The Patient-Focused Critical Care Enhancement Act – S. 718
An Analysis
S. 718 was written over a 12-month period with input from the Critical Care Workforce Partnership (CCWP) societies (ACCP, ATS, SCCM, AACN), ACCP staff, and Holland & Knight, as well as input from the legislative directors and the health legislative assistants of Senators Richard Durbin and Mike Crapo. In actuality, however, work on this legislation began in 1998.
S. 718 is the direct outgrowth of the following:
- the COMPACCS Study completed in 1998 and published in JAMA in 2000;
- three subsequent articles published in CHEST in 2004 – one titled, The Critical Care Medicine Crisis: A Call for Federal Action;
- nine separate report language requests introduced in both the House and Senate from 2002 to 2005, asking for the Health Resources and Services Administration (HRSA) to work with the CCWP to develop/release a report analyzing the conclusions from COMPACCS;
- a workforce report from HRSA, released in May 2006, focusing solely on critical care;
- a request from Senator Richard J. Durbin to help him draft legislation addressing the issues raised in the HRSA report; AND
- the Patient-Focused Critical Care Enhancement Act (S. 718)—the result of these efforts.
Originally, the recommended legislative language put forth by the CCWP included provisions to increase the supply of critical care providers in the workforce in response to the documentation illuminated in the HRSA report. The agency defined a current and future crisis in numbers of trained critical care physicians available to care for the growing elderly population. However, due to the heightened congressional temperature surrounding immigration and budgetary issues, a practical decision was made to focus S. 718 on enhancing the opportunity to first increase the efficiency of the current critical care workforce and to explore ways to address patient demand for critical care services driven by the aging population. All of this was designed in a manner to reduce physician "burn out".
As a result, several questions have been asked regarding what is, and is not, included in S. 718.
Why was the J1 Visa section eliminated?
Original draft language: Amendments to the J-1 Visa Program. The J-1 Visa program under the Immigration and Nationality Act is amended to add the following:
Additional Waivers for Foreign Medical Graduates Trained in Critical Care. In addition to [the existing number of waivers permitted under the law of the requirement that holders of J visas must return for 2 years to their home country upon completion of their training], an additional [100] such waivers shall be made available to foreign medical graduates and foreign nursing graduates who:
(1) have completed a program of training in critical care medicine. For purposes of this provision, "training in critical care medicine" shall include completion of a pulmonary fellowship, completion of a critical care fellowship, or completion of a [nurse critical care training]; and (2) who certify in a manner proscribed by the Secretary of Homeland Security in consultation with the Secretary of Health & Human Services that they will be employed for a period of not less than 5 years as an intensivist. For purposes of this provision, "intensivist" shall mean a medical care provider who spends more than 50% of their working time providing critical care services to patients in an inpatient intensive care setting.
Senator Durbin made it clear that he would not be willing to support this section and that if we wanted to keep it in, we would need to find another sponsor. He believes that the United States should not attempt to solve its workforce shortage problems by "draining" health-care talent from other countries which also face their own manpower needs in health care. He is not alone in this belief in the Senate. Even if we were successful in seeking another Senator to sponsor the bill, inclusion of this section would have significantly increased the chances that this legislation would not be acted upon favorably. On balance, we believed it was more important to have Senator Durbin be our lead sponsor because (1) he is our Senator (and we have a longstanding productive relationship with him and his office on tobacco control issues), and (2) he is the Majority Whip, putting him second in command within the Democratic leadership (which can only help when it comes to moving the legislation).
Why did Senator Durbin separate the GME section out from the bill for introduction separately? What is the plan for the introduction of this issue (as a legislative vehicle) and will it look the same as what we proposed? How is this different from the Nelson GME bill? What is the definition of "scoring"?
Original draft language on GME: A. Amendments to Medicare Graduate Medical Education. Section 1886 (b) of the Public Health Service Act (42 U.S.C. 1395 ww (d)(5)(B)) is amended by adding after clause (viii) the following new clause and renumbering clause (ix) as clause (x):
(ix) Expansion of Critical Care Training Programs. The addition of full-time residency equivalents resulting from the creation of new critical care training residency facilities or the expansion of critical care residency training programs, shall be added to the full-time residency equivalent count in hospitals' most recent cost accounting period ending on or before December 31, 1996 and the Secretary shall deem such new or additional critical care resident training position eligible for full direct graduate medical education reimbursement. The Secretary shall limit the total number of annual additional full-time residency equivalents authorized under this clause to not more than 20 in 2007, 40 in 2008, 60 in 2009, 80 in 2010, 100 in 2011, 120 in 2012, 140 in 2013 and 160 per year for years 2014 through 2020. For purposes of this clause, the term "critical care residency training programs" shall be limited to pulmonary fellowships and/or critical care fellowships for physicians.
Section 886 (h) of the Public Health Service Act (42 U.S.C. 1395 ww (h)(4)) is amended by adding after subparagraph (H)(iii) the following:
(iv) Expansion of Critical Care Training Programs. The additional full-time residency equivalents resulting from the creation of new critical care training residency facilities or the expansion of critical care residency training programs, shall be added to the full-time residency equivalent count in hospitals' most recent cost accounting period ending on or before December 31, 1996 and the Secretary shall deem such new or additional critical care resident training position eligible for inclusion in the ratio of hospitals' full-time equivalents interns and residents for the purposes of determining hospitals' indirect graduate medical education reimbursement adjustment factor. The Secretary shall limit the total number of annual additional full-time residency equivalents authorized under this clause to not more than 20 in 2007, 40 in 2008, 60 in 2009, 80 in 2010, 100 in 2011, 120 in 2012, 140 in 2013 and 160 per year for years 2014 through 2020. For purposes of this clause, the term "critical care residency training programs" shall be limited to pulmonary fellowships and/or critical care fellowships for physicians.
This was essentially a procedural/tactical decision, also urged by Senator Durbin. GME is a Medicare issue under the jurisdiction of the Finance Committee. The rest of our legislation is a public health issue under the jurisdiction of the Health, Education, Labor, and Pensions (HELP) Committee. Separating this section means that our bill is only referred to one committee for consideration instead of two. This improves our chances of moving it out of committee, as it would otherwise require a "dual referral" and Finance Committee signoff.
Senator Durbin is willing to take the GME section of our bill and introduce it as a freestanding measure or as part of a larger GME bill. It would then move on a separate (and more complicated) track. Our GME provision is critical care-specific. Senator Nelson's bill is not specialty-specific. Rather, he is interested in increasing the number of GME- funded slots, generally in those states experiencing a shortage (based on number of physicians per 100,000 people). About 24 states would benefit from Senator Nelson's bill, including his home state of Florida, which is experiencing one of the most significant shortages.
Regarding timing and vehicle of introduction of our GME provision, we will be following up with Senator Durbin's staff shortly to discuss those options. For instance, Senator Nelson's bill could prove to be that legislative vehicle to which we might attach our language as an amendment. We do not have any specific time frames at the moment, but we will work with Senator Durbin's office to develop them.
As a budgetary matter, GME changes are scored* as adjustments to entitlement spending —that is, the change in law itself has a budget effect upon enactment. Under the "pay as you go" rules now in effect in the new Congress, this would require that we propose an offsetting cut in entitlement spending (or a new tax) to pay for the change. This would severely complicate our ability to move S. 718. In addition, the issue of increasing GME slots is one that many groups are concerned about, and it will probably have to be dealt with in a broader fashion and as part of a larger omnibus budget bill. Again, this is more complicated procedurally.
*Definition of Scoring - A procedure used by the Congressional Budget Office for up-to-date tabulations of congressional actions on bills and resolutions that provide new budget authority and outlays, or change revenues and the public debt, for a fiscal year. Such reports include, but are not limited to, status reports on the budgetary effects of these congressional actions to date and of potential congressional actions and comparisons of these actions to targets and ceilings set by Congress in the budget resolution.
Why is this legislation important/unique in the scheme of things?
This legislation is unique because it is based on a HRSA report, which was requested by Congress to address the critical care workforce shortage described in The Critical Care Workforce: A Study of the Supply and Demand for Critical Care Physicians. Requested by: Senate Report 108-81. (Senate Report 108-81 was drafted by Holland and Knight and submitted by Senator Specter through a personal ACCP request made by Teresa Bisnett, Scott Manaker, and others from Pennsylvania during the 2003 ACCP Caucus.) To date, the ACCP is the only medical specialty society to have legislation introduced specifically addressing research and programs that would impact the specialty and its ability to provide care for its critically ill patients.
The legislation creates unique demonstrations and a research agenda specifically targeted on improving critical care. The initiatives described are intended to improve the current system, utilizing the current workforce without creating physician "burnout," including an effort to expand the reach of The CHEST Foundation’s patient-centered care initiative (the Critical Care Family Assistance Program), which has documented evidence of success in its pilot phase.
Why does Section 6 amend the Agriculture's Rural Utilities Service Act?
This Act is a major source of funding for telemedicine initiatives. We are amending it to add additional funds for telemedicine efforts focused on critical care.
What is the definition of rural and underserved as it relates to this legislation?
These definitions are established elsewhere, based on Census data as interpreted and applied by relevant federal agencies. "Medically Underserved Areas" (MUAs) are defined by the Health Resources and Services Administration (part of HHS) and, as a general proposition, include both inner city and rural areas of the country where HRSA has determined that a shortage of services exists.
Explain how the telehealth network grant program works so that we can understand why it was important to identify critical care, and what funds (amounts available, etc) would be made available to rural providers from this subsection.
This is a somewhat smaller program that incorporates some of the older HRSA telemedicine authorities. It is a grant program. What we did was to create a preference for critical care-related projects. The bill also authorizes $5 million to be appropriated in fiscal years 2008 – 2013 for this purpose. If and when the bill becomes law, we would then need to take steps to ensure that the appropriators, who can choose to fund it anywhere between zero and $5 million, fund the provision.
What are the next steps for S. 718? What additional steps do we need to go through in Senate and in the House? How many votes are required to pass out of each chamber to override a veto?
We intend to get the legislation agreed to and expedited in the Senate before the end of this year, although the end of next year is probably a more realistic target. The major step right now is to get more cosponsors and to get a companion bill (same exact language) introduced in the House. We are working to identify a House sponsor and have asked Rep. Tom Allen (D-1st, ME) to consider sponsoring this legislation. We still need to identify a Republican member but will wait to hear from Rep. Allen first. Our goal is to get 218 cosponsors on House legislation and 60 in the Senate to be veto-proof. The CCWP needs to work to get 60 cosponsors for S. 718. Sixty is the magic number in the Senate, and 218 is the magic number in the House.
If we can move this bill without it being attached to another piece of legislation, however, a veto is unlikely. If we don't make it through in the next two years, we will need to reintroduce it and “charge up the hill again”. Legislating at the federal level can be annoyingly slow.
Conclusion
This legislation should be viewed as a first step in raising awareness, through a national conversation, about the ability of the current critical care system to care for the growing aging population.
While addressing each area highlighted in S. 718 has the potential to show incremental gains in patient-focused care, the crisis will be averted only if action is taken on three fronts – research, standardization and best practices, and the third front being an increase in the supply of physicians trained in critical care medicine as stated in The Critical Care Medicine Crisis: A Call for Federal Action.
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