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December 2004
Volume 68 |
Number 12
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CMS Issues 2005 Physician Payment
Rule, Defers Action on Teaching Reimbursement
Michael Scott, J.D., Director
Governmental and Legal Affairs
 uring
the ASA 2004 Annual Meeting in Las Vegas, Nevada,
last October, I promised my most faithful reader
of this column —Joseph P. Annis, M.D., of
Austin, Texas — that I would write this, my
last column prior to retirement, in the form of
a retrospective letter to him.
For better or worse, some major events have overtaken
the best of my intentions, so with sincere apologies
to Dr. Annis, I report on current developments,
just as I am actually paid to do.
The most compelling development, of course, is the
clear Republican victory in the national elections
on November 2, with the President achieving re-election
by a startlingly wide margin in the popular vote
and the GOP increasing its majorities in both the
Senate and the House. From ASA’s perspective,
the result was entirely salutary: with only limited
exception, all those incumbents or open-seat congressional
candidates strongly supported by the ASA Political
Action Committee (ASAPAC) were successful, and George
W. Bush was the first presidential candidate to
have been supported by ASAPAC. Details can be found
in the article
by Manuel Bonilla.
What does this result mean for the specialty and
its priorities? Probably the good news is that the
increased Republican majority in the Senate will
potentially make it easier for the President and
Majority Leader Bill Frist (R-TN) to gain passage
of professional liability legislation containing
a reasonable cap on noneconomic damages. On this
issue, it certainly does not hurt that Senators
Thomas A. Daschle (D-SD) and John R. Edwards (D-NC)
will no longer be members of the Senate, but it
also is unreasonable to expect that Democratic opposition
to effective professional liability reform will
simply melt away in 2005.
On the other looming issue for anesthesiologists
and all physicians — the projected decline
in Medicare reimbursement through 2012 unless the
Medicare update formula is redrawn — the picture
is not particularly enhanced by the GOP sweep. This
administration has shown only modest evidence of
being prepared to commit serious additional funds
to physician reimbursement under Medicare, and given
the widening budget deficits, this situation cannot
be expected to change much when the 109th Congress
convenes next January. Much will depend in the last
analysis on the extent to which House Ways and Means
Chairman William M. Thomas (R-CA) adopts a leadership
role, as he has in the past, in forcing the administration
and Congress to ameliorate the pain being unfairly
inflicted on physicians by the terms of the current
update formula.
In this connection, I should also draw to your attention
the fact that, also on November 2, the Centers for
Medicare & Medicaid Services (CMS) released
the 2005 Medicare physician payment rule, providing
as expected for an average increase in physician
reimbursement next January 1 of 1.5 percent —
the increase mandated by the Medicare Modernization
Act of 2003. Without this statutory enactment, physician
reimbursement on average would have been cut by
3.3 percent.
Of more particular interest to the specialty, the
preamble to the 2005 rule stated that, contrary
to ASA’s urgings, the agency was taking no
action to eliminate its current discriminatory treatment
of anesthesiology teaching reimbursement as compared
to teaching in surgery and other high-risk specialties.
Noting that the American Association of Nurse Anesthetists
commented that CMS’ teaching rules “should
not favor one type of provider over another,”
CMS made the following statement:
“Surgical services are paid
differently than anesthesia services. For example,
surgical codes usually have global periods, and
payment includes the payment for the surgical procedure
and postoperative visits during the global period.
Anesthesia services include the preanesthesia examination
and evaluation, the anesthesia service associated
with the surgical service and immediate postanesthesia
care. Currently, the teaching physician’s
presence during the key or critical period criteria
[sic] applies to both the services of the teaching
surgeon and the teaching anesthesiologist. The key
or critical services are different for the service
of each specialty. We plan to explore these issues
further prior to deciding whether to include this
change in the proposed rule for 2006.”
The quoted CMS statement, of course, totally ignores
the fact that its teaching rules allow surgeons
to perform overlapping procedures and be paid a
full fee for each, whereas teaching anesthesiologists
are prohibited from performing overlapping procedures
and receiving a full fee for each.
Although academic anesthesiology departments will
be disappointed by CMS nonaction, there is cause
for optimism to be drawn from the fact that the
CMS discussion does not indicate a justification
for the existing discrimination and expresses the
intention to explore the issue further in 2005.
Without question, ASA will avail itself of this
opportunity.
The good news — if there be any on this issue
— is the fact that, with the President’s
re-election, it will not be necessary for ASA and
the teaching departments to start all over again
to explain this issue to newly appointed CMS personnel,
as would have been the case if Senator Kerry had
won the national election. Also of importance is
that those GOP legislators who have been helpful
to ASA on this issue are all returning to Congress
with a strengthened hand, and several additional
Senate and House members who were strongly supported
by ASAPAC will potentially be available to emphasize
to CMS the inappropriateness of its current discriminatory
policy.
And with that, Dr. Annis and those others of you
who have chosen to read this far, I take my leave
from these ASA NEWSLETTER pages, expressing
at the same time the hope that I have not overstayed
that leave after having hung around for more than
11 years. And to allay Dr. Annis’ stated concern
that I may now drift slowly, quietly into the abyss
of oblivion, I remind him of Dylan Thomas’
oft-quoted injunction: “Do not go gentle into
that good night; Old age should burn and rave at
the close of day; Rage, rage at the dying of the
light.” Raving, Dr. Annis, I am really good
at.
ASA
Offers New Public Policy Fellowship Beginning in 2005
t the ASA 2004 Annual Meeting, the House of Delegates
approved the establishment and initial funding of
a biennial public policy fellowship in Washington,
D.C., beginning in 2005. In the ordinary case, the
fellowship term will run for approximately one year
beginning in September; the fellowship stipend for
the 2005-06 year has been set at $80,000.
It is expected that the fellow will participate in
a supervised training experience in a congressional
or federal executive branch office for the purpose
of gaining an understanding of national health policy
issues and how they are addressed by the nation’s
political system. ASA will assist the successful candidate
in locating an appropriate position in a congressional
office or with the Administration.
The successful candidate will be identified as an
ASA Lansdale Fellow, in honor of Jack Lansdale, Esq.,
longtime ASA legal counsel who passed away in 2003.
In a true sense, Mr. Lansdale was ASA’s first
“lobbyist,” having successfully advocated
to Congress at the outset of the Medicare program
that anesthesiologist services be included as physician
services under Part B rather than identified as hospital
Part A services.
Further particulars concerning the fellow’s
responsibilities and the means by which ASA members
may apply for consideration appear in the “Members
Only” section of the ASA Web site.
11
Years of Staff Service
2004 ASA President Roger
W. Litwiller, M.D., right, presented retiring
Director of Governmental and Legal Affairs Michael
Scott with a commemorative plaque in recognition
of his service to ASA. |
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