Second Congressional
Session Begins, Bush Pushes Senate in Liability Reform
Michael Scott, J.D., Director
Governmental and Legal Affairs
Amid widespread predictions of limited legislative
action prior to adjournment, the second session of
the 108th Congress got under way in mid-January to
receive the President’s State of the Union message
and to complete action on the FY 2003 omnibus spending
bill covering seven of the 13 annual appropriations
measures. Fiscal hawks in the Senate — mainly
but not exclusively Democrats — initially blocked
a vote on the bill, but on January 22, the Senate
concurred on the House-passed omnibus, sending it
to the President for his signature almost four months
after the start of the fiscal year.
ASA members watching President Bush’s January
20 address to Congress certainly noticed his mention
of professional liability reform as one of the Administration’s
legislative objectives for 2004. Perhaps more notably,
on two subsequent occasions in January, the President
repeated his request that Congress act on this issue
before adjournment; and shortly thereafter, Senator
Majority Leader Bill Frist (R-TN) schedule a cloture
vote for February 24 on S. 2061, which would
enact reforms with respect to the delivery of obstetrical
and gynecological services only. ASA, the American
Medical Association and many other specialty societies
supported the bill as an appropriate step toward comprehensive
reform, but ASA expressed concern that the bill did
not clearly cover all physicians providing services
in an obstetrical case. The February 24
cloture vote failed by a wide margin, with only 48
Senators voting in favor. Senator Frist promptly announced
his intention to schedule additional votes this spring
on single-specialty bills, probably next on emergency
care. ASA will continue to seek clarification on any
such bill as to coverage of anesthesia personnel.
Other health issues in various states of pendency
in the current Congress are Medicaid reform, mental
health parity amendments, creation of a confidential
reporting mechanism designed to reduce medical errors
and a ban on genetic discrimination in health plans.
Of these the mental health and medical error bills
appear to have a reasonable chance of passage, subject
always to the caveat that political advantage in the
fall elections will, in the last analysis, dictate
what legislation will move and what will not.
National
Health Spending Reported at $1.6 Trillion
ASA members will be gratified to know that they continue
to be an important part of a major growth industry
in this country.
On January 8, the Centers for Medicare & Medicaid
Services issued a release reporting that in 2002,
national spending on health has risen to $1.6 trillion,
up 9.3 percent from 2001 and 5.7 percentage points
faster than the gross domestic product. For six consecutive
years ending in 2002 (the last year for which data
are available), health care spending has grown at
a faster rate than the year before.
Translated into perhaps more personal terms, spending
on health care in 2002 represented $5,440 for every
man, woman and child in the United States. This represents
almost 15 percent of the gross domestic product.
Growth in hospital spending increased by 9.5 percent
in 2002, rising faster than overall increased expenditures
for the first time since 1991. Expenditures
for physician services (7.7-percent increase), on
the other hand, grew at a lesser rate than 2002 overall
expenditures and at a lesser rate than in 2001.
These data, while interesting and even arresting,
hardly fall in the category of “news I can use”
in daily life. They bode ill, however, for the already-Herculean
effort projected by medicine for 2005 under which
the Medicare Fee Schedule would be revised more accurately
to reflect increases in physician spending, at a probable
cost over 10 years of $120 billion, in addition to
the $267 billion (and growing) annually spent by Medicare.
These difficulties were compounded by the Administration’s
announcement on January 29 that the cost of the recently
passed prescription drug bill was not $400 billion
over 10 years, as estimated by the Congressional Budget
Office immediately prior to passage, but between $530
billion and $540 billion. This announcement enraged
fiscal conservatives in the House who had been assured
by House leadership that the drug bill was fiscally
responsible; it also added credence to Democrats’
claims that the bill was a giveaway to insurers and
drug companies.
National
Databank Proposed to Deter Prescription Abuse
At the initiative of the American Society of Interventional
Pain Physicians, Congressman Edward Whitfield (R-KY)
introduced in 2002 the National All Schedules Prescription
Electronic Reporting Act (NASPER) (H.R. 5503), and
a companion measure (S. 3033) was introduced in the
Senate by then-Senator Tim Hutchinson (R-AR). The
bill called for creation of a national electronic
prescription databank in an effort to deter controlled
substance drug abuse by providing a central source
by which practitioners and pharmacists could determine
whether a particular prescription is duplicative or
otherwise medically unnecessary. The two bills were
referred to committee but went nowhere.
Congressman Whitfield reintroduced the bill in the
current Congress as H.R. 3015, and the bill currently
enjoys 33 cosponsors about evenly split between the
two parties. ASA, at the initiative of its Committee
on Pain Medicine, has written to the Congressman to
express its support for the concept of the bill.
Support for NASPER is not uniform, however. Several
states currently maintain prescription drug registries
either based upon a requirement that a duplicate of
each prescription be filed with a state agency or
by use of an electronic databank. Several of these
states have expressed concern about imposition of
a federal overlay to their systems, and others have
questioned whether the existence of the databank is
worth the cost of maintaining the system. Still other
observers question whether such a system has been
effective as a deterrent to drug abuse and have drawn
attention to the fact that any drug prescription surveillance
system carries the risk of discouraging the medically
appropriate prescription of opioids for pain management.
Early this year, Congressman Charles Norwood (R-GA)
began circulating draft legislation that would appear
to place greater emphasis on the development of state
monitoring systems through the administration of federal
grants. Grant funds would, under the Norwood draft
bill, be raised essentially by a tax on drug manufacturers.
ASA expects to work with the Congressman and other
interested groups to flesh out the concepts of this
somewhat more modest proposal.
Both Congressmen Whitfield and Norwood are members
of the Health Subcommittee of the House Committee
on Energy and Commerce, the committee to which the
NASPER bill was referred on introduction. It is not
unreasonable to expect that their subcommittee would
hold a hearing in 2004 on the various proposals for
developing better data on individual cases of prescription
drug abuse, and ASA expects to join with others in
pressing for such a hearing.
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