Anesthesia rule change could mean trouble
Cost-cutting option may prove too expensive
A proposed change in the supervision requirements for anesthesia providers could represent a substantial liability risk, say risk managers and anesthesia professionals. Other hospital administrators may see the rule change as an opportunity to cut costs, but risk managers probably should take a hard line and insist that nurse anesthetists continue to be supervised by a physician.
The issue arises because the Health Care Financing Administration (HCFA) has proposed a rule change that would mean hospitals and ambulatory surgery centers would no longer have to require physician supervision of certified registered nurse anesthetists (CRNAs) to receive Medicare reimbursement. The rule change would not prohibit physician supervision, but current Medicare rules require such supervision in order to be eligible for reimbursement.
Many nurse anesthetists are hailing the proposed rule change as the removal of an unnecessary administrative requirement that will have no detrimental effect on patient care. Others, however, say the change would be a threat to patient safety and therefore represent an increased liability risk to health care providers.
HCFA's requirements, or lack thereof, would not override any state laws that require physician supervision of CRNAs. But 29 states do not require physician supervision of CRNAs, so not needing physician supervision for Medicare reimbursement could have a major impact on health care providers' decisions in those states. HCFA recently closed its comment period on the proposed rule change, but there is no date by which a final decision is expected. Those on both sides of the issue say they expect the rule to be changed.
One provider in a position to analyze the situation is A. Terry Walman, MD, JD, both a practicing anesthesiologist and attorney in Annapolis, MD. He also is a member of the faculty at The Johns Hopkins University School of Medicine in Baltimore. He tells Healthcare Risk Management that "there is cause for alarm here."
Walman says he holds CRNAs in high regard and agrees they have a role in health care. But that doesn't mean they should be able to practice solo, he says.
"Anesthesiologists have superior training that exceeds the training of a nurse. There isn't any comparison, " he says. "The CRNAs usually give very good care to patients, but when it comes down to making good clinical decisions, there's no substitute for a physician."
Part of the problem, Walman says, is that there would be two levels of care provided to patients. The level of care is arguably the same whether provided by a CRNA or anesthesiologist, as long as the CRNA is supervised by an anesthesiologist or other physician. (Ideally, the supervising physician should be an anesthesiologist, Walman says, but surgeons and other physicians sometimes supervise a CRNA in surgery centers and similar settings.) Walman contends that the patient of an unsupervised CRNA would not receive the same level of care, even though the standard of care remains the same.
"The standard of care is always the same, and the nurse anesthetist would have to maintain the same standard of care as a physician," he says. "That's where the problem comes in. The level of training becomes crucial in difficult situations."
Most anesthesia administration goes off without a hitch, "but when it comes to that one bad case, and you're in litigation, it will be difficult to say that the nurse met the standard of care."
The health care community should be moving in the other direction, Walman says, requiring CRNAs to be supervised by an anesthesiologist instead of just any physician, rather than loosening the supervision requirements.
Margaret Douglass, a risk management consultant with FPIC in Annapolis, MD, agrees that hospitals would be establishing a dual level of care if they went along with HCFA's rule change. She calls such an arrangement "financial discrimination" in which some patients get a nurse anesthetist and some get an anesthesiologist, both supposedly providing the same care. That's a prescription for disaster, she says.
"I really hope hospitals wouldn't do that," she says. "When you're letting dollar signs determine who is going to provide care and how it's provided, there is so much potential for trouble. If you have a bad outcome, a plaintiff's attorney could just have a wonderful time looking at why that patient got a nurse instead of a doctor."
The issue can be compared to the way midwives provide obstetrical care, Douglass says. Although there's a role for midwives, they must be supervised by a physician. Most risk managers would be aghast at the idea of letting a midwife practice independently in a hospital without physician supervision or sponsorship, and she says the same reaction is appropriate with nurse anesthetists.
"I can certainly see the risk for exposure," she says. "I dare say you'd be hard pressed with a bad outcome if you tried to say that the government doesn't require supervision, so you didn't, either. A jury wouldn't care if the government says you don't have to supervise them. They're going for sympathy, and letting dollars decide the level of care just won't wash. If we had a case like that, we'd go for a settlement."
Douglass predicts that small, financially strapped hospitals in rural areas will be more likely to take advantage of the rule change as a way to cut costs. Larger hospitals are more likely to consider the risk too great. Walman agrees and says he strongly encourages risk managers to resist any pressure to loosen hospital bylaws just because HCFA says supervision is no longer needed.
"Even if the law changes and the federal government no longer requires this, I'd encourage risk managers to have the anesthesiologist be the provider of anesthesia care, either directly or by supervising a nurse provider," he says. "Resist the urging of administrators to save a few dollars by going with only the nurse anesthetist. It won't be worth it in the long run."
Not surprisingly, the American Association of Nurse Anesthetists (AANA) in Park Ridge, IL, supports the HCFA rule change. Leaders of that 27,000-member group say the change would eliminate unnecessary provisions in the current regulations and ultimately would improve patient care by allowing providers to focus more directly on patient outcomes. CRNAs administer more than half of the 26 million anesthesia cases in the United States every year, and they are the sole anesthesia providers in more than 70% of rural hospitals, according to the AANA.
AANA president Scot D. Foster, CRNA, PhD, tells HRM the HCFA rule change would validate what the AANA has been saying for years - that CRNAs provide "the same superior care to patients with or without physician supervision."
"This proposed rule change from HCFA is the most important federal government decision to date regarding how anesthesia is provided to patients," he says. "Clearly, this decision signifies the trust the federal government has in the ability of CRNAs to provide the highest quality of care to patients."
Foster contends that the rule change actually would decrease some liability fears for supervis-ing physicians, if not for hospitals. About 20% of AANA members are supervised by surgeons rather than anesthesiologists, usually when the CRNA is practicing in a surgery center. Those surgeons often fear vicarious liability for any malpractice case involving the CRNA. Eliminating the supervision requirement would eliminate that fear.
But Walman, the anesthesiologist and attorney, points out that the surgeons fear vicarious liability in those instances precisely because they doubt their ability to supervise a CRNA when anesthesiology is not their specialty. Rather than supporting the rule change, Walman says the surgeons' fear is an argument for strengthening the rule so CRNAs are supervised by anesthesiologists.
Foster says he doesn't expect the health care community to drastically change the way CRNAs and physicians work together, even if the HCFA rule is changed. Some state statutes will continue to require supervision, and hospitals will be free to require supervision in their medical staff bylaws. Rather than a wholesale change in the way CRNAs are allowed to practice, he expects more flexibility that can benefit individual providers.
"Hospitals will have the flexibility to provide the type of anesthesia providers they want, in the ratios they want," he says. "Clearly, hospitals over the years have valued the services of both anesthesiologists and CRNAs. There's no need to change that."
But some say the HCFA rule change would prompt a lowering of expectations. For Walman, the bottom line is that anesthesia is medicine. A nurse can provide it under the supervision of a doctor, but that does not mean a nurse can provide the same care while practicing solo.
"Nurses say they are practicing nursing care, not medicine, but this clearly is the practice of medicine," he says. "Doing it under the direction of a doctor may mean you are practicing nursing care ordered by a doctor, but the ones doing the same thing without a physician's supervision are still practicing medicine. There's no way to get around that."
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