As I promised before leaving for the holidays, ACC staff has been hard at work fighting the final 2010 Physician Fee Schedule, which is just days from going into effect. On Monday, the College filed an injunction against Secretary Sebelius alleging that she unlawfully adopted the payment rates for cardiology services, in a manner that threatens patient access to care and increases Medicare costs. From the ACC Advocate:

December 29, 2009

The time for legal action is NOW! Yesterday, the ACC filed a complaint, as well as motions for a preliminary injunction and expedited discovery, against Health and Human Services (HHS) Secretary Kathleen Sebelius, in U.S. District Court in Florida. The complaint alleges that Sebelius, in her capacity as HHS secretary, unlawfully used an invalid physician practice information survey (PPIS) to set the payment rates for cardiology services in the 2010 Medicare Physician Fee Schedule in a manner that threatens patient access to care and precipitously increases Medicare costs by driving cardiologists out of community practice.

According to the complaint, clear and critical defects exist within the PPIS, which was used to justify cuts to Medicare reimbursements rates for cardiology and which directly undermines the viability of community practices. Your ACC, along with the Florida ACC Chapter, American Society of Nuclear Cardiology, the Association of Black Cardiologists and the Cardiology Advocacy Alliance, are seeking a preliminary injunction against the implementation of the 2010 fee schedule rates for cardiologists and asking the court to rule it invalid and order HHS to use more reliable data that is available or commission a new practice expense survey. Read the complaint! It will make you even more determined to work with us until we prevail.

The lawsuit is filed. What's next? We hope the court will schedule a hearing on the College's motion for a preliminary injunction prior to Jan. 15, before any 2010 Medicare payments are actually issued. We also hope the court will grant our motion for expedited discovery of CMS and others involved in the development and analysis of the PPIS. Of course, the court may decide not hear our motions prior to implementation of the fee schedule and/or not grant either motion. Should the government try and have our right to bring this suit blocked by the court we will vigorously contest that effort.

While the probability of success in any legal action can be difficult to gauge, the College would not have taken this action, if we did not believe strongly in the legitimacy of our claims. We can confidently say that we have fully pursued all regulatory and legislative options in an attempt to reach a reasonable compromise before having to resort to a lawsuit to protect practice viability and access to cardiovascular care. Unfortunately, despite the best efforts of many in Congress, there is no sign of a reprieve before the Jan. 1, 2010 deadline.

Our expectations are realistic, and we are aware that the Federal courts' general inclination to defer to the executive agencies in the implementation of their statutes and regulations with certain laws that protect aspects of the Medicare law from judicial involvement. But, we believe these do not preclude our challenge to the use of the PPIS. Also, should our legal efforts not succeed rest assured that the College will continue its legislative and regulatory efforts. Thanks to the tremendous grassroots efforts of the entire house of cardiology, we have made great strides in building a strong framework for fighting these cuts in 2010. We will continue to work with Congress, CMS and the Obama administration to resolve this issue and find a reasonable solution that minimizes the impact to other specialty societies, while addressing the unjustified and unreasonable cuts to cardiology.

We understand that the Medicare cuts are already having irreparable effects on cardiology practices across the country. On behalf of our patients and the future of cardiology, we will not give up until this injustice is rectified. For more on ACC's efforts, go to the Campaign for Patient Access Web site.

Also, our CVN studios has released the video below explaining the legal action. UPDATED: Full version of the video. UPDATE 2: Correct co-plaintiffs.

Lewin Report readers --

Thanks for a great year in 2009 despite difficult times for the nation's economy and for cardiology. The ACC will be closing tomorrow for the holiday season, and I'll be taking time off from the blog to enjoy time with my family. No worries: some ACC staff will continue to engage in our ongoing advocacy efforts. 

See you all in the New Year.

Thx, Jack

The Congenital Heart Futures Act is expected to pass as part of Sen. Reid’s (D-Nev.) Manager’s Amendment to the Senate health reform legislation. This is very exciting news. Our Adult Congenital and Pediatric Cardiology (ACPC) Section has been very active in promoting the bill, which aims to promote education, awareness and research in congenital heart disease. The passage of this bill would be a great beginning, along with our IMPACT Registry™, in bringing awareness to the growing population of adults with congenital heart problems.

*** Image from Flickr (marie-II). ***  

The Senate has been all over the place these last couple days. It sure looked like they weren’t going to get anything done before the Christmas recess, with the Republicans invoking the weird Senate rules to require that the clerks read all 2,000 pages of the HR 3590 and the thousands more pages of amendments out loud to delay everything and block a vote on cloture. They've gone through two of the three procedural votes needed to vote on the bill, hopefully on Christmas Eve. The third procedural vote is scheduled for tomorrow. It looks like the Senate health reform bill is going to happen.

That said, the Washington pundits are loudly emphasizing the fact that 61 percent of Americans in the most recent polls are leery of the Senate’s proposal, and more and more observers are concerned about the costs in view of a likely lingering large number of uninsured persons that would result from the holes in their measure. Even Howard Dean has come out against the bill

There’s a lot not to like and to be concerned about in what they’re doing, but I personally believe that the nation will be better off if we achieve a clumsy commitment to universal access, to improving quality and coordination of care, and to successfully reducing the slope of cost increases in health care. If we don’t, we will soon bankrupt Medicare and the federal budget and make health insurance premiums unaffordable for most families and businesses. Doing nothing isn’t much of a responsible action, even with the goofy elements of the Senate and House bills. Since the House version doesn’t kick in until 2013, and the Senate is likely to delay implementation another year to 2014, I think that whatever messy, 2,000-page bill is passed can be amended and fixed over the next three years.

I fully understand the views of those who want to reboot and start over. But, we’ve been saying that we will do that for 30 years. Just having a sense of direction is important. Just think about how dysfunctional the current Medicare payment formulas are, for example. We need to embark upon a process to reduce the administrative waste in our system, fix the Wall Street-based insurance injustices and design a more coordinated delivery system. It doesn’t have to be one that impoverishes physicians and nurses — in fact, a truly reformed system is going to need to empower health professionals to be effective. So, while I fully understand and empathize with the physicians, the professional societies and the members of the public who would rather do nothing and reboot the process, I honestly believe a little momentum — even with the severely flawed proposals before us — is needed. And, there will be time to try to get tort reform inserted in the process in January I suspect, and we are poised to attempt that. What else are we going to do for the next three years?

Rep. Gonzalez (D-Texas) last week introduced our legislation, H.R. 4371, to maintain cardiology payments at the current practice expense rate while moving ahead with Physician Practice Information Survey-supported increases for other specialties. The bill had a whopping 55 original cosponsors. That is a whopping number for any bill. It’s quite amazing. If your legislator is on the list, please be sure to thank them.

1. Rep. Adler (N.J.)
2. Rep. Akin (Mo.)
3. Rep. Arcuri (N.Y.)
4. Rep. Bartlett (Md.)
5. Rep. Berry (Ark.)
6. Rep. Biggert (Ill.)
7. Rep. Bishop (Ga.)
8. Rep. Bishop (N.Y.)
9. Rep. Boren (Okla.)
10. Rep. Butterfield (N.C.)
11. Rep. Carnahan (Mo.)
12. Rep. Castle (Dela.)
13. Rep. Christensen (U.S. Virgin Islands)
14. Rep. Clay (Mo.)
15. Rep. Cohen (Tenn.)
16. Rep. Conaway (Texas)
17. Rep. Courtney (Conn.)
18. Rep. Cuellar (Texas)
19. Rep. Cummings (Md.)
20. Rep. Dent (Pa.)
21. Rep. Diaz-Balart (Fla.)
22. Rep. Faleomavaega (American Samoa)
23. Rep. Garrett (N.J.)
24. Rep. Gerlach (Pa.)
25. Rep. Grayson (Fla.)
26. Rep. Griffith (Ala.)
27. Rep. Hall (Texas)
28. Rep. Hill (Ind.)
29. Rep. Himes (Conn.)
30. Rep. Israel (N.Y.)
31. Rep. Kagen (Wis.)
32. Rep. Kosmas (Fla.)
33. Rep. Kratovil (Md.)
34. Rep. LoBiondo (N.J.)
35. Rep. Lowey (N.Y.)
36. Rep. Luetkemeyer (Mo.)
37. Rep. Maffei (N.Y.)
38. Rep. Marchant (Texas)
39. Rep. Massa (N.Y.)
40. Rep. McCarthy (N.Y.)
41. Rep. McCollum (Minn.)
42. Rep. McIntyre (N.C.)
43. Rep. Meek (Fla.)
44. Rep. Moran (Va.)
45. Rep. Murphy (N.Y.)
46. Rep. Norton (D.C.)
47. Rep. Ortiz (Texas)
48. Rep. Paul (Texas)
49. Rep. Peters (Mich.)
50. Rep. Pitts (Pa.)
51. Rep. Roe (Tenn.)
52. Rep. Ruppersberger (Md.)
53. Rep. Rush (Ill.)
54. Rep. Scott (Ga.)
55. Rep. Thornberry (Texas)
56. Rep Wasserman Schultz (Fla.)
57. Rep. Wittman (Va.)

With the House now in recess, the next stop is the Senate. Please continue contacting your legislators and encouraging them to lend their support, whether by sponsoring the House bill or urging similar legislation in the Senate. Sen. Bill Nelson (D-Fla.) has agreed to lead a sign-on letter to Majority Leader Harry Reid (D-Nev.) and Minority Leader Mitch McConnell (R-Ky.) regarding the Medicare cuts. Please contact your senators ASAP and ask them to contact Madeline Otto at (202) 224-5274 or Madeline_Otto@Nelson.Senate.Gov to join the letter. For your Senators’ contact information, go to www.campaignforpatientaccess.org.

Working with the AMA and other specialty societies, we also succeeded in getting a Senate amendment to delay implementation of new Medicare consultation policy. Sen. Arlen Specter (D-Pa.) this week introduced the amendment, which would delay the elimination of payments for consultations provided in office and hospital settings. This new policy, which was included in the final Medicare rule, is set to start on Jan. 1, 2010 and would decrease payments to varying degrees for consultation services. Under the Specter amendment, the new policy would be delayed until 2011 and the Secretary of Health and Human Services would be required to work with the CPT Editorial Panel to modify or establish new consultation service codes that will minimize coding errors. It has to be enacted still.

This week the Medicare Payment Advisory Commission (MedPAC) laid out its recommendations for the 2011 Medicare physician update (we haven’t survived 2010 yet!). The draft recommendation was that Congress should update payments for physician services in 2011 by 1 percent, and that while this would increase overall Medicare spending as well as increasing beneficiary cost sharing, it would help maintain supply and access to physician services. However, a 1% increase isn’t going to cause a flood of new med school applicants!

The Medicare Payment Advisory Commission (MedPAC) also heard an update on enrollment and payment data for Medicare Advantage (MA) plans. MedPAC staff said enrollment grew to almost 11 million over the previous year and now accounts for 1 in 4 Medicare beneficiaries. Plans offerings continue to be widespread, but choices of private fee-for-service (PFFS) plans shrank as impending networking requirements began to lead to market withdrawals from some plan sponsors. With respect to payments, MedPAC’s preliminary estimate is that 2010 payments will average 113% of fee-for-service – though that figure could be adjusted lower if Congress prevents a cut in physician payments and thereby increases Medicare FFS spending. The discussion comes as Congress is considering sizable cuts to MA as part of health reform

Sen. Grassley (R-Iowa) has asked 33 professional and disease-oriented organizations (Derm, Ophthalmology, Urology, Ortho, Neuros, AHA, etc) for information about the financial backing they get from the pharmaceutical, medical device and insurance industries as part of his effort to ensure transparency in medical associations’ relationships with industry.

The ACC has been asked to participate in an American Association of Medical Society Executives (AAMSE) conference call with leaders from those 33 groups to share our own experience responding to Sen. Grassley’s requests. The ACC has been a leader in transparency in our relationships with industry, publicly posting all our funding sources on our Web site and spearheading the development of standard guidelines for medical societies’ relationships with industry.

Congress is entirely focused on transparency and full disclosure. Along with the Dept. of Justice, the Office of the Inspector General (OIG), they are not asking that there be no industry funding of CME, expos, journal ads, grants, etc. We in the profession are doing that to ourselves in some instances, apparently feeling we cannot manage such relationships. We can. And these inquiries need not be feared. More clear transparency is needed.

*** Sen. Grassley. Photo from Wikimedia Commons. ***

Over 80 ACC members went to Capitol Hill last week to talk to their lawmakers about the devastating effects that the CMS cuts will have on their patients’ access to care. Here’s what a few had to say. 

From Jacqueline Hollywood, MD, FACC:

Wow! What a marathon, I have blisters from all the running we did on the Hill this week.  It truly is a marathon and not a sprint, because we still have a long way to go.  It was amazing to see cardiologists from all over the country come together to protect patients and the future of the practice of cardiology.

We met with members from both the House and the Senate. Some were aware of the threats to cardiovascular care and some were not. Most were not aware of the devastating impacts of these cuts.  Decreased access, significantly increased costs and layoffs are not a prescription for health care reform. One representative we met with commented, “This was the first he was hearing of these cuts and how come doctors and patients were not calling him?”  I know many of us feel that no one is listening and that we have no control.  I can tell you this week on the Hill they were listening but we need our voice to be louder.

Call, e-mail your senators and ask your congressmen to co-sponsor the bill from Rep. Gonzalez to halt the cuts.  Make patients aware of the very real threat to their cardiac care and have them contact Congress as well. We need to make our voices heard, the time is NOW.

From former ACC President Douglas Weaver, MD, MACC: 

Staffers were not just polite, they were genuinely interested in our message. Members of Congress are so engaged with health reform, that they weren't aware of the Final Rule. I found a willingness from both sides of the aisle to help. Now it's whether or not we can get something done.

From Florida Chapter President Alberto Montalvo, MD, FACC:

Today the Florida Chapter of the American College of Cardiology had between thirty-five and forty cardiologists visiting our Congressional delegation to specifically discuss the 2010 CMS Physician Fee Schedule and the Gonzalez legislation that would temporarily fix the unsustainable cuts.  All members reports back that we were well received and that our lawmakers understood the problems that the CMS rule would create for patients and practices.   Our delegation was unanimously supportive of our effort and stated their support of this legislation. Overall our elected officials were impressed with the gravity of the problem especially when were confronted with so many cardiologists who had left their practice to come to Washington on this issue.  Of particular interest: 

• Congressman Vern Buchanan raised concern that so many Sarasota-Bradenton cardiologists were in Congress. He hoped there were still some behind to take care of emergencies.
• Congresswoman Debbie Wasserman Shultz expressed her support and discussed at length many health care concerns. The interaction with the large delegation was lively and resulted in better understanding of the issues.
• Congressman Mario Diaz-Balart, John Mica and Congresswoman Ileana Ros-Lehtinen were also very supportive.

The Florida delegation was energized by the visits because they were very productive. We left with measured optimism that we mad made an impact and hopeful in the success of pending legislation.

From Board of Trustee member Kim Allan Williams, MD, FACC: 

The visits to Capitol Hill were enlightening, yet difficult.  I am frequently surprised at the varied levels interest and understanding of Medicare payment structure in the congressional health staff, particularly as it relates to the differences between the HOPPS and the Medicare Fee for Service reimbursement, and the differences between the Medicare Final Rule issue and the overall health system reform legislation currently being debated on the Hill.  However, we regarded these issues as teachable moments and listened carefully to the few staff members who were already up to speed. 

Each office was sensitive to the message of preserving cardiology access.  I described the possible closing of cardiology practices and shift to hospitals to each of them as "an inconvenience for the wealthy, a problem for the majority, and a disaster for the underserved."

As you can see from their comments, it was both a positive experience and one that highlights the need for additional efforts to educate members of Congress about what will happen to your practice Jan. 1. Take action now with ACC’s online grassroots system or call the toll-free grassroots hotline (800-210-7193) to be connected to your lawmakers by phone.

Image credit: http://www.flickr.com/photos/wallyg/ / CC BY-NC-ND 2.0

A question posed recently by ACC SVP of Advocacy Jim Fasules, MD, FACC, that I'm passing along to our cardiologist readers: For those of you in private practice, did your practice integrate with a hospital in 2009, or do you have plans in the next couple of years?

The ACC has signed on to support a Consumers Union consensus statement that urges the Senate to retain the Patient-Centered Outcomes/Comparative Effectiveness Research (CER) provisions in health care reform. The good news is how broad and basic it is — amazingly, they got good support from health plans on this.

Both chambers of Congress have different view on CER, including whether to follow the "Federal Reserve" model, in which the research is relatively independent of government, or the government approach, housing the research center within AHRQ. Who will sit on the review board is a bit of an issue, too, but both chambers are looking at a good cross-section of the whole health care community, including government, industry, patients, physicians, researchers and similar stakeholders. 

One of the big fears out there — which it seems is being addressed very carefully in all the legislation I've seen (but that doesn't stop naysayers from hyperventilating about it) — is that the government will use CER as a basis for cost-containment and restrictive coverage decisions. Critics are using the recent mammography guidance as an example of rationing through CER. To be clear, the ACC and Consumers Union wholeheartedly support CER that separates cost efficiency from clinical effectiveness.

Our ACC Medical Directors Institute this year focused completely on CER, and we'll continue to delve more deeply into some topics, such as shared decision-making with patients/providers and helping IOM and the Federal Coordinating Council for CER in action plans related to their research priorities.  It will be interesting to watch this unfold!