Continuing the Fight
CMS finalizes 25 percent professional component multiple procedure payment reduction.
By the time this article is published, the Super Committee will have provided its report on Medicare payments to physicians, and imaging-specific legislation may have been passed.
Meanwhile, CMS may or may not have modified its regulatory language regarding the professional component (PC) multiple procedure payment reduction (MPPR) in response to our continuing efforts.
Responding to the proposed PC MPPR for advanced imaging has been a nonstop initiative for members of the ACR Government Relations Department and the ACR Commission on Economics for the past nine months. The fight will continue even though CMS has finalized its regulations on the issue. Our response has appealed to all branches of the government, including elected officials, government accountants, federal policy-makers, the administration's political staff, career CMS bureaucrats, and the general public.
Our members' congressional lobbying efforts convinced Representatives and Senators to send letters to MedPAC, CMS, and the President strongly opposing the MPPR. The ACR organized a letter to Congress and MedPAC from the AMA signed by more than 30 medical specialty societies that opposed the policy. Many specialty societies also argued against the policy through individual comments to CMS. Additionally, the College organized meetings at hospitals and imaging centers in the Midwest between practicing radiologists and former CMS Administrator Donald M. Berwick, M.D., who, after evaluating the process involved when radiologists order multiple exams, remarked to the radiologists at the facilities that he did not see much efficiency in the PC.
Finally, the ACR explained the clinical practice of radiology and why multiple exam interpretations do not create efficiencies. In fact, the College provided CMS with published data that showed efficiencies of less than 10 percent when performing multiple diagnostic imaging studies on the same patient. Such data dispel the ideas of the Government Accountability Office and MedPAC, on which CMS relied in developing the policy. College representatives also met with administration officials at the Office of Management and Budget, which oversees all federal agencies, to explain our position on the issue.
Like the comic character Charlie Brown, who received nothing but rocks on Halloween, CMS provided us with a "rock" on Nov. 1, when it released the Medicare Physician Fee Schedule Final Rule. The rule finalized a 25 percent PC MPPR policy. Although CMS originally proposed a 50-percent payment, at 25 percent PC MPPR policy remains irrational and baseless.
CMS responded to the ACR's comprehensive analysis of the available data and extensive clinical comments by stating that its representatives conducted an "additional analysis" and found efficiencies in the range of 27.3 to 43.1 percent. However, in the 24 pages of PC MPPR, CMS provided no further justification beyond the judgement of its medical officers that significant efficiencies exist.
In the final rule, CMS extends the PC MPPR policy to include all physicians in the same group practice, inexplicably concluding that the CMS does not believe a separate physician interpretation constitutes a separate session. This extension of the policy was not even tangentially addressed in the proposed rule, which explicitly stated the PC MPPR would apply to services "furnished to the same patient by the same physician on the same day." In the ACR's judgement, CMS made this profound policy decision without fulfilling its statutory requirement to obtain public comment. (Government agencies like CMS must allow public comment on major policy decisions.)
Had the CMS made its intention to apply the policy to physician group practices, the College and its members would have provided extensive comments explaining why 1) such a policy would be at odds with the way radiologists practice medicine, 2) it is unfair to physicians, and 3) it is administratively unworkable. Ultimately, we cannot accept the CMS justification for the 25 percent MPPR or its broad application to group practices without exploring available options for mitigation.
As of press time, only six weeks remain until policy implementation, and while the College continues its fight, the final outcome remains uncertain. In mid-November, the ACR met again with CMS to point out that the expansion to group practices constituted a major policy decision that occurred without any opportunity for public comment. The College explained that the analysis CMS published in the final rule was neither adequate nor transparent without the opportunity for comment. During the discussion, however, it became apparent that the agency had not considered the clinical and administrative ramifications of extending this policy to the entire group practice for radiology services, which was a direct consequence of omitting material information from the proposed rule. It remains to be seen what effect this meeting will have on the ultimate outcome of the implementation of the PC MPPR, but in this instance, the fact that CMS failed to make a public comment period available may be leverage for mitigation.
During the entire regulatory battle, the College developed a parallel legislative strategy and, just before the final rule was published, the Diagnostic Imaging Services Protection Act was introduced in the House of Representatives (H.R. 3269), which would require CMS to rescind the PC MPPR policy. Despite strong bipartisan support with more than 70 sponsors and co-sponsors and the legislative climate of debt reduction, it's unclear whether there will be a definitive vehicle to get this act passed in this congressional session in time to mitigate the PC MPPR policy. The uncertainty rests on the actions of the Super Committee and congressional action on the Sustainable Growth Rate; however, continued efforts are underway, and every ACR member has been asked to participate in lobbying their members of Congress.
Though only time will tell the outcomes of many of these issues, I wanted to share how the ACR Government Relations and Economics teams approached this issue on our members' behalf. Battling the government is neither easy nor as simple as we'd like to believe. As of today, we still have some ammunition left and you can be sure that we use every available resource to advocate on your behalf.
By Bibb Allen Jr., M.D., FACR