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Family Physicians Sue to Shine Light on RUC Deliberations, Claim Specialists Skew Reimbursement Against Primary Care
Family Physicians Sue to Shine Light on RUC Deliberations, Claim Specialists Skew Reimbursement Against Primary Care by ERIC BERGER Special Contributor to Annals News & Perspective
A
rguing that specialists unfairly dominate a secretive committee of physicians that recommends reimbursement rates for Medicare procedures and services, a small group of Georgia physicians has sued the federal government to open up the process and make it more responsive to primary care. The legal complaint, filed by 6 family physicians from the Center for Primary Care in Evans, GA, centers on public access to deliberations by the 29-member Relative Value Scale Update Committee (RUC). Organized by the American Medical Association (AMA), the RUC has advised the US Department of Health and Human Services for more than 2 decades on pay rates for procedures covered by Medicare. “By law, the RUC needs to be a lot more of an open process than it presently is,” said Paul Fischer, MD, one of the 6 plaintiffs in the lawsuit filed in August in Volume , . : March
the US District Court of Maryland. The federal government was due to respond to the initial complaint in mid-October. The government and AMA have not commented on the lawsuit, aside from a statement released by Barbara Levy, MD, chair of the RUC: “The RUC is an independent panel of physicians from all medical specialties, including primary care, who make recommendations to CMS [Centers for Medicare & Medicaid Services] as all citizens have a right to do. These volunteers provide physicians’ voice and expertise to Medicare decisionmakers through their recommendations.” Whether or not the lawsuit results in change, it has certainly heightened debate over the RUC committee, which has reviewed more than 7,000 Current Procedural Terminology codes and whose recommendations of reimbursement rates for medical procedures CMS have followed more than 90% of the time. The lawsuit seeks to overturn a well-established process that dates to 1991, when it was created in response to the federal government’s decision to decrease the cost of Medicare by fixing rates for every proce-
dure rather than simply paying, in most cases, what physicians charged. The RUC, which first met in November 1991, became the way the medical community helped the federal government set up its pricing structure for Medicare. Dr. Fischer said he was largely unaware of the process until a couple of years ago, when he began to try to understand why, in his view, the practice of family medicine had become devalued by students and underreimbursed by the federal government and insurance companies. What he found, he said, was a committee dominated by specialists who favored reimbursement for procedures rather than primary care. Emergency physicians, Dr. Fischer said, share common cause with family physicians with respect to the RUC because of the cognitive nature of the care they provide in the emergency department.
EMERGENCY PHYSICIANS AND PRIMARY CARE PHYSICIANS “
E
mergency physicians are in many ways like primary care doctors,” Dr. Fischer said. “They’re paid on their cognitive services. They’re not out there doing lots of procedures like cardiologists. In the hospital, everybody else around them is getting high rates of reimbursement, but they’re not getting that for evaluations.” Emergency physicians have a voice in the RUC process. The American College of Emergency Physicians (ACEP) has a permanent voting seat on the committee, presently held by Michael D. Bishop, MD, president and chief executive officer of Unity Physician Group in Bloomington, IN. In his role, Dr. Bishop can vote on all matters before the RUC but does not speak on behalf of emergency medicine. For proposals brought before the RUC by ACEP, the lead advocate is Ethan Booker, MD, an attending physician at Georgetown University Hospital. Annals of Emergency Medicine 19A
On the whole, emergency medicine fares quite well with the RUC process, said David A. McKenzie, CAE, who has staffed the committee for ACEP for 16 years. “Emergency medicine has participated in the RUC process since its inception and has generally done well with the process,” Mr. McKenzie said. “Our presentations are based on survey data from physicians that perform the service in question, and the resulting RUC recommendations have been fair. In general, the RUC values come out about where they should be. Of course it is up to CMS to accept or reject the RUC recommendations and translate those relative values into payments. ACEP certainly favors a process that allows our direct participation. It only makes sense to have the individuals that actually perform the service provide input into the work involved.” The RUC is not without critics beyond Dr. Fischer and his colleagues. Such critics say the committee has too much control over the $500 billion in taxpayer money that flows through Medicare and places too much emphasis on funding expensive procedures while shortchanging primary and preventative care that could save money. “It’s indefensible,” said Tom Scully, a former administrator of the Medicare and Medicaid agency, in an October 2010 Wall Street Journal article. “It’s not healthy to have the interested party essentially driving the decisionmaking process.”
IS THE RUC A FAC?
T
he basic contention of the lawsuit is that, by providing guidance to health care officials, the RUC is a de facto federal advisory committee, of which there are more than 1,000, which are governed by the Federal Advisory Committee Act. Federal rules require these committees to have balanced representation and to be transparent to the public. “The composition of the AMA RUC is highly biased towards procedural specialties, and particularly surgical specialties,” the lawsuit states in regard to balanced representation. “Indeed, only two seats on the AMA RUC actually represent pri-
20A Annals of Emergency Medicine
mary care. In addition, the seat for internal medicine, which directs an increasingly small percentage of its specialists to primary care, is filled by an oncologist who works for the American Cancer Society. In general the ‘cognitive’ medical disciplines, those involving complex tasks of evaluation, discernment, medical management, and comprehensive patient care, are drastically underrepresented on the AMA RUC, and this process results in direct harm to their ability to obtain the valuations to which their services are entitled.” As for transparency, the lawsuit states, “The public is not invited to the AMA RUC meetings. The public does not have any input into the agenda for AMA RUC meetings. The public does not have any way to access the proceedings of the AMA RUC meetings through transcript or recording, or even minutes of the proceedings.” It was this secrecy that led Dr. Fischer and the other Georgian physicians to file the lawsuit. “The RUC is, in contrast to the federal advisory committees, cloaked in secrecy,” Dr. Fischer said. “Its decisions have reflected more of a horse-trading process than a rational measurement. The fact is that CMS has turned over this responsibility for pricing one seventh of the US economy to a secret committee of the AMA.” The lawsuit does not seek to abolish the RUC but rather calls for the creation of a federal advisory committee on Medicare reimbursement that both meets openly and allows public access to its records. Dr. Fischer said he and his colleagues felt compelled to file the lawsuit after obtaining what he believed was only nominal support on the issue through his professional organization, the American Academy of Family Physicians (AAFP). The family physicians professional organization declined to join the lawsuit because it is focused on addressing perceived inequities through the Primary Care Valuation Task Force, which it created this summer before the lawsuit was filed. The organization’s task force will review the methods used to evaluate health care services for Medicare and make recommendations about how to im-
prove valuations for primary care physician services. The task force’s creation came as the AAFP has faced growing criticism from its membership because of the RUC process. In May family physicians who attended the AAFP’s National Conference of Special Constituencies voted in favor of a resolution that called for the organization to withdraw from the RUC process. “We came to the consensus that now is the time for us to go ahead and pull out of the RUC to delegitimize it—to state publicly that it does not represent primary care, to state publicly that it does not represent 100,000 family physicians,” said Robyn Liu, MD, a new physician delegate from Tribune, KS, and a coauthor of the resolution, according to AAFP News Now.
CHANGES URGED
I
n response to these concerns, along with creating the task force, the AAFP sent a letter in June to RUC chair Dr. Levy, urging that changes be made to the committee to more appropriately value the services of primary care physicians. “As you know, the AAFP has been concerned for some time about the composition of the RUC and the manner in which it conducts its business,” wrote Lori J. Heim, MD, chair of the AAFP board of directors. “We continue to believe that the RUC would benefit from additional primary care expertise and the perspectives of other stakeholders in the health care system. Although the work of the RUC is very technical, there are many non-physicians who have the experience and sophistication to add to the discussion.” As part of the letter, the AAFP made several recommendations to Dr. Levy, including 2 additional seats bringing the total to 4 seats (1 each for the AAFP, American Academy of Pediatrics, American College of Physicians, and American Osteopathic Association), the elimination of the 3 current “rotating subspecialty seats,” and the implementation of transparency in the current opaque voting process. The family physicians asked for a response to their letter by March 2012. Richard Kaplan, an elder law expert and professor at the University of Illinois Volume , . : March
College of Law, said there may be problems with the current RUC process because there is a bias in government and private insurance to pay for procedures rather than cognitive services such as patient counseling. This problem has been exacerbated with health care reform, which seeks to reduce barriers to patients seeing physicians by removing barriers such as copayments during physician visits. As a result, Kaplan said, the offices of geriatricians have been flooded with patients seeking services and lengthy consultations for which reimbursements are relatively low. But setting that aside, Kaplan said, because the RUC process has been used for more than 25 years and it posts its schedule information properly in the federal register, the plaintiffs may have a difficult time getting relief from the federal courts. “One of their complaints is that Medicare is misallocating its resources, and that may be a great argument. It may have a lot of validity,” he said. “But the federal court is probably not going to
make a decision on that. This is an issue you have to redirect to the Department of Health and Human Services, or the Ways and Means committee in Congress. I just don’t think the court is going to get involved in that.” Eventually Dr. Fischer believes Congress will get involved in settling his concerns with the RUC, especially with lawmakers looking for ways to trim the federal budget as the US economy struggles to recover from a deep recession. By reevaluating the RUC process, he said, Congress will have a mechanism to reduce payments for expensive procedures. Dr. Fischer noted the conviction in July 2011 of Maryland physician John McLean for fraudulently submitting insurance claims for inserting more than 100 unnecessary cardiac stents, ordering unnecessary tests, and making false entries in patient medical records to defraud Medicare, Medicaid, and private insurers. That is not to say physicians commonly defraud health care payers by ordering
Blinded by the Brandeisian Light The HRSA/Bavley Database Case
by WILLIAM B. MILLARD, PHD Special Contributor to Annals News & Perspective
A
n investigative reporter’s work in Kansas City triggered an unexpected response within the Beltway, leading to broad repercussions for physicians, journalists, researchers, and ultimately patients. Health reporter Alan Bavley of the Kansas City Star used publicly available documents and data to identify a neurosurgeon in the Kansas City suburbs who had a long, troubling record of claims and payments (and, in at least 1 well-publicized case, misleading attempts at damage control) but had come under no disciplinary action by Volume , . : March
Kansas licensing officials. Anticipating that his articles would encounter opposition, Bavley took steps to mitigate the inevitable adversarial atmosphere, offering the surgeon and his attorney a chance to respond before publication. He did not, however, expect the repercussions to include a federal administrative decision to deactivate a key online resource he had used, one that scholars, reporters, and medical quality control advocates have described as indispensable: the Public Use File (PUF) component of the National Practitioner Data Bank (NPDB), maintained by the Health Resources and Services Administration (HRSA). Bavley’s work triggered 3 strong reactions. One was an energetic self-defense
unnecessary tests or conducting unnecessary procedures, Dr. Fischer said, but it is indicative of where the money is to be found in the present-day health care system. “Nobody is out there doing unnecessary well-baby visits,” he said. Section editor: Truman J. Milling, Jr, MD Funding and support: By Annals policy, all authors are required to disclose any and all commercial, financial, and other relationships in any way related to the subject of this article as per ICMJE conflict of interest guidelines (see www.icmje.org). The author has stated that no such relationships exist. The views expressed in News and Perspective are those of the authors, and do not reflect the views and opinions of the American College of Emergency Physicians or the editorial board of Annals of Emergency Medicine. doi:10.1016/j.annemergmed.2012.01.003
by the implicated neurosurgeon, Robert T. Tenny, MD, and his attorney, Charles R. Hay, JD (operating largely behind the scenes until Sen. Charles Grassley [RIowa], taking an interest in the incident, ordered HRSA to release his communications for public examination). HRSA responded on the individual level, warning Bavley of dire consequences if he published his findings; the local level, contacting 28 hospitals to stifle presumed (but never-corroborated) leakage of information; and the national level, removing the PUF from use on September 1, even before the pivotal article1 appeared. This in turn evoked an outpouring of support for Bavley and for restoration of the PUF by proponents of information transparency and quality control.2 The incident has become a flashpoint for debates about the appropriate balance between privacy and transparency in public records bearing on professional standards. The Association of Health Care Journalists, Investigative Reporters and Editors, the National Association of Science Writers, the National Freedom of Information Coalition, the Reporters Committee for Freedom of the Press, the Society Annals of Emergency Medicine 21A
A
rguing that specialists unfairly dominate a secretive committee of physicians that recommends reimbursement rates for Medicare procedures and services, a small group of Georgia physicians has sued the federal government to open up the process and make it more responsive to primary care. The legal complaint, filed by 6 family physicians from the Center for Primary Care in Evans, GA, centers on public access to deliberations by the 29-member Relative Value Scale Update Committee (RUC). Organized by the American Medical Association (AMA), the RUC has advised the US Department of Health and Human Services for more than 2 decades on pay rates for procedures covered by Medicare. “By law, the RUC needs to be a lot more of an open process than it presently is,” said Paul Fischer, MD, one of the 6 plaintiffs in the lawsuit filed in August in Volume , . : March
the US District Court of Maryland. The federal government was due to respond to the initial complaint in mid-October. The government and AMA have not commented on the lawsuit, aside from a statement released by Barbara Levy, MD, chair of the RUC: “The RUC is an independent panel of physicians from all medical specialties, including primary care, who make recommendations to CMS [Centers for Medicare & Medicaid Services] as all citizens have a right to do. These volunteers provide physicians’ voice and expertise to Medicare decisionmakers through their recommendations.” Whether or not the lawsuit results in change, it has certainly heightened debate over the RUC committee, which has reviewed more than 7,000 Current Procedural Terminology codes and whose recommendations of reimbursement rates for medical procedures CMS have followed more than 90% of the time. The lawsuit seeks to overturn a well-established process that dates to 1991, when it was created in response to the federal government’s decision to decrease the cost of Medicare by fixing rates for every proce-
dure rather than simply paying, in most cases, what physicians charged. The RUC, which first met in November 1991, became the way the medical community helped the federal government set up its pricing structure for Medicare. Dr. Fischer said he was largely unaware of the process until a couple of years ago, when he began to try to understand why, in his view, the practice of family medicine had become devalued by students and underreimbursed by the federal government and insurance companies. What he found, he said, was a committee dominated by specialists who favored reimbursement for procedures rather than primary care. Emergency physicians, Dr. Fischer said, share common cause with family physicians with respect to the RUC because of the cognitive nature of the care they provide in the emergency department.
EMERGENCY PHYSICIANS AND PRIMARY CARE PHYSICIANS “
E
mergency physicians are in many ways like primary care doctors,” Dr. Fischer said. “They’re paid on their cognitive services. They’re not out there doing lots of procedures like cardiologists. In the hospital, everybody else around them is getting high rates of reimbursement, but they’re not getting that for evaluations.” Emergency physicians have a voice in the RUC process. The American College of Emergency Physicians (ACEP) has a permanent voting seat on the committee, presently held by Michael D. Bishop, MD, president and chief executive officer of Unity Physician Group in Bloomington, IN. In his role, Dr. Bishop can vote on all matters before the RUC but does not speak on behalf of emergency medicine. For proposals brought before the RUC by ACEP, the lead advocate is Ethan Booker, MD, an attending physician at Georgetown University Hospital. Annals of Emergency Medicine 19A
On the whole, emergency medicine fares quite well with the RUC process, said David A. McKenzie, CAE, who has staffed the committee for ACEP for 16 years. “Emergency medicine has participated in the RUC process since its inception and has generally done well with the process,” Mr. McKenzie said. “Our presentations are based on survey data from physicians that perform the service in question, and the resulting RUC recommendations have been fair. In general, the RUC values come out about where they should be. Of course it is up to CMS to accept or reject the RUC recommendations and translate those relative values into payments. ACEP certainly favors a process that allows our direct participation. It only makes sense to have the individuals that actually perform the service provide input into the work involved.” The RUC is not without critics beyond Dr. Fischer and his colleagues. Such critics say the committee has too much control over the $500 billion in taxpayer money that flows through Medicare and places too much emphasis on funding expensive procedures while shortchanging primary and preventative care that could save money. “It’s indefensible,” said Tom Scully, a former administrator of the Medicare and Medicaid agency, in an October 2010 Wall Street Journal article. “It’s not healthy to have the interested party essentially driving the decisionmaking process.”
IS THE RUC A FAC?
T
he basic contention of the lawsuit is that, by providing guidance to health care officials, the RUC is a de facto federal advisory committee, of which there are more than 1,000, which are governed by the Federal Advisory Committee Act. Federal rules require these committees to have balanced representation and to be transparent to the public. “The composition of the AMA RUC is highly biased towards procedural specialties, and particularly surgical specialties,” the lawsuit states in regard to balanced representation. “Indeed, only two seats on the AMA RUC actually represent pri-
20A Annals of Emergency Medicine
mary care. In addition, the seat for internal medicine, which directs an increasingly small percentage of its specialists to primary care, is filled by an oncologist who works for the American Cancer Society. In general the ‘cognitive’ medical disciplines, those involving complex tasks of evaluation, discernment, medical management, and comprehensive patient care, are drastically underrepresented on the AMA RUC, and this process results in direct harm to their ability to obtain the valuations to which their services are entitled.” As for transparency, the lawsuit states, “The public is not invited to the AMA RUC meetings. The public does not have any input into the agenda for AMA RUC meetings. The public does not have any way to access the proceedings of the AMA RUC meetings through transcript or recording, or even minutes of the proceedings.” It was this secrecy that led Dr. Fischer and the other Georgian physicians to file the lawsuit. “The RUC is, in contrast to the federal advisory committees, cloaked in secrecy,” Dr. Fischer said. “Its decisions have reflected more of a horse-trading process than a rational measurement. The fact is that CMS has turned over this responsibility for pricing one seventh of the US economy to a secret committee of the AMA.” The lawsuit does not seek to abolish the RUC but rather calls for the creation of a federal advisory committee on Medicare reimbursement that both meets openly and allows public access to its records. Dr. Fischer said he and his colleagues felt compelled to file the lawsuit after obtaining what he believed was only nominal support on the issue through his professional organization, the American Academy of Family Physicians (AAFP). The family physicians professional organization declined to join the lawsuit because it is focused on addressing perceived inequities through the Primary Care Valuation Task Force, which it created this summer before the lawsuit was filed. The organization’s task force will review the methods used to evaluate health care services for Medicare and make recommendations about how to im-
prove valuations for primary care physician services. The task force’s creation came as the AAFP has faced growing criticism from its membership because of the RUC process. In May family physicians who attended the AAFP’s National Conference of Special Constituencies voted in favor of a resolution that called for the organization to withdraw from the RUC process. “We came to the consensus that now is the time for us to go ahead and pull out of the RUC to delegitimize it—to state publicly that it does not represent primary care, to state publicly that it does not represent 100,000 family physicians,” said Robyn Liu, MD, a new physician delegate from Tribune, KS, and a coauthor of the resolution, according to AAFP News Now.
CHANGES URGED
I
n response to these concerns, along with creating the task force, the AAFP sent a letter in June to RUC chair Dr. Levy, urging that changes be made to the committee to more appropriately value the services of primary care physicians. “As you know, the AAFP has been concerned for some time about the composition of the RUC and the manner in which it conducts its business,” wrote Lori J. Heim, MD, chair of the AAFP board of directors. “We continue to believe that the RUC would benefit from additional primary care expertise and the perspectives of other stakeholders in the health care system. Although the work of the RUC is very technical, there are many non-physicians who have the experience and sophistication to add to the discussion.” As part of the letter, the AAFP made several recommendations to Dr. Levy, including 2 additional seats bringing the total to 4 seats (1 each for the AAFP, American Academy of Pediatrics, American College of Physicians, and American Osteopathic Association), the elimination of the 3 current “rotating subspecialty seats,” and the implementation of transparency in the current opaque voting process. The family physicians asked for a response to their letter by March 2012. Richard Kaplan, an elder law expert and professor at the University of Illinois Volume , . : March
College of Law, said there may be problems with the current RUC process because there is a bias in government and private insurance to pay for procedures rather than cognitive services such as patient counseling. This problem has been exacerbated with health care reform, which seeks to reduce barriers to patients seeing physicians by removing barriers such as copayments during physician visits. As a result, Kaplan said, the offices of geriatricians have been flooded with patients seeking services and lengthy consultations for which reimbursements are relatively low. But setting that aside, Kaplan said, because the RUC process has been used for more than 25 years and it posts its schedule information properly in the federal register, the plaintiffs may have a difficult time getting relief from the federal courts. “One of their complaints is that Medicare is misallocating its resources, and that may be a great argument. It may have a lot of validity,” he said. “But the federal court is probably not going to
make a decision on that. This is an issue you have to redirect to the Department of Health and Human Services, or the Ways and Means committee in Congress. I just don’t think the court is going to get involved in that.” Eventually Dr. Fischer believes Congress will get involved in settling his concerns with the RUC, especially with lawmakers looking for ways to trim the federal budget as the US economy struggles to recover from a deep recession. By reevaluating the RUC process, he said, Congress will have a mechanism to reduce payments for expensive procedures. Dr. Fischer noted the conviction in July 2011 of Maryland physician John McLean for fraudulently submitting insurance claims for inserting more than 100 unnecessary cardiac stents, ordering unnecessary tests, and making false entries in patient medical records to defraud Medicare, Medicaid, and private insurers. That is not to say physicians commonly defraud health care payers by ordering
Blinded by the Brandeisian Light The HRSA/Bavley Database Case
by WILLIAM B. MILLARD, PHD Special Contributor to Annals News & Perspective
A
n investigative reporter’s work in Kansas City triggered an unexpected response within the Beltway, leading to broad repercussions for physicians, journalists, researchers, and ultimately patients. Health reporter Alan Bavley of the Kansas City Star used publicly available documents and data to identify a neurosurgeon in the Kansas City suburbs who had a long, troubling record of claims and payments (and, in at least 1 well-publicized case, misleading attempts at damage control) but had come under no disciplinary action by Volume , . : March
Kansas licensing officials. Anticipating that his articles would encounter opposition, Bavley took steps to mitigate the inevitable adversarial atmosphere, offering the surgeon and his attorney a chance to respond before publication. He did not, however, expect the repercussions to include a federal administrative decision to deactivate a key online resource he had used, one that scholars, reporters, and medical quality control advocates have described as indispensable: the Public Use File (PUF) component of the National Practitioner Data Bank (NPDB), maintained by the Health Resources and Services Administration (HRSA). Bavley’s work triggered 3 strong reactions. One was an energetic self-defense
unnecessary tests or conducting unnecessary procedures, Dr. Fischer said, but it is indicative of where the money is to be found in the present-day health care system. “Nobody is out there doing unnecessary well-baby visits,” he said. Section editor: Truman J. Milling, Jr, MD Funding and support: By Annals policy, all authors are required to disclose any and all commercial, financial, and other relationships in any way related to the subject of this article as per ICMJE conflict of interest guidelines (see www.icmje.org). The author has stated that no such relationships exist. The views expressed in News and Perspective are those of the authors, and do not reflect the views and opinions of the American College of Emergency Physicians or the editorial board of Annals of Emergency Medicine. doi:10.1016/j.annemergmed.2012.01.003
by the implicated neurosurgeon, Robert T. Tenny, MD, and his attorney, Charles R. Hay, JD (operating largely behind the scenes until Sen. Charles Grassley [RIowa], taking an interest in the incident, ordered HRSA to release his communications for public examination). HRSA responded on the individual level, warning Bavley of dire consequences if he published his findings; the local level, contacting 28 hospitals to stifle presumed (but never-corroborated) leakage of information; and the national level, removing the PUF from use on September 1, even before the pivotal article1 appeared. This in turn evoked an outpouring of support for Bavley and for restoration of the PUF by proponents of information transparency and quality control.2 The incident has become a flashpoint for debates about the appropriate balance between privacy and transparency in public records bearing on professional standards. The Association of Health Care Journalists, Investigative Reporters and Editors, the National Association of Science Writers, the National Freedom of Information Coalition, the Reporters Committee for Freedom of the Press, the Society Annals of Emergency Medicine 21A