How new legislation voted on today could give Washington power to practice medicine

Article Highlights

  • New bill gives CMS authority not only over radiology standards, but over full range of outpatient medical care.

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  • Federal agencies march to their own agendas.

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  • Radiology has been hurt badly by years of across-the-board payment cuts that invariably impact patient care.

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I write today on the editorial page of the Wall Street Journal of a new legislative provision, tucked into a bill that tries to reform the troubled way Medicare pays physicians, that could inadvertently give Washington vast authority to dictate clinical practice standards.

As I note, each year since 2002, Congress has passed temporary “doc-fix” legislation to cover billions of dollars of shortfalls in Medicare payments. This system is deeply flawed. The new provisions are part of a bill that tries to transform this broken doctor payment system.

The provision in question is supposed to apply to advanced radiology imaging tools like CT scans and MRIs.

But the language creating this new scheme is so broad and imprecise, it gives the Centers for Medicare and Medicaid Service vast authority to not only influence radiology standards, but arbitrate over the full range of outpatient medical care.

Radiologists and Cardiologists fought for the provision, but this is a case of be careful what you ask for.

There’s nothing inherently wrong with tying Medicare coverage rules to clinical standards developed by outside experts, including medical professional colleges.

Such a construct already exists, and works very well, when it comes to the prescribing of cancer drugs (where Medicare coverage decisions are bound by compendia standards maintained by outside clinical experts like the National Comprehensive Cancer Network).

The problem is, you can’t be sure this bill will do anything close to what it’s authors intend.

It says that CMS can use the guidelines developed by medical professional societies, but it then goes on to say CMS can also use criteria promulgated by “other entities.” Since this term isn’t defined, an “entity” can include just about anyone.

It says this provision only applies right now to advanced imaging. But it goes on to give CMS the authority (largely unilaterally) to expand these same constructs to the full range of Medicare’s “Part B” (outpatient) services.

It requires “stakeholder input” and that the guidelines be science based and derived from “consensus.” But these are broad concepts, and the language leaves CMS a lot of leeway in selecting and influencing these standards.

That language reads: “In specifying applicable appropriate use criteria… the Secretary shall take into account whether the criteria… have stakeholder consensus; have been determined to be scientifically valid and are evidence based; and are in the public domain.”

Asking an agency to take certain considerations “into account” is hardly binding it to a carefully considered outcome.

The legislation also fails to prevent CMS from using these same “criteria’ in setting up other payment and coverage policies in ways that might constrain clinical practice. Once this construct gets created, CMS will be tempted to tie its other decisions to these same measures where it suits.

For legislation that binds agencies in somewhat analogous circumstances, physician groups ought to look to the bills that created the compendia process at CMS under the Part B outpatient medicine program, or the deeming process under the agency’s Part D drug program.

With respect to the current proposal, in Washington parlance, there is too much use of “may” in this text, and not enough “shall.”

The radiologists see this provision as a better alternative to the annual blanket price cuts they’ve endured, or more direct controls over their medical practice.

Radiology has been hurt badly by years of across-the-board payment cuts that invariably impact patient care.

But this legislative text has only been available for two days. The fact is, most people haven’t read it.

When they do, these risks and shortcomings will become apparent.

Radiologists should also keep in mind, nothing in this new scheme prevents additional, old-style rate cuts. It’s only a political leap-of-faith that by adopting this framework, providers can forestall additional reductions

The bill does have language to allow the radiology physician groups to try and exert influence over the criteria. But these provisions also remain weak. They give enormous discretion to CMS.

Legislative text matters. The underlying premise here could be sound – to tie CMS coverage and payment rules to expert treatment guidelines, so the agency can’t make indiscriminate cuts.

If that’s the goal, it needs to be defined clearly in legislation.

If architects can’t reach a legislative compromise that enables certainty around this purpose, then the effort should be put on hold.

In the end, here’s how is this meant to work.

As I note in the Wall Street Journal, under the provision (as its presently written) the “appropriate use criteria” selected by CMS will be loaded onto a website that’s used to evaluate how and when doctors order the full range of outpatient tests and treatments.

Doctors would consult the website before they order a test, and get a proof that their use of the medical service conforms to the “appropriate use criteria.” Doctors would submit the printout (or maybe a number) with their insurance claim to Medicare.

This database would eventually be used to identify “outlier ordering professionals.” These are doctors who show a “low adherence” to the “appropriate use criteria.”
Starting in 2020, these “outlying” doctors would then be required to seek the advance permission of the government from another website, through a “prior authorization” process before they can order services for their patients.

How “outliers” are determined isn’t defined. The legislation only says that “the Secretary shall consult with physicians, practitioners and other stakeholders in developing methods to identify outlier ordering professionals”

The presumption is that this process will cut down on “inappropriate” use of medical imaging.

Everyone agrees that the system by which Medicare pays doctors is deeply flawed. There’s a noble goal in trying to use expert guidelines to inform payment rules. But doctors, patients and other stakeholders should be wise now to how provisions like this one eventually evolve.

Federal agencies take vast discretion to interpret and reinterpret the rules. Unless they are tightly bound by legislative text, don’t expect them to follow the spirit of the law, or the best of intentions. Agencies march to their own agendas.

Follow Dr. Gottlieb on Twitter @ScottGottliebMD. For more from AEI's health team, follow @AEIhealth.

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