The Congressional Forecast for Radiologythe congressional forecast

2010 was another hectic year of the Economics and Government Relations Department. With the election of Sen. Scott Brown, R-Mass., to the U.S. Senate last January, many believed that comprehensive health-care reform legislation could not be passed.

However, at the Obama administration's urging, the Patient Protection and Affordable Care Act, H.R. 3590 (PPACA), was enacted in March through the use of reconciliation, a legislative vehicle that circumvented a cloture vote in the Senate.

Despite years of lobbying efforts, radiology was the only physician specialty targeted for reduced payments. Specifically, the equipment-usage assumption changed from 50 percent to 75 percent and the multiple-procedure payment reduction (MPPR) increased from 25 percent to 50 percent. Both of these reductions affect how the technical-component payment is calculated and will target physician-owned outpatient imaging centers and independent diagnostic testing facilities. The ACR worked extensively with Senate leaders to achieve a 65-percent equipment-usage assumption in its version of the bill, but, unfortunately, the House language on this issue prevailed.

The health-care reform legislation failed to achieve many of organized medicine's state goals. Notably absent from the bill was a permanent fix for the sustainable growth-rate formula used to calculate the Medicare conversion factor. This has required a series of congressional "fixes" to prevent as much as a 23-percent cut in Medicare payments for all physicians. Without another congressional fix, the CMS projects an additional six-percent decrease in the conversion factor for 2011.

Also absent from the legislation was meaningful tort reform. As a result of these issues, many state medical societies and some specialty societies have openly opposed the PPACA legislation.

Additionally, the PPACA creates the Independent Payment Advisory Board (IPAB), which is authorized to recommend reductions in Medicare payments to providers. These recommendations will go into effect unless 60 percent (in Congress) vote to overturn the decision.

The PPACA also authorizes governmental agencies, such as the U.S. Preventive Services Task Force (USPSTF), to create "evidence-based" policies to cover medical services. However, due to public and congressional outrage, the USPSTF 2009 recommendations for limiting screening mammography were excluded from the mandate by subsequent legislation.

Due to the advocacy of government relations staff on behalf of our specialty, the final equipment-utilization assumption was less than both the White House's proposed 95 percent and the initial House bill (75 percent). During the process, proposals were also submitted for a separate conversion factor for radiology and for prior authorization by radiology benefit management companies. However, as a result of our efforts, these proposals did not make it into the health-care legislation.

The attention given to self-referral as part of the PPACA discussions prompted several House committee chairs to ask the Government Accountability Office to study the issue in more detail. As a result, the effect of self-referral on the growth of imaging was an important part of the Medicare Payment Advisory Commission's September 2010 meeting.

The process of moving from legislation to regulation began in June with the Notice of Proposed Rule Making for the 2011 Physician Fee Schedule. In the proposed rule, the CMS went beyond the legislation and continues to specifically target radiology for additional payment reductions. The agency proposes applying the MPPR to noncontiguous body parts and across different modalities.

Furthermore, the CMS is considering an MPPR for the professional component despite the work of the Relative Value Update Committee (RUC) and the Current Procedural Terminology® (CPT®) Editorial Panel to develop and value new CPT codes for bundled services. The agency proposed a lengthy list of radiology services for the RUC to review based on the legislative mandates.

Finally, will the 2010 elections and the composition of the 112th Congress provide an opportunity for substantive legislative change? There will not be enough votes to overturn health-care reform; however, certain provisions, including the IPAB, may be reconsidered.
In the absence of legislative backing, the executive branch will likely expand its use of regulatory processes to advance its agenda; correspondingly, look for the CMS to develop even more payment policies beyond the scope of legislative mandates. Simultaneously, Congress (especially House members) will probably use its oversight authority to potentially reign in some executive policies.

We will continue to use our influence on Capitol Hill to help direct some of these oversight efforts to issues where the CMS may have overstepped the legislative mandates. However, a change in the balance of power will not be enough. Continued education for congressional members and more grassroots advocacy from our members will be needed to help advance our agenda in Congress.

bibb allen jrBy Bibb Allen Jr., M.D., FACR

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