CMA Seeks Reversal of Court Ruling Removing Nurse Anesthetists From Physician Supervision and Accountable Care Organizations May Run Afoul of Antitrust Laws

CAL/AAEM News Service calaaem.news.service1 at gmail.com
Thu Feb 17 10:34:02 PST 2011



February 7, 2011
CMA Seeks Reversal of Court Ruling Removing Nurse Anesthetists From Physician Supervision
CMA Alert

The California Medical Association (CMA) and the California Society of Anesthesiologists (CSA) are appealing a court decision that allows nurse anesthetists to administer anesthesia without physician supervision. The appeal raises questions about how to protect patients undergoing surgery and the ability of physicians to provide quality medical care.

In June 2009, Gov. Schwarzenegger exempted California from federal rules requiring physician supervision over nurse anesthetists. Nurses and hospitals hailed the decision as a cost-saving measure, especially in rural counties. The San Francisco Superior Court refused to block the governor's decision in a lawsuit filed by CMA and CSA, ruling last October that Schwarzenegger acted consistently with California law.

The appeal argues California law permits nurse anesthetists to administer anesthesia, but only under physician supervision. CMA and CSA believe surgical patients will receive safer and higher-quality care from physicians, as opposed to unsupervised nurse anesthetists.

"Nurses can be an integral part of a medical team if they work hand in hand with and under the guidance of physicians, as they have for many decades," said James Hinsdale, M.D., president of CMA. "But nurses are not trained to react to the myriad potential complications that can arise in the administration of anesthesia. Patients place thorough trust in their physicians when they must undergo surgery. Requiring physician supervision is one important element of ensuring the best quality of care."
"For the governor and Superior Court to decide for the people of California that it is perfectly safe to remove the medical and physician component from anesthesia care is absolutely irresponsible," said Narendra Trivedi, M.D., president of CSA. "The governor's plan goes against the belief of most practicing physicians that nurses should be supervised by the physician ordering the treatment, in this case anesthesia, and potentially jeopardizes the quality of care that citizens of California will receive."
Schwarzenegger submitted a letter to the Centers for Medicare & Medicaid Services (CMS) requesting that California be allowed to "opt out" of the regulation that physicians directly supervise or administer all anesthesia for Medicare patients. The exemption was requested without input from any professional medical organization and with blatant disregard for state law that requires physician supervision of nurse anesthetists.
Medicare allows hospitals to opt out of the physician supervision regulation, if the governor submits a request to CMS, provided that the governor consults with the state boards of medicine and nursing on issues relating to access and quality, concludes that the change is in the best interests of the state and declares that the action conforms with state law.
Physicians should be aware that despite the exemption, hospitals in California still have the authority to require physician supervision of nurse anesthetists. Hospitals must affirmatively opt out of the supervision requirement. CMS has clearly stated that even in the event an exemption is granted, no hospital would ever be prohibited from requiring physician supervision.
 

 
February 9, 2011
FTC: Accountable Care Organizations May Run Afoul of Antitrust Laws

California Healthline

Accountable care organizations encouraged by the federal health reform law potentially could conflict with federal antitrust laws, according to J. Thomas Rosch, a Republican member of the Federal Trade Commission, the New York Times reports.

Rosch, in recent letters to White House and CMS officials, said ACOs -- in which physicians and hospitals form joint ventures in an attempt to find innovate and cost-efficient ways to deliver care -- could reduce competition and raise consumers' costs without "vigorous antitrust enforcement."

According to the Times, economists and other experts have noted that ACOs have the potential to provide significant efficiencies, but health care providers could be enticed to engage in "monopolistic practices," particularly if they operate in small- and medium-sized communities that have just one or two hospitals or health care systems.

In his letters, Rosch -- an antitrust lawyer for more than 35 years -- wrote that the "Supreme Court long ago prohibited competing providers from jointly contracting to provide their services, except in specified circumstances."

Rosch recommended that the federal government set clear goals for Medicare savings and measure ACOs' performance with respect to both Medicare and the private insurance market. He added, "Otherwise, there will be a real risk that the savings accruing to Medicare will just come at the expense of private insurers."
Letters Reveal 'Struggle' Between FTC, DOJ; Could Slow Development of ACOs
According to the Times, Rosch's letters highlight an apparent "struggle" between FTC and the U.S. Department of Justice over which agency will monitor the market.
Although Rosch noted that the views expressed in the letters were his own, they appear to mirror FTC's views on antitrust laws in the health care industry, as evidenced by previous advisories that the agency has released over the past 15 years, the Times reports. As a result, the uncertainty about enforcement authority could inhibit the formation of ACOs, according to the Times.
Officials at FTC and DOJ, which have historically shared the responsibility of enforcing antitrust laws, are in the process of drafting a joint statement explaining how they intend to evaluate the operations of ACOs, the Times reports.
Further, CMS Administrator Donald Berwick has said that he plans to issue new regulations for ACOs (Pear, New York Times, 2/8).
 
 

 
Anna Parks &
Brian Potts MD, MBA
Managing Editors, CAL/AAEM News Service
University of California, Irvine
 
 
Contact us at: calaaem.news.service1 at gmail.com

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