Hot Issues
Lawmakers may cancel state database used to fight prescription-drug abuse
Proposed civil access pilot project
Medicare physician payment
Medicare anesthesia opt-out
Lawmakers may cancel state database used to fight prescription-drug abuse (reprinted from The Denver Post, March 7, 2011)
A Colorado database used to prevent prescription drug "doctor shopping" is in peril after the state Senate Appropriations Committee voted against renewing the program.
Proponents of the state's Prescription Drug Monitoring Program are drafting a bill to try to keep the database running, saying it is essential in the fight against painkiller abuse and misuse.
"It is absolutely critical for the physicians in this state," said Edie Sonn of the Colorado Medical Society.
"Doctors explain how frequently they use it and how it's helped them do everything from protect patients from drug interactions, to not fill a prescription for patients who are doctor shopping," Sonn said.
Last month, health care providers who prescribe painkillers were surprised and then alarmed by the Appropriations Committee's decision in light of Colorado's prescription-drug abuse crisis.
Painkiller abuse is on the rise in Colorado and has deadly consequences, according to data from the federal Drug Enforcement Administration in Denver.
In Colorado, the number of people who died from prescription-drug abuse rose 95 percent during the past decade, according to the DEA.
"If (the PDMP) goes away, there is no mechanism to track the movement of prescription drugs across Colorado," said Chris Lines, a spokesman for the Department of Regulatory Agencies. "It means there will be no reporting requirements for doctors or pharmacies."
In 2005, the General Assembly passed the law establishing the database, which was up and running in 2007.
The computerized database allows physicians to look up narcotics that patients have been prescribed to see whether they have visited different doctors to obtain a surplus of painkillers.
The PDMP includes the patient's name, the health care provider who prescribed the narcotics, and which pharmacy issued the medication.
The database costs about $270,000 a year to run, and funding is provided by federal grants and fees on the licenses of health care providers who write prescriptions.
State Sen. Pat Steadman, D-Denver, chairman of the Appropriations Committee, said he and a bipartisan group of five others voted against renewing the PDMP on Feb. 25 because they have concerns over privacy and how informed the public is about their prescription information going into the database.
"I have concerns . . . if patients are aware of the fact the state is tracking the information," he said. "I am concerned about who has access to the database and concerned about the funding of the program and about where some of the revenues have gone."
Steadman says he will consider a revised late bill on the PDMP if he feels it addresses those issues.
Dr. Scott Hompland, a chronic-pain and addiction specialist, says the database is essential for patient safety and to protect doctors from overprescribing medications.
"I need to know if anybody else is giving them pain pills," he said. "So this is our only tool we have to battle back."
Felisa Cardona: 303-954-1219 or fcardona@denverpost.com
CMS President-elect testifies before state Supreme Court
Proposed pilot would limit a physician's med-mal defense
A proposed civil access pilot project may unfairly disadvantage physicians in defending against medical malpractice claims, Colorado Medical Society President-elect F. Brent Keeler, MD, told members of the Colorado Supreme Court during a hearing Jan. 19.
The project is intended to streamline discovery in litigation, thereby reducing the length and cost of a lawsuit. If approved by the state's high court, the pilot would be conducted in the five-county metro area. Colorado Medical Society, along with approximately 24 other physician organizations, opposed some - but not all - provisions in the proposed pilot.
"The medical community recognizes that medical malpractice litigation is expensive and time-consuming, as those costs are reflected in the medical malpractice insurance premiums that we pay each year," Keeler told the court during a hearing Wednesday. "We support equitable and rational reforms that provide fairness to both patients and physicians. We object to only those provisions that deny physician defendants essential knowledge as the lawsuit progresses or impair their ability to defend to the claims against them." (Read Dr. Keeler's full testimony here).
Dr. Keeler's testimony was accompanied by testimony from COPIC CEO Ted Clarke, MD, as well as a number of leading members of the medical defense bar. All made strong arguments about the unique nature of medical liability defense and the dangers of impeding physicians' ability to vigorously defend themselves.
Background: All civil litigation is governed by rules of procedure. These rules establish timeframes and processes for litigation: who is responsible for the various aspects of the litigation, the process for and scope of discovery, and trial and post-trial processes.
There are criticisms from both Plaintiff and Defense lawyers about the current rules, chiefly that the discovery process is long and expensive. On the heels of national discussions aobut these concerns, Colorado's Institute for the Advancement of the American Legal System initiated a project to develop changes in the rules to improve the efficiency of litigation. One attorney who defends for-profit hospitals participated on the committee.
The committee spent a year developing their recommendations and released them in December 2010, in advance of a projected Feb. 1 launch date for the pilot. The committee's recommendations enjoy broad support from judges in all the judicial districts included in the pilot.
CMS Concerns: As you can read in this letter to the court, CMS, component and specialty societies are concerned that the proposed rules do not reflect a real understanding of medical liability defense, and consequently will make it harder for physicians to defend themselves in medical malpractice cases. For example, the rules would limit expert testimony and change timelines for discovery, both of which are problematic for physicians' defense.
What's next: At the hearing, the court indicated its interest in amending some of the proposed rules. While the project was originally scheduled to launch Feb. 1, we anticipate that the launch will be delayed while the court considers modifications based on the concerns brought forward in court testimony and the written comments to the court. We do not, however, anticipate that the pilot project can be stopped. We will keep members informed about the court's decision as soon as we know it.
Also, look for stories in the next Colorado Medicine on this and other liability issues.
Medicare physician payment
On Dec. 9, the House of Representatives passed H.R. 4994, the "Medicare and Medicaid Extenders Act of 2010," on a bipartisan vote of 409-2. This legislation, which passed the Senate Dec. 8 by unanimous consent, would stabilize Medicare physician payments at current rates for 12 months, through the end of 2011. It will now be sent to the White House for President Obama to sign into law.
In addition to providing an additional 12-month reprieve from the 25 percent Medicare physician payment cut scheduled to take effect on January 1, the bill extends a number of payment policies that were set to expire at the end of this year. It also includes funds to enable Medicare contractors to reprocess claims for physician services affected by provisions of the Patient Protection and Affordable Care Act passed last spring with a retroactive effective date of January 1, 2010. A more detailed summary of the bill’s provisions is available here.
Medicine was supported in its advocacy efforts by aggressive grassroots pressure from AARP, which included over 100,000 contacts by seniors to Congressional offices as well as paid radio and print advertising, direct mail, teletownhalls, and educational efforts conducted jointly with medical societies in several states, including Colorado. Also key to successful and timely passage of the bill was the bipartisan cooperation among leaders in the Senate and the House.
All parties agree with medicine that the time for recurring stop-gap measures to end the disruption caused by the sustainable growth rate formula is long past. As noted in a statement issued yesterday by President Obama: “It’s time for a permanent solution that seniors and their doctors can depend on and I look forward to working with Congress to address this matter once and for all in the coming year.”
Colorado Medical Society would like to thank AARP and all of our members who reached out to the congressional delegation throughout the past year to support this effort.
On Sept. 28, CMS and the Colorado Society of Anesthesiologists filed suit against Colorado Governor Bill Ritter in an attempt to block his decision to opt Colorado out of the Medicare requirement for physician supervision of anesthesia services provided by certified registered nurse anesthetists (CRNAs). We anticipate a hearing will be scheduled for January 2011.
Legal Rationale
Our opposition to the opt-out is based on our interpretation that it is inconsistent with Colorado law. Reinforced by years of Colorado case law, the "Captain of the Ship" doctrine holds that it is the physician - usually the surgeon, but also potentially the obstetrician or family physician - who is in charge in the operating room, and, therefore, is legally responsible and liable for the acts and omissions of nurses in the OR. An opt-out will not change the fact that physicians will still be fully liable for the acts or omissions of a CRNA under Captain of the Ship. However, by seeming to promote an independent scope of practice for nurse anesthetists, an opt-out has the potential to inject confusion and discord into the ultimate role and responsibility of physicians for the care of their patients.
Further, Colorado law defines the delivery of anesthesia as a delegated medical function, and a delegated medical function is defined by statute as an action performed pursuant to a physician's order. While there is some ambiguity between the Medical Practice Act and the Nurse Practice Act regarding delegated medical functions, we are confident of our legal position on this issue.
CMS/CSA Alternative to Opting Out
CMS and CSA have developed an alternative to the opt-out that would include immediate and comprehensive outreach to physicians about what "supervision" means in the anesthesia context.
CSA's position - endorsed by CMS - is that "supervision" means that there is only one person with the education, training and experience to oversee and take responsibility for the overall medical care of the patient. It does not mean that a non-anesthesiologist physician must or should know how to administer anesthesia or the anesthetic agents involved.
This definition of supervision speaks to the fact that the physician is the most qualified person to oversee the medical decision-making in the perioperative environment. It is the physician's responsibility to determine if the patient is ready for anesthesia, optimize their medical condition prior to the procedure, oversee the management of any intraoperative complications and oversee the postoperative medical care. Further, this definition is consistent with the "Captain of the Ship" doctrine, explained above.
We do not believe that the consequences of maintaining physician liability, without supervisory authority if the opt-out is enacted, have been given adequate consideration. We heard testimony from rural physicians at CMS' Annual Meeting in September that physician liability without supervisory authority would make it more difficult to recruit surgeons to rural areas. Other physicians stated that this combination could be a recipe for a dysfunctional and potentially dangerous operating environment.
Over the past four years, CMS has spent considerable time and resources to preserve Colorado's stable medical liability climate. Because the contradiction between the opt-out and Captain of the Ship is not fully understood and has not been addressed, and because our definition of supervision is consistent with good medical practice, CMS is going to court to stop the opt-out. This position is consistent with our goal to make Colorado the safest state in the country to receive medical care and an overwhelming vote of the House of Delegates.