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.