Brian Klepper

Published 2/1/12 in Medical Home News

L-R: Bob Clark, Becca Talley, Paul Fischer, Edwin Scott, Rob Suykerbuyk, Les Pollard - Click to Enlarge

Six Augusta, GA primary care physicians filed suit last August against the Centers for Medicare and Medicaid Services (CMS). They charged that for two decades the agency has relied primarily on the American Medical Association’s (AMA’s) Relative Value Scale Update Committee (RUC) to value medical services. But CMS has not required the RUC to adhere to the stringent management and reporting rules associated with the Federal Advisory Committee Act (FACA) that ensure that regulation is in the public rather than the special interest.

The RUC, a voluntary committee dominated by specialists — only two of 29 are primary care physicians –scores medical procedures in terms of Relative Value Units (RVUs). After a multiplier is applied, higher RVUs receive more reimbursement. CMS has historically accepted more than 90 percent of the RUC’s recommendations without further due diligence.

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Brian Klepper

In early August, six primary care physicians from the Center for Primary Care in Augusta, GA, filed suit against the US Department of Health and Human Services (HHS) and its subsidiary agency, the US Centers for Medicare and Medicaid Services (CMS).

The filing was a critical step in a campaign that David Kibbe MD and I began in January 2011 against the excesses that have arisen from CMS’ inappropriate relationship with the American Medical Association’s (AMA) Relative Value Scale Update Committee (RUC).  But the effort was really given life by Paul Fischer, MD, the Augusta physician who brought a focused, practicing primary care perspective to the issue, and Kathleen (Kitty) Behan, the DC-based constitutional attorney who has orchestrated the legal process.

The case’s foundational argument is that the RUC near sole-source advisory relationship with CMS has rendered it a “de facto” Federal Advisory Committee (FAC). Therefore the RUC should be subject to the Federal Advisory Committee Act (FACA)rules that govern the behaviors of these entities, seeking to ensure that regulation is shaped in the public rather than the private interest. Even so, over time CMS has accepted more than 90 percent of the RUC’s valuation recommendations without further due diligence. The agencies’ clear failure to require the RUC’s financially conflicted and secretive behaviors to be adhere to these requirements has resulted in Medicare payment distortions and excesses that have directly harmed primary care, as well as patients and purchasers.

We believe that this case has profound ramifications that go to the heart of the ways American health care is practiced and the cost crisis that has resulted.

For those who wish to monitor the progress of the suit, here are the first three primary legal documents. If you’re willing to wade into the world of legal argument, you’ll find the discussion both fascinating and compelling.

First is the initial complaint, which lays out the legal argument. Next is the Defendants’ Motion to Dismiss. Third is the Plaintiffs’ Opposition to the Motion to Dismiss.

We will continue to make materials available as the process unfolds.

Thanks for your ongoing interest in this.

Kevin Bernstein

Paul Fischer

One of the main considerations in physician pay under CMS’ relative value system is the training required to complete a task. This is generally thought to be well understood but is, in fact. a quagmire of controversy.

Take for example the specialty of family medicine compared with dermatology, anesthesiology, or ophthalmology. Family physicians make between 1/2 and 1/3 of what these other specialties make, so one would think that there is a huge training difference. The truth is that each of the four require 16 years before medical school, 4 years of medical school, and 3 years of residency.  The 3 highly paid fields require 1 additional year in a transitional internship.  So the family physician education represents 23/24 or 96% of the length of education required for the others.  Since when is a 4% investment worth a 200% to 300% return?

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Brian Klepper and David C. Kibbe

First posted 8/09/11 on The Health Affairs Blog

Copyright ©2011 Health Affairs by Project HOPE – The People-to-People Health Foundation, Inc.

This week in a Maryland federal court, six physicians based at the Center for Primary Care in Augusta, GA filed suit against HHS Secretary Kathleen Sebelius and CMS Administrator Donald Berwick. The complaint, spearheaded by Paul Fischer MD with DC-based lead counsel Kathleen Behan, alleges that the doctors have been harmed by the Medicare payment structure developed through the agencies’ reliance on the American Medical Association’s Relative Value Scale Update Committee (RUC).

The suit also claims that the agencies have functionally treated the RUC as a federal advisory committee. But they have not required the RUC to adhere to the Federal Advisory Committee Act’s (FACA) stringent management and reporting rules – e.g., balanced representation, transparent proceedings, and scientifically valid analytical methodologies – that keep the proceedings in the public interest. The plaintiffs request injunctive relief, which would freeze the relationship between CMS and the RUC until the advisory group complies with FACA’s requirements. Of course, compliance would drastically change the way the RUC conducts its affairs, something it is almost certainly loathe to do.

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Brian Klepper and David C. Kibbe

First posted 8/1/11 on the Health Affairs Blog

Copyright ©2011 Health Affairs by Project HOPE – The People-to-People Health Foundation, Inc.

One of American politics’ most disingenuous conceits is that health care must cost what we currently pay. Another is that the only way to make it cost less is to deny care. It has been in industry executives’ financial interests to perpetuate these myths, but most will acknowledge privately that the way we value and pay for medical services is a deep root of America’s health care cost explosion.

When the Resource-Based Relative Value Scale (RBRVS) became the framework for Medicare payment nearly twenty years ago, it equated a medical service’s “value” with four categories of physician work inputs: time, mental effort and judgment, technical skill and physical effort, and psychological stress. The assessment process, handled from the outset by the American Medical Association’s (AMA) secretive, specialist-dominated Relative Value Scale Update Committee (RUC), delineates and quantifies a service’s inputs in terms of its Relative Value Units (RVUs) which, with a monetary multiplier, define its worth.

In 1989, RBRVS’ lead architect, William Hsaio, confidently suggested that the process would be rational and reliable:

We found that physicians can rate the relative amount of work of the services within their specialty directly, taking into account all the dimensions of work. Moreover, these ratings are highly reproducible, consistent, and therefore probably valid.

But Dr. Hsaio did not anticipate that special interests would capture the process and manipulate it to financial advantage. Twenty years after RBRVS was adopted, “mental effort and judgment” has been hijacked to favor specialist physicians and hospitals, primary care has been stifled, and the relative value system has become a study in caprice and distortion.

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Lori Heim

Stephanie Bourchard, Healthcare Finance News

6/14/11

LEAWOOD, KS – The American Academy of Family Physicians has long argued for more equity in payments for primary care services, but last week it became more outspoken. The national organization representing more than 100,000 family doctors sent a letter to the American Medical Association/Specialty Society Relative Value Scale Update Committee, most commonly known as RUC, demanding the committee make specific changes to its structure, processes and procedures.

Specifically, the AAFP is asking for:

• more seats for family medicine, general internal medicine and general pediatric medicine
• the addition of three new seats for external representatives such as consumers, employers and health plans
• a permanent seat for geriatric medicine
• the elimination of existing rotating subspecialty seats as the current representatives ‘term out’
• greater voting transparency on all RUC votes

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Brian Klepper and David C. Kibbe

First published 6/2/11 on the Health Affairs Blog

Copyright ©2011 Health Affairs by Project HOPE – The People-to-People Health Foundation, Inc.

In a remarkable recent interview, Donald Berwick MD, Administrator of the Centers for Medicare and Medicaid Services (CMS), eloquently described his vision of value-based health care.

Paying for value is an incentive…The underlying idea of improvement is that American health care, historically built in fragments, often cannot achieve for patients what it really wants to achieve…Health delivery system reform refers to really reconfiguring care into much more seamless coordinated-care operations so that people, especially those with chronic illnesses, experience continuity of care over time and space.

So when patients come home from the hospital, there is a smooth handoff, and all the necessary information follows them. When they are seeing a specialist, that specialist is coordinating care with their primary care doctor.

This description probably resonates with most health care professionals as a better approach than the current paradigm’s fragmentation and lack of continuity of care. But as with many things in health care, it won’t be easy getting to a value-based health care approach in Medicare and Medicaid. Despite wide acknowledgement that fee-for-service perpetuates our health system’s most undesirable characteristics, the mainstream of American health care seems stuck. One wonders whether CMS can rise above the special interest lobbying, get beyond the interminable pilots and decisively act on payment reform with the conviction required to help save health care from itself.

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Brian Klepper, Paul Fischer and Kathleen Behan

First published 5/24/11 on the Health Affairs Blog.

Copyright ©2010 Health Affairs by Project HOPE – The People-to-People Health Foundation, Inc.

Last October, the Wall Street Journal ran a damning expose about the Relative Value Scale Update Committee (RUC), a secretive, specialist-dominated panel within the American Medical Association (AMA) that, for the past two decades, has been the Centers for Medicare and Medicaid Services’ (CMS’) primary advisor on valuation of medical services. Then, in December, Princeton economist Uwe Reinhardt followed up with a description of the RUC’s mechanics on the New York Times’ Economix blog. We saw this re-raising of the issue as an opportunity to undertake an action-oriented campaign against the RUC that builds on many professionals’ work – see here and here – over many years.

We have focused on rallying the primary care and business communities to pressure CMS for change, and are contemplating a legal challenge. But the obvious question is why these steps are necessary. Why doesn’t CMS address the problem directly? Why does it continue to nurture the relationship?

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Paul Fischer