If You Fought the Law

Suing the HHS over payment reductions probably wouldn't work in view of its close ties to Congress.if you fought the law

Members often ask why the College doesn't simply sue the government when Congress, the Department of Health and Human Services (HHS), or its subcomponent, the CMS, does something that harms radiology.

These questions have steadily increased over the last few years as reimbursement for radiology procedures has been frozen or cut.

In fact, citing overuse of medical imaging, CMS and Congress have cut imaging payments 12 times in the past six years. For example, in 2007 — following a mandate of the Deficit Reduction Act of 2005 — CMS reduced the technical component payment for services performed in freestanding imaging centers. In 2007, CMS also applied the new multiple procedure payment reduction (MPPR) to the technical component of CT, MRI, and ultrasound. CMS extended the MPPR to the professional component of advanced diagnostic imaging services in 2011.

So why doesn't ACR sue the government? The short answer is that Congress has made it very difficult to do so. United States law recognizes a concept known as sovereign immunity. In England, where the law originated, this means that no one can sue the king. Here, it means that no one can sue the federal government unless the government consents to be sued. The U.S. government grants such consent only when Congress passes a law waving its sovereign immunity. In regards to HHS and CMS, the applicable law is the Administrative Procedure Act (APA) (5 U.S.C. subchapter II), which delineates the process for federal agencies to propose, review, and issue regulations. The APA specifically permits affected parties to seek court review of agency decisions.

So again, why didn't the College sue the Secretary of Health and Human Services when these reductions were imposed? Well, leadership did consider filing suit, either alone or in conjunction with other affected medical societies such as the American College of Cardiology (ACC). The basis for such a suit was the secretary's use of inappropriate survey data and refusal to use more accurate survey data offered by the specialty. After considerable research and deliberation, however, the College determined that such an effort would require an exorbitant amount of money and other resources with virtually no likelihood of success. This determination was based on the opinions of both the ACR Legal Office and independent outside counsel. Both noted that the fee schedule law specifically prohibited administrative or judicial review of the HHS secretary's determinations on these payment issues. So while Congress generally granted the right to go to court, it then specifically prohibited suing over fee schedule decisions by the secretary.

Meanwhile, ACC proceeded to file suit against the secretary, alleging the same misuse of survey data that ACR evaluated. After extensive submissions by ACC and the government, the U.S. District Court quickly dismissed the case, holding that the court did not have jurisdiction to consider ACC's claims because Congress had prohibited judicial review of such claims.1

As another example, in 2012, six primary care physicians sued to stop the secretary and the CMS administrator from using the AMA Relative Value Update Committee (RUC) as part of the process to set the physician fee schedule (PFS), on the basis that the RUC favored the medical specialties over general practitioners. The court dismissed the case without a hearing, stating,

Accepting as true that RUC plays a major role in the formation of the PFS and also accepting as true that this role unfairly skews the PFS toward certain medical professions and procedures, the court, nonetheless, finds that Congress has precluded courts from reviewing, not only the final relative values and RVUs, but also the method by which those values and units are generated.

Even when a lawsuit is permitted, however, Congress can change the rules in the middle of the game. You may recall that, in 2002, a group of residents brought a class-action lawsuit against the National Resident Matching Program (NRMP), nicknamed "the Match," and its sponsoring bodies, including the Association of American Medical Colleges, the AMA, the American Hospital Association, the American Board of Medical Specialties, the Council of Medical Specialty Societies, and the Accreditation Council on Graduate Medical Education. The residents alleged that the defendants conspired to restrain competition in the recruitment, hiring, employment, and compensation of residents in violation of antitrust law. After a U.S. District Court judge denied the defendants' motion to dismiss the case, the NRMP turned to friends in Congress, who quickly passed a law specifically exempting the Match from application of antitrust law. Shortly thereafter, the lawsuit was dismissed.

As a result, ACR leaders concluded that, even if the College were to win at the district-court level, Congress would very likely amend the law to push the College out of court and ensure that the image-related savings projected by HHS were protected.

1. American College of Cardiology v. Sebelius, Civ. No. 09-62034 (S.D. Fla. Apr. 26, 2010).

By Bill Shields, JD, LLM, CAE, and Tom Hoffman, JD, CAE

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