After the Supreme Court Decision: Anesthesiologists Must Proceed With a Perioperative Care Model

Editor's note: This article by Tony Mira, president and CEO of Anesthesia Business Consultants, an anesthesia & pain management billing and practice management services company, originally appeared in Anesthesia Business Consultants eAlerts, a free electronic newsletter. Sign-up to receive this newsletter by clicking here.

The Supreme Court's decision on the Affordable Care Act resolved the legal uncertainty, but not the political battle over healthcare reform. Anesthesiology and pain medicine practices should continue expanding their perioperative roles.

The Supreme Court's decision on the fate of the Patient Protection and Affordable Care Act (PPACA or, more commonly, ACA) is due to be announced at 10:15 on Thursday morning, June 28. We are not jumping the gun by beginning to write this Alert ahead of the decision — the take-away message is that whether the ACA stands or falls, in whole or in part, anesthesiologists need to continue developing their role in perioperative care.

Towards the Perioperative Surgical Home™ model of care
Coordinated medical care is now an established value and goal in both the public and private sectors. "Silos" and "fragmentation" are pejorative terms used to describe the type of health care delivery system that policymakers seek to leave behind.

Many anesthesiologists began expanding their role in coordinating perioperative care long before the ACA was written, in pre-anesthesia testing through post-operative pain medicine services. Several years ago, the American Society of Anesthesiologists started developing the concept of the Perioperative Surgical Home™ model of care. The impetus was the provision for the primary care-based "medical home" in the ACA. ASA past president Mark Warner, MD stated the rationale for the Perioperative Surgical Home™ model in his letter to CMS dated August 11, 2011, commenting on the proposed Medicare payment policies and physician fee schedule rule for 2012:

Anesthesiologists routinely interact with physicians and other providers from virtually all care settings and assess and monitor the patient from an overall perioperative perspective; thus, anesthesiologists are ideally suited to effectively assess and manage risk across the full continuum of the perioperative setting. Anesthesiologists partner with hospitals, proceduralists, and surgeons in selecting cost-effective implants and pharmaceuticals to provide better quality of care at a lower cost. Further, anesthesiologists serve as physician managers and coordinators of operating and procedure rooms. In addition to managing patient flow and triage through the surgical experience, anesthesiologists evaluate and help optimize patients for proposed operative procedures. For those situations where multiple pathways of care are available, anesthesiologists play a central role in helping patients determine the most appropriate course of care. Evidence-based Cost Utility Analysis can play a role in informing the patient's decision-making. Some patients may elect to have less expensive conservative management after such counseling, creating savings for Medicare. These savings are directly attributable to the anesthesiologist's participation. Additional savings would be derived from decreased testing and consultations, through pre-operative evaluations performed in anesthesiologist-run Pre-Anesthesia Testing clinics, as well as reduced hospital lengths of stay and hospital readmissions arising from 1) selection of appropriate candidates for surgery, including interventions with those who are highly unlikely to benefit, 2) identification of optimal timing for surgical interventions, to avoid rescheduling, 3) reduction of complications such as surgical or catheter-related infections, poor perioperative glycemic control, and postoperative nausea and vomiting that increase length of stay or necessitate admission following outpatient surgery, and 4) improved perioperative management of pain and anxiety to ensure the best possible patient care experience.

Working in close collaboration and communication with primary care physicians, surgeons and other members of the perioperative team, anesthesiologists can play a major role in reducing the number of unnecessary procedures and of perioperative complications, contributing to both improved quality and cost savings.  Some of the specific ways, taken from Dr. Warner's letter above and repeated in list form here because of their individual importance, are:

1. selecting cost-effective implants and pharmaceuticals to provide better quality of care at a lower cost;
2. managing patient flow and triage through the surgical experience;
3. evaluating and helping optimize patients for proposed operative procedures;
4. helping patients determine the most appropriate course of care. "Evidence-based Cost Utility Analysis can play a role in informing the patient's decision-making. Some patients may elect to have less expensive conservative management after such counseling, creating savings for Medicare";
5. decreasing the volume of testing and consultations, through pre-operative evaluations performed in anesthesiologist-run Pre-Anesthesia Testing (PAT) clinics;
6. helping to reduce hospital lengths of stay and hospital readmissions arising from:

a.    selection of appropriate candidates for surgery,
b.    identification of optimal timing for surgical interventions, to avoid rescheduling,
c.    reduction of complications such as surgical or catheter-related infections, poor perioperative glycemic control, and postoperative nausea and vomiting that increase length of stay or necessitate admission following outpatient surgery, and
d.    improved perioperative management of pain and anxiety to ensure the best possible patient care experience.

Anesthesiologists' contributions will open the door to participation in accountable care organizations and bundled payment systems, which have already taken hold in the evolving health care system but which have become even more important now that the Supreme Court has ruled the ACA constitutional.

In December 2011, ASA submitted a letter to the Center for Medicare and Medicaid Innovation, which was created by the ACA, outlining its intention to apply for a Health Care Innovation Challenge grant to explore the Perioperative Surgical Home™ model of care concept. The HCI Challenge is a CMMI grant pool of $1 billion with grants ranging from $1 million to $30 million to help develop "compelling new ideas to deliver better health, improved care and lower costs to people enrolled in Medicare, Medicaid and CHIP, particularly those with the highest health care needs." In January 2012, ASA issued a call for partners for a formal Perioperative Surgical Home™ model grant proposal. The validation of the ACA makes it more likely that such a proposal will go forward.

Summary and impact of the Supreme Court decision

Until last Thursday morning, most people expected SCOTUS to rule the ACA unconstitutional in whole or in part. The decision upholding the law – and, in particular the grounds on which Chief Justice Roberts, writing for the majority, found that the individual mandate was within Congress' power – came as a surprise (although the 5-4 split did not).

Indeed, "19 of 21 constitutional law professors who ventured an opinion on the most-anticipated ruling in years" believed that SCOTUS should uphold the statute, but "Only eight of them predicted the court would do so." (Bob Drummond, Bloomberg News, June 25, 2012.)  Intrade, an online betting site, put the odds of the mandate being struck down at around 70 percent. CNN and Fox News, in the rush to be the first to report the decision, initially announced that SCOTUS had overturned the individual mandate.  The health and medical associations had as many as five different press releases, keyed to different potential outcomes, ready by Wednesday night.

As you know, there were four separate questions before the Court.  Here are the rulings on each:

1. Individual Mandate: This is the key and most controversial provision of the ACA, the one that would require all Americans to obtain health insurance by 2014.  Failure to do will result in a penalty ranging from a minimum of $695 per person up to a maximum of 2.5 percent of income.  Because the penalty is administered like a tax by the IRS, the Court ruled that it is constitutional under Congress' taxing power, although it would be an unconstitutional exercise of the power to regulate interstate commerce.

2. Anti-Injunction Act:
A different standard applies to the definition of a "tax" that the Anti-Injunction Act would bar the Court from considering before it was assessed.  Therefore the Anti-Injunction Act is not a jurisdictional bar to the Court's deciding the case on the merits.

3. Severability: Since the individual mandate was upheld, it was unnecessary for the Court to determine whether other provisions of the ACA would be valid even if the mandate was struck down.

4. Medicaid Expansion: the Court struck down the provision that would have cut off Medicaid funding for states that refused to comply with the ACA's eligibility rules.  Additional Medicaid funding will be available to the states that do comply, with more patients covered by the program in those states.  
The greatest impact of the SCOTUS decision, generally as well as on most physicians, will be the addition of some 32 million people to the rolls of those with health insurance.  This will mean more patients, some of whom will be covered by health plans that pay anesthesiologists and pain physicians better than other plans.  The ACA provisions that will be of particular significance to our readers include the following:

•    Shared savings program – ACOs, bundled payment initiative, care transitions demonstration projects and perhaps a CMMI HCI Challenge grant for the Perioperative Surgical Home™ model of care
•    Overpayment rule requiring physicians to return overpayments within 60 days of identifying them
•    The Independent Payment Advisory Board (the House of Representatives has passed separate legislation that would eliminate IPAB)
•    Provisions affecting Overpayment rule requiring providers to return overpayments within 60 days of identifying them
•    Mandatory compliance plans
•    Medicaid recovery auditors
•    Employee insurance requirements

Individuals with private health insurance, a group that includes most physicians, their families and their staffs, will benefit from the now-familiar ACA insurance market reforms:

•    Insurance companies cannot reject customers for pre-existing conditions.
•    Young adults can stay on their parent's insurance until age 26.
•    There are limits on insurers' ability to perform age-rating or charging premiums several times higher for older customers.
•    Lifetime insurance caps and annual limits are eliminated.
•    There is a 15 percent limit on the amount insurers can spend on non-medical costs (overhead).

And there are numerous questions that remain open, notably the political future of the ACA now that its legal status is settled. Depending on what happens in the November elections, the law may or may not be repealed — so the uncertainty continues.

The states, which must establish the Health Insurance Exchanges through which many people will obtain their coverage by January 1, 2014, are already behind schedule in most cases and quite a few of those that have resisted planning for their HIEs. The National Association of Insurance Commissioners expects only about half the states to be ready to set up new health insurance markets, slated to open for business in 2014.

As the New York Times explained (6/29, Sack, Abelson, Subscription Publication), "The Supreme Court's decision to uphold the Affordable Care Act shifts the focus from whether sweeping changes to the health insurance market should take place to a scramble to meet the law's rapidly approaching deadlines." The states that only now begin work as well as those that decide to gamble on repeal "face the unsettling prospect that the federal government could take over their responsibilities, particularly in setting up the health insurance marketplaces known as exchanges, where people will be able to choose among policies for their coverage."

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