
The $250,000 hard cap on noneconomic damages is contained
in the only professional liability reform bill to
have been introduced in the Senate at this writing.
That bill, also styled on the HEALTH Act (S. 607),
was introduced on March 12 by Senator John Ensign
(R-NV), also a speaker at the Legislative Conference.
At the same time, however, various sources reported
that Senate Majority Leader Bill Frist (R-TN) was
in discussions with Senator Dianne Feinstein (D-CA)
and other leading Republicans concerning the terms
of a compromise bill containing a larger cap on noneconomic
damages, as well as stated exceptions to the cap in
the event of major injuries.
More recently, however, Senator Feinstein —
citing opposition from the American Medical Association
(AMA) and the California Medical Association to the
larger and “softer” cap — withdrew
from the discussions, dealing at least a temporary
blow to those seeking to find a compromise in the
Senate acceptable to enough Democrats to assure a
60-vote margin. Attendees at the Legislative Conference
were tasked with bringing home to their Senators the
seriousness of the professional liability crisis in
their states, especially in terms of the impact on
their own practices. The conference also included
a mock legislative visit highlighting the arguments
and counterarguments involved in this issue.
Patient Safety Bill Introduced
in Senate
As also reported in this column last month, the House
on March 12 passed the Patient Safety and Quality
Improvement Act (H.R. 663), under which a new voluntary
medical-error reporting system would be established.
Strongly endorsed by ASA and most of the medical community,
the bill would insulate from discovery or Freedom
of Information Act requests any reports of adverse
medical incidents made to Health and Human Services-recognized
“patient safety organizations” dedicated
to quality improvement efforts.
Again, this bill faces an uncertain future in the
Senate, where last year Democrats criticized a similar
House bill as threatening injured parties’ access
to the information necessary to process a claim. On
March 26, Senator James M. Jeffords (I-VT) introduced
a companion bill (S. 720) to H.R. 663. Cosponsors
of S. 720 include Majority Leader Frist; Senator Judd
Gregg (R-NH), Chair of the Health, Education, Labor
and Pensions Committee; and Senator John B. Breaux
(D-LA). The terms of S. 720 are similar but not identical
to the terms of H.R. 663. Most observers believe that
a Senate bill, perhaps giving greater deference to
Democratic concerns without sacrificing confidentiality,
can be crafted in such a way as to gain passage, leading
to a conference resolution of the differences between
the Senate and House bills.
Pain Management Research,
Antitrust Bills Filed in House
In April, Congressman Mike Roberts (R-MI) introduced
the National Pain Care Policy Act of 2003 calling
for creation of the Pain and Palliative Care Research
Center within the National Institutes of Health. The
center would foster research and training on pain
management and would award pain research and education
grants and contracts to health professional schools,
hospitals and other entities. Congressman Rogers was
a speaker at the Legislative Conference, and ASA anticipates
working to gain additional cosponsors for the bill
during 2003 and to press for hearings on the bill
by the Health Subcommittee of the House Committee
on Energy and Commerce.
Antitrust reform legislation, identical to that introduced
in the House last year, was filed on March 5. The
bill, styled the Antitrust Improvements Act of 2003
(H.R. 1120), was sponsored by Congressmen Spencer
Bachus (R-AL) and John Conyers, Jr., (D-MI), both
members of the House Judiciary Committee. A major
provision of the bill would require courts to apply
a “rule of reason” standard to joint negotiations
by a group of physicians with a health plan and to
consider, in addition to the impact on competition,
the impact on patient access to care and quality of
care.
CMS Update Bombshell Renews
Sustainable Growth Rate Formula Criticisms
On March 24, CMS sent a preliminary notification to
the Medicare Payment Advisory Commission (MedPAC)
that the Medicare Fee Schedule update for 2004 would
likely be a negative 4.2 percent. This announcement
came hard on the heels of the Administration’s
decision in mid-February to add $54 billion to the
update formula baseline, a move that CMS Administrator
Thomas Scully had previously predicted would permit
positive updates for some years. The CMS letter drew
attention to the fact that expenditures for physician
services in 2002 had grown by 7 percent (much higher
than anticipated), thereby exceeding the formula target.
At the same time, the increase in the gross domestic
product, another formula limitation, was lower than
expected.
Although CMS will be making additional predictions
on the anticipated update later in 2003 after reviewing
more current data, the announcement caused AMA to
comment that CMS had provided “proof positive”
that the current payment formula must be replaced.
ASA’s policy statement on Medicare reimbursement,
published in connection with the Legislative Conference,
took the same position and renewed the Society’s
call for payment increases based upon increased costs
involved in the delivery of care.
Neither the Senate nor House Budget Resolutions for
FY2004 contain any specific provision for additional
funds targeted for physician services to Medicare
patients. This portends at least as difficult a fight
on the update issue as was experienced with respect
to the 2002 and 2003 updates.
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