ASA Testifies at FTC Hearing on Nonphysician Practice
Barriers
Michael Scott, J.D., Director
Governmental and Legal Affairs
The following is a statement made by Jerome
H. Modell, M.D. on behalf of ASA for the Federal
Trade Commission’s Hearing on Quality and
Consumer Protection; Market Entry — June 10,
2003.
I am Jerome H. Modell, M.D., Professor Emeritus
in the Department of Anesthesiology of the University
of Florida College of Medicine at Gainesville. From
1969 to 2000, I was a Professor of Anesthesiology
in that Department, and chaired the Department from
1969 to 1992. From 1990 until assuming my present
status on January 1, 2001, I served the College
of Medicine in various executive capacities including
Senior Associate Dean for Clinical Affairs, Executive
Associate Dean, and Acting Dean — as well
as the University’s Health Sciences Center
as Associate Vice President for Health Affairs.
Although I retired from the payroll of the University
of Florida at the beginning of 2001, I still work
full time as a volunteer, administering anesthesia
to patients, teaching students and residents in
the Colleges of Medicine and Veterinary Medicine
and acting as an informal consultant to the Dean
of the College of Medicine and Vice President for
Health Affairs.
For the past three decades, I have been extensively
involved as an academician and clinician in the
training of both anesthesiology residents and student
nurse anesthetists. I appear here today as a representative
of the American Society of Anesthesiologists (ASA),
a national medical specialty organization having
some 38,000 members— almost all of them physician
anesthesiologists. I have served ASA in various
committee capacities, including acting as Chair
of its Section on Annual Meeting and the first Chair
of its Committee on Governmental Affairs.
Anesthesiologists either provide or proximately
medically direct the anesthesia care for about nine
out of every 10 of the 30 million surgical procedures
performed each year in the United States. The most
common format for anesthesia practice is the anesthesia
care team mode, under which an anesthesiologist
concurrently medically directs two, or less often
three, nurse anesthetists. Next most common is the
delivery of anesthesia care by an anesthesiologist
one-on-one with the patient – current data
suggest that 30 to 35 percent of all cases are performed
in this manner. Least common, about 10 percent,
are cases in which a nurse anesthetist delivers
anesthesia under the supervision of the operating
practitioner; the bulk of these cases are performed
in rural hospitals.
The national scope of practice conflict between
ASA and the American Association of Nurse Anesthetists
(AANA) has been well publicized. It stems fundamentally
from the AANA’s position that nurse anesthetists
are qualified by their training and experience to
engage independently in the practice of medicine
as it relates to anesthesia care and ASA’s
position that they are not. ASA believes that nurse
anesthetists should be directly supervised by a
physician, preferably an anesthesiologist.
Over the past three decades, this conflict has played
itself out principally in the state legislatures
and health-related state regulatory bodies. It has
also surfaced in the Congress, mainly because the
Medicare rules for hospitals and ambulatory surgical
facilities have — since the inception of that
program — required that a nurse anesthetist
be medically supervised.
Beginning over a decade ago, the AANA embarked upon
an effort to dismantle this quality-oriented federal
requirement, but the AANA effort was derailed two
years ago when the current Administration reversed
the prior Administration’s proposal to repeal
the Medicare supervision rule. Under current Medicare
regulations, physician supervision of nurse anesthetists
is still required. State governors are, however,
permitted to "opt out" of the Medicare
supervision rule after seeking the advice from their
boards of medicine and nursing and after determining
that an opt out is in the best interest of the State’s
citizens.
A nationwide survey and over a dozen state-wide
surveys uniformly disclose that Medicare beneficiaries
support the supervision requirement by a margin
of nearly three to one. Those few governors who
have opted out have essentially opted "in"
to State laws or regulations requiring physician
involvement; several other governors are known to
have considered the "opt out" opportunity
and elected to take no action. Today — aside
from the Medicare rule — about 45 States require
as a matter of State law that nurse anesthetists
be supervised by or collaborate with a physician.
This pattern of required physician involvement exists
because legislators and regulators have determined
that the delivery of anesthetics is sufficiently
dangerous that the involvement of a physician is
necessary in order medically to protect the patient.
No patient is qualified in this highly dangerous
environment to assess either the skills of a proposed
anesthesia provider or to assess the risks, expected
or unexpected, inherent in the administration of
today’s anesthetics.
ASA is proud of the fact that in major part because
of its multi-faceted $20 million patient safety
program, anesthesia-related mortality rates have
dropped radically over the past three decades. When
I was a resident physician in the late 1950s, the
reported anesthesia-related mortality rate was about
one death in every 500 to 2,000 cases; today, depending
upon the relative health of the studied patient
population, anesthesia care is up to 400-fold safer
in terms of mortality. Even the most recent anesthesia
outcomes data, however, show that much remains to
be learned and done; our goal is that no one dies
or is harmed from the administration of anesthesia.
In this context, and well aware that this forum
is organized by an antitrust enforcement agency,
I ask: Who is better qualified than the State legislatures
and health-related regulatory bodies to determine,
on the basis of expert advice from physicians and
other health care experts, the appropriate minimum
standards of anesthesia and other medical care necessary
to protect the citizens of the State?
We are not talking about automobiles or refrigerators
here; we’re talking about the application
of chemical agents which, when administered in sufficient
doses or in the wrong combinations, can kill, permanently
incapacitate or mutilate the patient. The qualified
anesthesia provider must also properly diagnose
and treat medical conditions in the operating room;
in many cases, he or she is providing complex procedures
and therapies to maintain and improve a patient’s
medical condition while concurrently administering
an anesthetic. Many of the medical conditions we
confront are imminent threats to life, such as shock,
heart failure, respiratory insufficiency, adverse
drug reaction, and swelling of the brain.
Has ASA exercised its Noerr-Pennington rights under
the Constitution to persuade these governmental
bodies closely to regulate nurse anesthesia scope
of practice? You bet it has, again and again. We
frankly cringe at the suggestion, implicit in the
description of this hearing, that there is something
wrong or sinister about this activity.
ASA has pursued this course of activity not because
it enjoys a constitutional right to do so, but because
it feels obligated to assure that patients across
the country are delivered the best possible anesthesia
care consistent with the current state of medical
knowledge. ASA feels well-justified in this pursuit
principally because of the differences in qualifications
of anesthesiologists and nurse anesthetists and
because anesthesia outcomes studies have consistently
underscored the importance of anesthesiologist participation
in every possible case.
Under current standards, anesthesiologists must
obtain a bachelor’s degree after four years
of undergraduate pre-med studies emphasizing the
sciences, four years of medical school resulting
in an M.D. or D.O. degree, and a four-year anesthesiology
residency program — for a total of twelve
years. By contrast, nurse anesthetists, under today’s
standards, obtain a bachelor’s degree in nursing
to become a licensed registered nurse and then complete
a two- to three-year nurse anesthesia training program
— for a total of 6 to 7 years. That’s
a difference between the two disciplines of five
to six years of training — and there are many
"grandfathered" nurse anesthetists in
practice today who have had as little as only four
years’ total nursing and anesthesia training
to prepare them to administer anesthetics.
Although the specific differences in training and
clinical experience for the two disciplines are
numerous — both as to depth and subject area
— what nurse anesthetists fundamentally lack
is the comprehensive medical knowledge acquired
by anesthesiologists in medical school prior to
undertaking their anesthesia-specific training and
applying that knowledge in an extended residency
program. The American Association of Nurse Anesthetists
speaks proudly on its Website about the fact that
it costs eight times as much to train an anesthesiologist
as a nurse anesthetist: to me, that fact, if true,
speaks absolute volumes about the relative qualifications
of the two provider types to give the safest, most
comprehensive anesthesia care.
At the core of anesthesia practice is an understanding
of the complex physiologic mechanisms of the human
body in health and disease and how various chemical
agents affect the bodily systems — the cardiovascular,
respiratory and nervous systems to name the most
significant. Anesthesia providers must know how
to deal successfully in a matter of moments with
changes in the patient’s physiologic condition.
That is not the practice of nursing; it is the practice
of medicine — made possible by education as
a physician prior to receiving training in the specialty
of anesthesiology, and then building on that education
during residency.
Not surprisingly, various anesthesia outcomes studies
over the past two decades have demonstrated lower
mortality and morbidity rates when an anesthesiologist
is involved in the patient’s care. A University
of Pennsylvania study reported in July 2000 showed
that after adjustment for patient acuity and hospital
characteristics, there were 25 excess deaths per
10,000 Medicare surgical patients when an anesthesiologist
did not provide or direct the anesthesia care. These
results were very recently essentially replicated
in an outcomes study financed in part by the AANA.
There is a current shortage of anesthesia providers
in this country — both anesthesiologists and
nurse anesthetists. In response to a national survey
conducted last year, one-half of the responding
administrators at hospitals with 100 beds or more
reported a need for additional anesthesiologists.
Almost half of the responding hospitals reported
that they had found it necessary to limit the number
of operating rooms or operating room times due to
a shortage of anesthesia personnel.
In such an environment, the temptation exists to
cut corners, to spread anesthesia personnel —
anesthesiologists and nurse anesthetists —
more thinly. But for better or worse, the margin
for error in anesthesia administration is so fine
that such a course is fraught with danger. It is
no accident, for example, that although Medicare
reimbursement rules permit an anesthesiologist to
medically direct up to four nurse anesthetists concurrently,
CMS data consistently show that the predominant
mode is one to two — even though an anesthesiologist
can generate higher Medicare fees directing three
or four nurses concurrently. The fact is that except
in very unusual situations, it is virtually impossible
to direct, successfully and safely in medical terms,
nurse anesthetists in more than two concurrent rooms.
Contrary to popular belief, ASA has consistently
advocated that the current shortage be solved by
the training not only of more anesthesiologists,
but of nurse anesthetists as well. ASA has repeatedly
taken the position that nurse anesthetists are valuable
members of the anesthesia care team and rather than
erecting barriers to their entry into the marketplace,
has welcomed the training of more of them. Nurse
anesthesia basic education is financed in significant
measure by federal funds; ASA has never called into
question the wisdom of these appropriations. The
ASA Board of Directors has recently recommended
to its House of Delegates that ASA educational membership
be opened to nurse anesthetists — thereby
providing more ready access for those individuals
to ASA’s comprehensive continuing education
programs and assuring that they will become even
more valuable members of the anesthesia care team.
In addition to supporting the training of more nurse
anesthetists, ASA in recent years has supported
the training and licensure of anesthesiologist assistants
(AAs). AAs are health professionals qualified by
advanced education and clinical training to work
under the medical direction of an anesthesiologist.
AA training requires a two-year course of study
following completion of a science-based undergraduate
curriculum, and involves both didactic and clinical
training in anesthesia. Student AAs spend over 2,000
hours in clinical rotations involving more than
500 cases — about the same clinical experience
as is required of student nurse anesthetists. The
two current Master’s degree AA programs, offered
at Emory and Case Western Reserve Universities,
are accredited by the Commission on Education of
the Allied Health Administration Programs.
In recent years, AAs have begun to seek licensure
as a category of health care providers under state
law, rather than practicing as unlicensed providers
under the delegated authority of an anesthesiologist.
ASA has supported these efforts. AAs are currently
licensed in Alabama, Georgia New Mexico, Ohio and
South Carolina, and legislation was recently passed
in Missouri authorizing their licensure. Professional
liability insurance rates charged to AAs and nurse
anesthetists are the same and except that AAs must
be medically directed by an anesthesiologist as
distinct from any other type of physician, ASA advocates
that the scope of practice of the two types of providers
be identical: at a major hospital in Atlanta, AAs
and nurse anesthetists are treated identically,
both in terms of compensation and clinical responsibility.
Likewise, since 1992, the Medicare program has applied
identical rules to both types of providers.
Given the nature of these hearings, it should be
of interest that the AANA and its members have undertaken
a virulent lobbying and public relations campaign
against further recognition of AAs by the states
and federal agencies. This has included the procuring
of congressional letters to the Department of Defense
denigrating AA qualifications to participate, as
proposed by DoD, in the TRICARE program for members
of the military and their dependents; it has further
included the sending of at least 400 letters to
the Department of Veterans Affairs objecting to
the mere mention of AAs in its anesthesia manual,
currently under revision. Two weeks ago, an AANA
advertisement appeared in "Stars and Stripes,"
warning our servicemen and women about the unqualified
AAs about to be forced on them by the Secretary
of Defense.
Perhaps of greater interest are reports from a number
of anesthesiologists in my own State of Florida
that they have received boycott threats from their
employed nurse anesthetists in the event these physicians
support legislation authorizing the licensure of
AAs, or participate in the organization of one or
more AA training programs in Florida. I personally
find it startling, and disappointing, that nurse
anesthetists would pursue so reckless a course,
especially in the face of the severe shortage of
providers in my State.
I am not a lawyer, and I certainly am not schooled
in the antitrust laws. Nor am I a health economist.
Health economists normally salivate over the fact
that reported median earnings of anesthesiologists
are significantly greater than those of nurse anesthetists.
Health economists do not, however, need to focus
on the risks of anesthesia nor the training required
to deal effectively with those risks — and
they are not qualified by their training in economics
to assess the importance to the individual patient
of expert physician involvement in each case.
What I do understand after over 40 years of practice
and teaching are the fundamental ingredients of
sound, safe anesthesia care. If the lawyers and
the economists persuade the Congress and the state
legislatures that the public good is better served
by dismantling the system that currently requires
medical input into every case involving anesthesia
care, it will represent a tragic development for
the nation’s health care system. Until that
time, however, both I and my Society will vigorously
advocate in favor of physician supervision, and
at the same time continue our efforts to make anesthesia
care safer than ever.
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