Wednesday, January 13, 2010

Doctor Paycut Suit Score: HHS 1, ACC 0

It's hard to bring a suit against lawyers. As case in point, from
A U.S. District Court judge in Fort Lauderdale, Fla., has denied the American College of Cardiology's request for a preliminary injunction to block a scheduled Medicare reimbursement cut for cardiology services.

The ACC, its Florida chapter and other cardiology organizations filed a lawsuit against HHS Secretary Kathleen Sebelius on Dec. 28, seeking to stop the pay cut on the grounds that is based on the “erroneous and flawed” Physician Practice Information Survey. The ACC said Medicare payment cuts for 37,000 cardiologists are being based on the practice expenses of 55 doctors.

In addition to denying the injunction, Judge William Dimitrouleas denied a request for expedited discovery and canceled a scheduled hearing.

“We are deeply disappointed in the judge's decision not to hear our case on the preliminary injunction based on his opinion that the federal courts do not have jurisdiction to review Medicare physician payment determinations,” ACC CEO Jack Lewin said in a news release.
And from the ACC Advocate newsletter:
Basically, the judge refused to hear our case on jurisdictional grounds, finding that statutory language governing the Medicare program precludes judicial review of the relative value units and the methods for determining the RVUs in the Medicare fee schedule.
Interesting. So it seems that federal courts don't have jurisdiction over a federal program like Medicare's labyrinthine processes. Then who does?

(Maybe a sympathetic lawyer out there could explain this ruling to us not so legally inclined.)



ray said...

Dr.Wes, I don't see any apprehension about this in the hospitals where I work. Our hospitalists don't still understand the implications of these changes,we got a crash course on AI modifier etc, one cardiologist said this does not affect him and will see some decline in few years ( we have lot of private insur here). Is this more of a statement that ACC wants to make or there is a Real loss?

DrWes said...


The cuts imposed by the loss of Medicare consult code payments in hospitals and clinics that begam 1 Jan 2010 (which I think you're talking about in your comment) are not the issues being disputed by the ACC. At present, many hospitals (including ours) think the loss of consultation payments will not make a large impact on their bottom line, in part because the loss of consult revenues are are partially offset by slighly higher E&M reimbursements. (Private insurers, as you point out, have not made to change yet and so the old rules still apply - for now.)

Instead, the ACC's complaint alleged that Katherine Sebelius, in her capacity as HHS secretary, unlawfully adopted the payment rates for cardiology services in the 2010 Medicare Physician Fee Schedule in a manner that threatened access to patient care and precipitously increases Medicare costs. According to the complaint, clear and critical defects exist within the Physician Practice Information Survey (PPIS), which was used to justify the 40% cuts to Medicare reimbursements rates for echocardiography and 36% cuts for nuclear imaging studies and which directly undermine the viability of community practices. (You can read the entire complaint here.)

Keith said...


I am not clear why ACC is pushing this lawsuit, other than lobbying attempts have obviously not been successful and this is the only alternative that exists. But if you look at Medicare as an insurer like any other insurer, you have the choice to walk away from taking this insurance (I would grant you a tough one for a specialty that derives a big share of its income from this insurer) or swallow hard and accept this decrease.

It seems clear to me that Medicare is attempting to level the playing field between heavily proceduralized fields and those that are not, which from my point of view, does not seem like a bad strategy. If you derive the same income from speniding your time reading an echo or seeing and advising a patient, then there wil be less incentive to order more of these tests. Currently, it seems that cardiologist heavily subsidize their income off of these tests and procedures (mainly the non interventionalists). Will this alter this behavior of ordering yearly echocardiograms and stress tests which are done for no apparent reason that I can see in many practices, as a means of increasing ones income (please corect me if I am wrong that annual stress testing in patients with CAD is of little benefit)?

Gastroenterolgy constantly compalins about its reimbursement on "oscopies" and now the cardiologists will join the chorus with this round of cuts to testing procedures. Radiology is the other area that they are going at to take the profit motive out of the equation, having cut facility fees dramatically to make it less attractive for groups to open diagnostic facilities. Eventually, time spent would be on a parity level for docs with some increase for say surgical and cardiac interventional procedures to provide the differential for those professions requiring additional training and expertise. But what you are seeing is Medicare trying to use market incentives to disuade us from ordering these tests for questionable indications as a method of generating more revenue.

If you want an example of this in action, look at laboratory testing where many internists used to have labs in their office, but this is now non existent due to the fact reimbursement has fallen so drastically that the only way to skim some profit is with huge volumes. This strategy will push this diagnostic testing back to the hospital enviorment and likely make doctor owned equipment and testing less desireable and this is what the goverment wants, given the fact that doctors who own the equipment and derive profit from the testing tend to do alot more testing than those who don't.

That is the strategy as I see it.

Anonymous said...

The problem is AMA and the ridiculous RUC board where only 5/23 are primary care members and rest are specialists and over past decade it favored procedural reimbursements heavily leading to this and now needing to reverse some of it.

The Happy Hospitalist said...

The best way for the ACC to get a change in Medicare payment rates would be for the ACC to recommend all cardiologists exit the Medicare system.

Lawsuit? Nah, that won't work.

Having your state Senatosr try to explain to 50 million elderly people why they have to pay $10,000 for their heart cath?

Now THAT will get the wheels turning. The best solution to dropping Medicare rates is simply to stop accepting them.

CriticalCareRN said...

I agree with you, the Happy Hospitalist, and I feel that very thing is on the horizon - and perhaps not just with cardiology.

The unfortunate truth seems to be that doctors have very little defense against the sleazy shenanigans of the U.S. government - particularly since the AMA became an entity more interested in protecting their monopoly on billing codes over patient access and physician retention and recruitment.

Sadly, the real losers, again, will be the patients on Medicare/Medicaid, when physicians will have no choice but to use them as pawns to send their clear message to Washington - who otherwise refuses to listen and ensure appropriate patient access and care.

The fact that the Mayo Clinic reports losses of 840 billion through Medicare should not be lost on deaf ears, but apparently it is.

Keith said...

Critical Care Nurse,

One must be very careful in interpreting the supposed losses due to Medicare. Are these losses calcualated from the actual cost of the service or are they predicated on the hospitals usual and customary fee? Ususally these are calculated off of the latter, and as we all know, medical customary fees, especially with hospital charges, are extradonarily inflated above the actual cost of the service.

And I presume you meant 840 million; not billion!

CriticalCareRN said...


Perhaps you could look to the CMS report on fee updates. Their report was that between the years of 1992 and 2010, the Medicare Economic Index (MEI - inflation of costs to provide care) has increased 54.8%, while reimbursements have risen only 11%.

Try looking at this:

First - Directly from the CMS website, the MEI is defined:

"The MEI is a measure of inflation faced by physicians with respect to their practice costs and general wage levels."

They don't say, "inflation imposed by hospitals, and fee increases from providers".

To view their report on the 54.8% increase in their costs to provide care, while their reimbursement updates have only been 11%, see this site. The specific report is at the bottom toward the right, sgr2010p.pdf

And, yes, I did mean million, NOT billion. Billion and trillion seem to be very common and all too readily used and familiar terms these days.

CriticalCareRN said...

Keith -

Specifically - Table 6, on page 8 of that document shows the MEI versus Physician update.

Anonymous said...

Kathleen Sebelius isn't a lawyer. I think you mean it's hard to bring a case against the government.