Maryland ASCs Win Tax Battle
Maryland ambulatory surgical centers appear to have escaped a plan that would have taxed them for indigent and high-risk patients.

Under the bill, titled the Health Insurance for All Marylanders Act, ASCs as well as hospitals in the state would have had to pay 1 percent of their annual gross revenues to subsidize a health insurance program for low-income and high-risk patients.

The legislators who wrote the bill elected to assess health facilities for the program because of a quirk in the way Maryland regulates health care. The state's Health Services Cost Review Commission sets all reimbursement levels for hospitals. Under the plan, the legislature would have instructed the commission to simply raise reimbursements enough to compensate hospitals for the tax. In this way, the fee would be "passed through" to users of the hospitals services - employers, consumers and insurers, explains a staffer for Michael Busch, the state legislator who authored the bill.

Last month, however, the Maryland legislature dropped ASCs from the bill, thanks to intensive lobbying from the Maryland Ambulatory Surgical Association, or MASA.

To defeat the bill, the association focused on two key issues:

- Fairness.
Though the state sets reimbursement rates for hospitals, it does not do so for ambulatory surgery centers, so ASCs would not automatically receive higher reimbursements to compensate them for the tax. "Surgery centers already work on a very low profit margin - we only collect about 50 percent of our gross billings" according to Lawrence Pinkner, MD, President of the SurgiCenter of Baltimore and past president of MASA. If the legislature wished to simply tax ASCs for some reason, then "why were ASCs the only alternative health care site being taxed - why not birthing centers, urgent-care clinics, and nursing homes?"

- Funding.
The tax on ASCs probably would have amounted to between $1 and $2 million per year, "not enough to make much of a dent in the problem of uninsured care," says Rebecca Reid, executive director of MASA.

"The bill was going to create just another regulatory step that would make it more difficult to do what the state should appreciate - the fact that ASCs provide a cost-saving, high-quality alternative for good healthcare," says Adam Dorin, MD, medical director at the Surgery Center of Chevy Chase.

"Surgery centers that are already fighting to survive did not need this extra challenge."

According to Ms. Reid, there is a chance, albeit a very slim one, that the bill could be amended once again to bring back the tax on ASCs. For now, though, it seems, Maryland ASCs have, in Dr. Pinkner's words, "beaten back the wolves."

State Rulings Restrict Oral Surgeons
Recent rulings in California and Tennessee have essentially halted oral and maxillofacial surgeons from performing certain cosmetic procedures. The rulings affect surgeons with a dental degree, but not those who are also degreed in medicine.

Last month, the California Dental Board set stiff penalties for oral surgeons who perform blepharoblepharoplasties, rhinoplasties, lip enhancements and facelifts. California oral surgeons could be fined $2,500, or charged with criminal misdemeanor or even a felony for performing procedures they say they are qualified to perform.

In an unrelated case, a state judge in Tennessee found that these procedures are outside the scope of practice for oral surgeons, as defined by that state's dental board. Tennessee oral surgeons say the court ruling was based on an outdated definition of oral and maxillofacial surgery, and are seeking to have the dental board revise its definition to reflect current training and capabilities.

"An OMS is trained for four years beyond dental school to perform difficult reconstructions like cleft palates, and to handle even the worst trauma cases. It's illogical to say they aren't qualified to perform cosmetic procedures that are not nearly as difficult," says Carol O'Brien, an attorney and spokesperson for the American Association of Oral and Maxillofacial Surgeons.

The California Dental Board ruling came after a member of the California Medical Board, Robert del Junco, MD, asked the state Department of Consumer Affairs to rule on whether the cosmetic procedures were legally within the OMS scope of practice. The Department of Consumer Affairs and the state Attorney General found the procedures to be illegal for surgeons holding only a dental degree.

Tennessee oral surgeons also have stopped performing cosmetic procedures for now, pending the outcome of their efforts with the state dental board.

"If a surgeon should have an adverse outcome, he could be more vulnerable to malpractice charges in light of this court ruling," notes Nashville oral surgeon Daniel Birchfield, DDS.

As in the California case, oral surgeons report that the Tennessee court case was instigated by plastic surgeons.

"While these procedures don't represent a high percentage of cases handled by the typical OMS, they do represent a potentially important source of revenue for the future," says Ms. O'Brien. "This is most definitely a turf battle instigated by plastic surgeons, who are looking to quash their competition for these elective procedures."

HCFA letter triggers controversy
This summer, some hospitals and ambulatory surgery centers may be able to use Certified Registered Nurse Anesthetists (CRNAs) to administer anesthesia without physician supervision and still receive Medicare reimbursement. That's the indication of a letter from Health Care Financing Administration (HCFA) Administrator Nancy-Ann Min DeParle to Senator Arlen Specter. Ms. DeParle's letter said that the agency is inclined to remove this requirement and instead leave the matter up to state law.

The letter has touched off an intense lobbying battle between anesthesiologists and anesthetists, with CRNAs in favor of the ruling and anesthesiologists staunchly opposed.

Jan Stewart, president of the American Association of Nurse Anesthetists, says, "HCFA's decision supports what the…[AANA] has been saying all along - that CRNAs provide safe, high-quality anesthesia care." The association claims that 65 percent of the 26 million anesthetics given in the US annually are administered by CRNAs. It also claims that CRNAs provide more than two-thirds of the anesthesia given to patients at rural hospitals.

The American Society of Anesthesiologists strongly opposes the proposal. In a prepared statement, Ronald MacKenzie, MD, president of the American Society of Anesthesiologists, said, "it is regrettable that HCFA apparently has an agenda entirely unrelated to patient safety." The Association maintains that many patient injuries have occurred due to lack of physician supervision. For example, just recently, a jury found a CRNA negligent in providing post anesthesia care to a woman rendered brain-damaged after breast implant surgery (the surgery was performed in a California ASC). The patient, who has remained in a vegetative state since her surgery two years ago, was awarded $12.3 million.

The association also cites an unpublished 1994 University of Pennsylvania study that reviewed more than 65,000 Medicare cases in 219 hospitals throughout Pennsylvania. The ASA claims the study indicates that there is a 28 percent increase in the mortality rate and a 21 percent rise in the failure-to-rescue rate when an anesthesiologist did not supervise the nurse anesthetist.

David Longnecker, MD, one of the study authors, feels that statement is misleading. "The study does not…compare anesthesiologists versus nurse anesthetists," he says. However, Philip Weintraub, ASA's public relations manager, insists that it is still relevant, saying that the mortality rate might not have been as high had an anesthesiologist been involved.

For their part, CRNAs cite an article on malpractice data from the National Practitioner Data Bank published in the AANA journal in December 1998. The article says that since 1990, nurse anesthetists sustained only about one seventh the amount of successful malpractice claims as did anesthesiologists.

Mr. Weintraub says the risk-benefit ratio of removing the regulation is poor. "If we [ASA] get our way but are wrong, all that happens is that a trained doctor will still be involved to medically assess the situation before, during, and after a procedure, to offer support. If the reverse is true and the nurses get their way but they are wrong, that can result in the death of patients." John Garde, executive director of AANA, counters that the risk of death from anesthesia is now very low, adding that while "tragedies still occur, they occur with anesthesiologists at the head of the table as well as CRNAs."