Court Denies State Law Claims
Against HMOs,
Passage of Patients’ Bill of Rights Again
Sought
Michael Scott, J.D., Director
Governmental and Legal Affairs
ust
prior to leaving Washington for the conventions
and the August recess, the Senate — eight
months after the bill had been favorably reported
by its Health, Education, Labor and Pensions Committee
— finally got around to passing patient safety
legislation similar to that which passed the House
(H.R. 663) with only six dissenting votes in the
early days of the 108th Congress. The Senate has
already appointed conferees, and a conference is
expected shortly after Congress returns on September
7.
Although the two bills differ in numerous details,
the basic concept is the same: a mechanism is created
by which physicians and other health care providers
can confidentially report medical errors to federally
certified public or private “patient safety
organizations” (PSOs) whose task is to analyze
such reports and issue advisories designed to lower
the incidence of errors. Each bill contains provisions
designed to ensure that the new regimen will not
interfere with the traditional right of patients
and their attorneys to gain discovery of information
potentially relating to the existence of negligent
care; it was the definition of this right that essentially
held up Senate floor consideration of the legislation
for several months.
Both bills contemplate that the Department of Health
and Human Services (HHS) will issue regulations
pursuant to which applications may be made for recognition
as a PSO. The terms of both bills, however, suggest
that qualifications will be relatively exacting,
and maintenance of status as a PSO will not be without
significant expense. A question arises, therefore,
as to the extent to which HHS will receive applications
from private organizations, not to speak of the
ongoing question as to whether health care providers
will in fact be prepared to file reports of errors.
The legislation has been strongly supported by organized
medicine, including ASA, which is recognized as
a leader in its patient safety initiatives. It appears,
however, that there will be much work to do, as
HHS develops implementing regulations, to assure
that the new program will ultimately produce valuable
patient safety data.
CMS
Sets 2005 1.5-Percent Increase
In late July, the Centers for Medicare & Medicaid
Services (CMS) issued its proposed physician payment
rule for calendar year 2005. As required by the
terms of the Medicare Modernization Act of 2003,
the rule contemplates a 1.5-percent increase in
physician reimbursement under the Medicare Fee Schedule
for 2005. Absent provisions of the act, physicians
would have experienced an estimated 3.7-percent
cut in reimbursement next year. Operation of the
Medicare update formula will produce ongoing cuts
from 2006 until 2012 unless Congress acts again
next year.
FTC,
Department of Justice Publish Report on Competition
n late July, after two years of hearings, the Federal
Trade Commission and the Department of Justice published
“Improving Health Care: A Dose of Competition,”
a joint study of the current role of competition
in health care and how those two agencies can work
to protect competition in the health care marketplace.
The comprehensive 371-page report covers all players
in the marketplace, including physicians, hospitals,
insurers, drug makers and governmental entities.
Of particular interest to ASA members, the report
concludes — not surprisingly in light of the
authorship — that granting of collective bargaining
rights to physicians would result in increased costs
without a demonstrable improvement in quality. ASA,
along with the American Medical Association and
numerous state and specialty organizations, has
supported legislation in the past two Congresses
that would grant physicians, under limited circumstances,
the right to bargain collectively; federal antitrust
agencies consistently have opposed the legislation.
ASA was among those organizations invited to testify
at the joint hearing organized in July 2003 to deal
with restrictions on allied health providers (AHP).
The Society was represented by Jerome H. Modell,
M.D., Professor Emeritus in Anesthesiology at the
University of Florida College of Medicine, Gainesville,
Florida. Dr. Modell’s testimony reviewed ASA’s
aggressive posture in advocating on scope-of-practice
issues before legislative and regulatory bodies
under the so-called Noerr-Pennington doctrine.
Of interest the FTC/Department of Justice final
report does not attempt to denigrate this doctrine
— under which petitioning of the government
is deemed constitutionally protected — and
merely refers to some cases in which the doctrine
was not applied to protect nonadvocating speech.
The final report expressed concern that because
state licensing boards consist of practitioners
with a vested interest in restricting AHP access,
consumer interests may be impaired by the limits
on competition. The report recommends that membership
on licensing boards should be increased to include
representatives of the public and other individuals
from outside the licensed occupation.
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