ACS Views on Legislative, Regulatory, and Other Issues

Graduate Medical Education—

• Background
• Other Activity: COGME and MedPAC
• Resident Work Hours

staff contact: Geoff Werth, gwerth@facs.org

• ACS letter to The Honorable Phil English on the Higher Education Act, 5/24/05
• Letter to The Honorable Mark McClellan, MD, PhD, 6/12/04 (Re: Comments on Proposed Changes to the Hospital Inpatient Prospective Payment Systems and Fiscal Year 2005 Rates, Proposed Rule [CMS-1428-P]
• ACS Letter to COGME on Workforce Study, 4/30/04
• Physician Coalition Senate Letter on Higher Education Act, 4/19/04
• Physician Coalition House Letter on Higher Education Act, 4/19/04
• ACS Senate Letter on Higher Education Act, 3/30/04
• ACS House Letter on Higher Education Act, 3/30/04
• Letter to Secretary Thompson on Unused Resident Positions, 3/8/04
• Letter to David C. Leach, 8/1/02
• Letter to David C. Leach, 6/6/02

Background

Currently, Medicare finances graduate medical education (GME) through two separate payment policies: direct and indirect medical education.

Direct graduate medical education (DGME) payments, such as residents' stipends and teaching physicians' salaries, are based on: (1) a hospital specific, per resident amount (PRA) that is calculated on an annual basis by the Centers for Medicare & Medicaid Services (CMS); (2) the current number of full-time equivalent (FTE) residents; (3) Medicare's share of inpatient days; and (4) a new "locality adjustment" used to determine a hospital's PRA. A facility may include in its FTE count residents who are being trained in the hospital and those who are in ambulatory settings, as long as the hospital pays for the training. However, those residents who train beyond the minimum period required for board certification or for five years—whichever is less—are counted as only .5 FTE.

Indirect medical education (IME) payments are made through an adjustment tied to each teaching hospital's ratio of interns and residents-to-beds (IRB). For every Medicare case paid under the prospective payment system (PPS), teaching hospitals receive an additional payment. This add-on percentage is a payment to the teaching hospitals DRG payments for every 10 residents per 100 beds. The IME adjustment is viewed as necessary for two reasons: (1) teaching hospitals tend to offer a wider variety of technologically sophisticated services than is typically available at other hospitals; and (2) because of these services, the hospitals attract sicker patients who require more complex and costly treatments.

Three pieces of legislation have been passed by Congress starting in 1997 that have made significant changes to Medicare provider payments, including reductions in payments that reimburse teaching hospitals for training the nation's future physicians. The Balanced Budget Act of 1997 (BBA) changed the IME payment add-on, capped the number of resident FTEs, and required residents to be counted on a three-year rolling average. In 1999 legislators realized that BBA provisions cut Medicare programs too deeply and because there was a large budget surplus, Congress enacted the Balanced Budget Refinement Act (BBRA). In addition to more IME payment changes, it changed DGME payments by imposing a new methodology that centers around a national average per resident amount that is adjusted by a geographic adjustment factor that varies according to the physician fee schedule location in which a hospital is located ("locality adjustment"). Also under BBRA, floor and ceiling payment amounts were determined to bring hospitals up to the PRA national average or freeze their payments if they were above the ceiling amount. The per resident amounts in between the floor and ceiling amounts will be unaffected by the BBRA provision and will continue to receive annual inflation updates. Finally, the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection Act of 2000, (BIPA) which was passed in December 2000, provided an additional two-year freeze for IME payments and increases the per resident amount "floor" for DGME payments through 2002. Beginning in 2003, the IME payment add-on is scheduled to drop to 5.5 percent.

Other Activity—COGME and MedPAC

In addition to the U.S. Congress, graduate medical education is also closely supervised by two other entities, the Council on Graduate Medical Education (COGME) and the Medicare Payment Advisory Commission (MedPAC). These two groups meet several times a year to review and make recommendations on GME policies to Congress.

At its April 11-12, 2002 meeting, the COGME unanimously agreed to recommend to the Department of Health and Human Services (HHS) that the Council be reauthorized and that the scope of its mandate remain unchanged. Current legislative authorization expires in September 2002, and the Council is drafting its final report on its accomplishments and recommendations since it was formed in 1986. At this time, COGME's future is not certain, as it has not yet been reauthorized by Congress.

Resident Work Hours

On April 30, 2001, three organizations—Public Citizen, a consumer and health advocacy group; the Committee of Interns and Residents, a house staff union representing medical students; and the American Medical Student Association, an organization that represents physicians-in-training—submitted a petition to the Occupational Safety and Health Administration (OSHA) requesting implementation of new federal regulations on medical resident and fellow work hours. The petition is more stringent than current regulations in New York State and calls for the following limits: an 80-hour work week; 24 consecutive hours worked in one shift; on-call shifts only every third night; minimum of 10 hours off duty between shifts; at least one 24-hour period off duty each week; and 12 consecutive hours on duty per day for emergency medicine residents working in hospitals receiving more than 15,000 unscheduled patient visits per year. The petitioners are requesting these regulations on "the grounds that work hours in excess of the requested limits are physically and mentally harmful to medical residents and fellows, and that a federal work-hour standard is necessary to provide them with safe employment." In October, 2002 OSHA denied the petition concluding that the new resident work hour standards adopted by the American Council for Graduade Medical Education were effective tools for managing the issue.

On November 1, 2001, the Association of American Medical Colleges (AAMC) issued new guidelines for GME. (For more information, go to http://www.aamc.org.) The new guidelines focus on four key areas: institutional oversight and program support, the education program, supervision of residents in care, and resident duty hours. The AAMC believes that the program faculty is responsible for determining when a resident is unable to function at the level required to provide safe, high-quality care to assigned patients, and must have the authority to adjust assigned duty hours as necessary. However, the new guidelines state that "residents should be on duty no more than 80 hours per week and no more than 24 hours consecutively; moreover, they should have at least 8 hours duty-free between periods on call and 24 consecutive hours free of all duty every seven days."

On November 6, 2001, Rep. John Conyers (D-MI) introduced the Patient and Physician Safety Protection Act of 2001 (H.R. 3236). This legislation would make the following provisions a condition of Medicare participation for hospitals: (1) residents may work no more than a total of 80 hours per week and 24 hours per shift; (2) residents must have at least 10 hours between scheduled shifts; (3) residents will have "off duty" at least one full day of every seven and one full weekend per month; (4) those assigned to an emergency department will work no more than 12 continuous hours; and (5) residents must not be on call in the hospital more often than every third night. The measure also provides "whistleblower protections" and states that any hospital violating these restrictions will be subject to a civil monetary penalty not to exceed $100,000 for each residency program in any six-month period. The bill currently has 71 cosponsors. On June 12, 2002, Sen. Jon Corzine (D-NJ) introduced identical legislation, S. 2614, in the Senate.

On June 13, 2002, the Accreditation Council for Graduate Medical Education (ACGME) announced new restrictions for resident duty hours. Most notably: 1) residents must not be scheduled for more than 80 duty hours per week, averaged over a 4-week period, with the provision that individual programs may apply for an increase in this limit of up to 10 percent; 2) 24-hour limit on on-call duty, with an added period of up to six hours for continuity and transfer of care, educational debriefing and didactic activities, and no new patients may be accepted after 24 hours; 3) when residents take call from home and are called in to the hospital, the time spent in the hospital must be counted toward the weekly limit, and; 4) time spent in patient care activities external to the educational program (moonlighting) must be approved and monitored and if it occurs in the primary program and institution must be counted towards the weekly limit. Other limits include one day in seven must be free of patient care responsibilities and on-call no more frequently than every third night, both averaged over a 4-week period, and a 10-hour minimum rest period between shifts. But most importantly for surgical programs, "in the case that a specialty believes it cannot conduct its educational activities within the proposed constraints," an exemption beyond the ten percent increase can be obtained with the approval of both the ACGME Program Requirements Committee and the Board of Directors. In a June 6, 2002 letter to David Leach, MD, director of the ACGME, the College called for a more flexible range of 80 to 96 hours a week and stressed that "the essential nature of the number of complex procedures that a resident must perform in order to be adequately trained must be part of the formula in determining these work hours. Circumstances must be allowed to determine duty hours." In an August 1, 2002 letter to Dr. Leach, the College, along with 19 other specialty organizations, reiterated its position that an 80 to 96 hour work-week was "needed to meet educational requirements, attain operative skills, and imbue the discipline of the profession." The letter also noted that the resident work hour work group's "recommendations that would allow sponsoring institutions and specialties to obtain exemptions from the usual 80-hour weekly duty hour limit when necessary to meet their educational requirements" was very important.

While the College strongly opposes a legislative remedy to the work-hours issue and believes that federal legislation does not provide a constructive educational framework for instilling or developing a value system in young surgeons, it applauds the ACGME recommendations that can "help foster an optimal educational environment for physicians in training while maintaining the flexibility that is key to preserving continuity of care and patient safety." The ACGME, for its part, believes the problem with having state or federal statutes dictating limits on resident duty hours is that such laws are slow to adapt to changes and developments in the clinical and educational environments.

"Congressional statutes, once passed, are very rigid and require an act of Congress to modify," says David Leach, M.D. "The ACGME is the appropriate body to enforce reform. The 80-hour limit on resident duty hours might not be the right [limit], and our organization is in closer contact with emerging clinical reality and could adapt more quickly than Congress."

At its September 10, 2002 meeting, the ACGME Board of Directors accepted the report of the Committee on Program Requirements regarding the proposed standard for resident duty hours. The Board expressed their appreciation to the many individuals and groups who responded to the Report of the Working Group and acknowledged the importance of these comments in the preparation of the proposal. The proposed duty hours standard may be found at http://www.acgme.org.

ACGME asks to please submit any further comments, including letters of support and questions of clarification, by December 31, 2002 to: commonreq@acgme.org (Kindly reference any comments to specific lines in the document.)

Consistent with ACGME policy, the final standard will be approved at the February 11, 2003 ACGME meeting. Following approval, the common duty hour standard will be inserted by editorial revision into all specialty and subspecialty program requirements, effective July 1, 2003.

Revised March 7, 2005

ACS Views on Legislative, Regulatory, and Other Issues

Advocacy and Health Policy