The American College of Cardiology (ACC) sues Medicare over physician rate cuts

Originally published in MedPage Today

by Kristina Fiore, MedPage Today Staff Writer

The American College of Cardiology (ACC) has filed suit against U.S. Department of Health and Human Services Secretary Kathleen Sebelius charging that the 2010 Medicare Physician Fee Schedule was adopted unlawfully.

The American College of Cardiology (ACC) sues Medicare over physician rate cutsThe complaint seeks an injunction that will prevent the cuts — which the association claims used a flawed survey for determining reimbursement rate cuts — and will force HHS to conduct a new, more accurate survey.

“The process by which Medicare determined the reimbursement rates was deeply flawed,” Jack Lewin, MD, CEO of the ACC, said in a prepared statement. “As a result, the 2010 rule will levy cuts to cardiologist services by up to 40% and will deny critical cardiovascular care for millions of heart patients.”

Using data from the Physician Practice Information Survey (PPIS), CMS mandated 40% cuts in reimbursement for echocardiograms and 36% cuts in nuclear imaging.

Alfred Bove, MD, of Temple University, and president of the ACC, told MedPage Today that the organization pushed hard to get the 40% reduction in reimbursement for echocardiograms spread out over four years, for a 10% reduction per year.

But he said CMS wouldn’t budge on a 36% reduction for nuclear stress testing.

The cuts “would stop most physicians from doing the imaging in-office,” he said. “It would drive us well below cost.”

Bove added that the cuts would also result in staff layoffs at smaller practices and would further encourage cardiologists to close private practices and seek hospital employment — a trend Bove said has already been taking shape.

In a press release, the ACC said the Physician Practice Information Survey (PPIS) on which the 2010 payment rates were based gathered data from only 55 cardiologists — too small a number to be representative of cardiology practices across the nation.

The organization also charged that a consultant group hired by HHS to review comments on the proposed rule said the data were “counter to all other recognized cost measures.”

Supplemental survey data provided by specialty physician groups was “more representative of the true cardiology practice than the PPIS data,” the ACC charged.

Bove said the PPIS survey found that cardiologists’ costs have declined over the last five years, while other surveys show a 4% to 5% increase.

He said the majority of the 55 practices included in the survey may have been hospital-based practices where overhead was paid by the hospital.

A spokesperson for CMS told MedPage Today that the agency “can’t comment on the suit, but strongly believes that the 2010 physician payment rule ensures that Medicare beneficiaries continue to have access to the services provided by all physicians and that those physicians are paid appropriately.”

The spokesperson added that the rule “was adopted after opportunity was provided for public comment, including from affected medical specialties.”

Whether the ACC is granted its request for an injunction immediately or not, the new rates won’t go into effect as they’re supposed to on Jan. 1 because payment cuts have been put on hold in anticipation of a fix once the House and the Senate meld their versions of healthcare reform legislation.

The complaint was filed in the U.S. District Court for the Southern District of Florida. Co-plaintiffs include the Florida Chapter of the ACC, the Association of Black Cardiologists, and the Cardiology Advocacy Alliance.

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  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    Oh, I’m not even a Cardiologist and I’m LOVING this.

    DHHS deserves to get it’s tail sued off for a whole lot of things they’ve done to doctors. I’m thinking hard about getting in that line.

  • Dr . James Blake

    Good article but in fact the 2010 draconian cuts have taken place and are the law as of 1/1/2010. The cuts that are on hold through February represent an additional, yes that is right, additional 20% due to the ever present formula tying pay to the GDP. Were this 20% enacted cardiologists would face up to a 60% reduction in much of their reimbursement. Could you run an office with those kind of numbers?

  • concerned citizen

    Can we sue doctors for overtesting and doing unnecessary things and not keeping up with medical studies? My friend had a ulcer on his tongue, gets it all the time, resolves in one week, says it happens because he overcleans his tongue when brushing, They ended up doing biopsies and all kinds of stuff and he ended up paying $ 3000 out of pocket and by the time the results came back as NORMAL, he was healed. Why can not the leaders in medicine control irrelevent and blatant wastes done in helath care, only doctors have the power and they don’t use it properly and complain when outside agency intervenes. We lead the world and spend 2.3 Trillion a year zand but stand 37 th in health care results, how is this possible. Primary care sucks, only 2% of students pursue it and everyone else flocks to speciality, why I wonder.

  • jsmith

    40%-60%? Way way too much. The cardiologists are right to be outraged.

  • curious

    It’s hard to form an intelligent opinion without knowing the take-home pay of cardiologists with and without these cuts. Does anybody have some average figures? If it’s a cut from $500K to $300K per year, it’s hard to have much sympathy for cries of poverty.

  • Rod

    Well Primary care, Shame on you that you just sucked it up and took hit year after year at the cost of Proceduralists and many specialists. Most private cardiologists take home 400k and above and even with 20% cuts ( which is the highest expected under current changes) they make double that of primary care at minimum. And now don’t get started on years of training, current system is skewed heavily in favor of specialists, anyway you look at it, time for some correction.

  • stargirl65

    This will put cardiologists closer to primary care earnings, but still way above. I have little sympathy being at the bottom of the heap already. They have been getting lots of money for procedures for years and not paying us for all our time. It is about time it evened out a bit.

    Curious-
    Your numbers are close to that for many cardiologists.

  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    “Curious”, I’m just curious.

    I’m just wondering how much YOU think cardiologists – who train FOR YEARS to do what they do – who go into massive debt – whose hard work enables many a hospital to stay financially afloat – who save lives every single day – should make?

  • http://www.drjshousecalls.blogspot.com Dr. Mary Johnson

    P.S. Primary care’s fiscal stupidity over the years (in terms of allowing ourselves and our services to be so criminally devalued) is NOT Cardiology’s fault.

    Going along to get along, we gave it all to the “suits” (who are paid very nicely skimming off the top). We let the government – and hospitals – and insurance companies – do it to us.

  • AnnR

    Fifty-five sampling units is not very many.

    I was involved in a protest over a reimbursement cut for the lymphoma drug Zevalin a few years ago. They based their recommendation on incomplete and inaccurate bills and came up with a payment that was way too low.

    The way it was explained to me the reimbursement was so low that hospitals would have quit offering the treatment and it would have also dissapeared as an option for non-Medicare patients.

    Zevalin is a targeted treatment that produces near-miracle results in many lymphoma patients. It would have been a shame to have let sloppy work in determining the reimbursements eliminate it from the treatment options of lymphoma patients.

    While their may be a case for reducing Cardiology payments I think it shouldn’t be based on sloppy non-representative work.

  • http://curbside.posterous.com Nuclear Fire

    The primary care jealousy of specialist pay is pathetic.

  • anonymous

    do you really think the decrease in one year is reasonable? with a threatened additional 20% cut on top looming?

  • DKBerry

    Merritt Hawkins 2009 physician reports the average cardiology base income is $419K which applies to hospital based specialists not those in private practice.

    http://www.merritthawkins.com/pdf/mha2009incentivesurvey.pdf

    Those cardiologists in private must pay staff, property, equipment, and supply costs from their income.

    The 40% echo reduction coupled with the 36% nuclear cut forces practices to close those services and refer patients to hospital-based imaging centers.

    Hospital wait time for an appointment is often measured in weeks or longer as priority is given their in patients … which is why cardiologists offered in-office imaging for their patients in the first place.

    Now courtesy of HHS action Medicare patients will need to make separate appointments for imaging and physician appointments. For some patients here in Arkansas that may mean separate 2 hour drives to Little Rock where cardiology services are centered.

  • SAD Md

    What is the average base of Primary care or Family doc? 119K? Primary care is outraged that AMA created a ridiculous/behind the screen system that killed cognitive medicine in the past decade. Certain specialities got higher take home incomes at the cost of these cognitive physicians, so let there be no doubt on whose backs this was done. The money pot is fixed. If it weren’t for this disparity that is so starkly skewed, physicians would have been united today. 2-3 years of fellowship does not entitle 200-300% more for 30-40 yr.

  • Anon

    Fixed pie theory economics? Your Econ knowledge is sad, md. Try google or picking up a book.

  • hawk

    hmm, but a cut from 500k to 300k in one year? thats not fair, especially considering the workload increases, and on top of that cardio is a ‘risky’ specialty, with lots of lawsuits and risks of losing everything.

    Remember, if you dont pay those at the top of their game what they are worth, they will just stop seeing patients, work less hours, and that means less care.

  • http://www.familydocs.org/blogs/fp-forum Carla Kakutani MD

    If this is so unfair, why did multiple specialty societies ( orthopedics, ACS, opthalmology, ER etc) protest ACC’s action? The new methodology CMS used to adjust rates was vetted by all of the stakeholders ahead of time as a way to fairly evaluate and adjust payments to reflect current costs. Everybody had equal opportunity to get their data to CMS. Cardiology made some nice hay over the past few years on procedures that were overvalued; now things have been rebalanced.
    http://www.aao.org/newsroom/release/20091116.cfm

  • DKBerry

    SAD MD: Am not sure of your data source but per Merritt-Hawkins 2009 study cited above Family Medicine average recruitment salary is $173k, low end of range is $119k. You point to one of the more problematic elements of the health care reimbursement system … the AMA’s Relative Value Update Committee (RUC). A problem in orientation and weighting is caused by only 5 of the 23 voting members of the committee are in the primary care spectrum. CMS has locked in on this model and AMA supports it strongly as well despite primary care practitioners objections.

    Dr. Kakutani… As I imagine you are well aware Medicare reimbursement methodology has been problematic nearly ever since its adoption in 1989 and amended to include the very flawed Sustainable Growth Rate (SGR).

    I am curious … but why did you select a press release from the American Academy of Ophthamology as a source for your post … when you are a family medicine practitioner and your own American Academy of Family Physicians finds fault with the reimbursement process and supports passage of HR 3961 MEDICARE PHYSICIAN PAYMENT REFORM ACT which amongst actions calls for “repeal of the SGR formula” which is at the heart of the ACC court filing?

    http://www.aafp.org/online/etc/medialib/aafp_org/documents/policy/fed/background/one-pager-medicare.Par.0001.File.tmp/OnePager-Medicare-Nov09.pdf

    Suggest you and others refer to ACC’s summary of its action found at its Campaign for Patient Access website:

    http://www.campaignforpatientaccess.org/Legal

    Site includes not only commentary by Dr. Lewin, the formal complaint, the motions, and expert third party analysis of their position.

    Dr. Pho… speaking of Dr. Lewin. Please explain for your audience why Dr. Lewin’s post was removed from this topic’s responses.

    Let’s keep the bar high on the quality and professionalism of the posts here. You can be passionate about a position without being derogatory toward others. In a professional forum it is expected that you backup your statements with fact and references which support your position. If you choose to make statements simply because of your political view find another blog to post on. Facts are the premise on which we judge quality here.

  • http://www.familydocs.org/blogs/fp-forum Carla Kakutani MD

    @ DKBerry-
    I merely wanted to point out that there is more than one side to this story and this is not a primary care vs specialty care issue, so I used a non primary care society source.

  • DKBerry

    @Dr. Kakutani…

    Found the final line in the release from the American Academy of Ophthamology site was a release from a ‘coalition’ of 19 specialty associations. So your point is well taken… especially since AAFP is one of them.

    However… AAFP is a strong supporter of HR3961… which through repeal … opposes what as a coalition member AAFP supported.

    Despite the coalition’s perspective as to how their specialites were treated by CMS… that is not relevant to how others were affected including cardiology practices which may as a natural result of the age of their patient base may be more affected by Medicare reimbursements than other specialties.

    Please look at ACC’s perspective including its outside agent opinion and I appreciate your response.

  • HRB

    Dear Drs.
    I am just about to start my private pracitce after completing my fellowships, in Cardiology and EP,was very worried about the current cuts. Reading the comments on this blog is even more disturbing than reading about the cuts CMS has proposed. From looking at the overall trend the only thing I see is that every physician across ALL SPECIALTIES and PRIMARY CARE has only seen decrease in reimbursements over the last two decades.Now what we are seeing is the insurance companies and goverment pitting one physician against another and taking full advantage of the situation. Yes cardiology is on the chopping block this year, but make no mistake this will come to every other physician in due time. All the mean while the reimbursments for the hospitals and ancillary staff are increasing and profits for insurance/drug companies increasing at unprecedented rates. What we(all physicians) should be more worried about is why is a PA of NP in certain specialities(anasthesia) making 1.5x the primary care physician and pediatrician. Why the hospital administration staff probably makes 4-5x the average physician. From my prespective all other entities in Insurance companies,Hospitals,Lawyers,even ancilarry staff continue to see increases in their share of the revenue all the meanwhile physicians continue to fight amongst each other for scraps—all the mean while only seeing a downward trend in their income with increasing liabilities for providing care and increased cost for providing the service to their patients. As private practice physicians all of us should we worried the most as these changes ensure that we are going to loose control of practicing medicine according to what we think is best for our patients and be forced to impement changes as employees of hospitals or insurance companies in the future…….

  • DKBerry

    From ACC Advocate …

    http://www.acc.org/advocacy/advoc_issues/ACCAdvocate01122010.htm

    January 12, 2010

    Case closed. Just as the ACC’s attorneys, witnesses and staff were about to board flights to Florida for tomorrow’s scheduled hearing on the preliminary injunction and expedited discovery motions related to the Medicare 2010 Payment Rule, we learned that the U.S. District Court Southern District of Florida had denied our motions. Basically, the judge refused to hear our case on jurisdictional grounds, finding that statutory language governing the Medicare program precludes judicial review of the relative value units and the methods for determining the RVUs in the Medicare fee schedule.

    While we are obviously very frustrated by the court’s decision, there is no denying that this was going to be an uphill battle given the traditional hesitancy of any court to take on the federal government. We are certainly not sorry that we undertook this important step and we are grateful to the Florida ACC Chapter, the American Society of Nuclear Cardiology, the Association of Black Cardiologists, the Cardiology Advocacy Alliance and others who supported this effort.

    Suffice it to say, we are not done. We will not allow the bogus data and process to go unchallenged! While we didn’t win in court we did discover just how little CMS knew about the practice expense survey data used to determine the most drastic portion of the 2010 Medicare cuts. (Your ACC’s responses to the government’s request to dismiss the lawsuit outline these arguments.) This information will be extremely useful as we move forward with CMS, Congress and, to the extent possible, the public to develop and implement a fair and just payment methodology that protects not only the private practice of cardiology, but patient access to timely and cost-effective care.

    A blow to physicians everywhere,

    …today’s court decision only serves to emphasize the precedent that CMS can set physician payment in whatever manner it chooses regardless of impact and/or level of analysis.

    …Other medical specialty societies who have been actively opposing our efforts to stop these cuts should be wary. While they may benefit from this particular rule, what happens the next time? We should all be working together to fight for fair and reasonable reimbursement, not continuing to play this zero sum game every year. How we actually get paid needs to be a very important and seriously undertaken consideration for the profession over this coming year. Your ACC is committed to getting this conversation started. Stay tuned for more information in the coming weeks on how you can get involved in this effort as well.

    Full Disclosure: I am not a practitioner. My wife is a FNP with 30 years clinical experience in ICU, CCU, emergency medicine, and for the past four years in a senior cardiology electrophysiologist partner’s group practice.

  • Jack

    What a pack of greedy, whining babies. If there’s any group in this country, outside corporate CEO’s, who can absorb a 20-40% reduction in their inflated incomes it’s doctors. They might have to get by on only 2 cadillacs instead of 3, and a 4,000 square foot house instead of a 6,000 square foot one — poor babies. I think they’ll live.

    There are a few doctors left in this country who don’t fit my , shall we say, jaundiced, description of them. They have my apology — and they don’t need it because they’re above this particular ugly little fray. The overwhelming majority of their colleagues on the other hand, resemble J.P. Morgan much more than they resemble your kindly Norman Lincoln Rockwell long-dead stereotype. Anybody who feels sorry for them needs their head examined.

    Doctors used to be respectably upper-middle class. Third party reimbursement has made them stinking rich instead. They make a ridiculous amount of money for a job that’s basically a glorified technician. They aren’t any more educated than most college professors. They don’t work any harder than a Wal Mart cashier who works full-time and overtime to make ends meet, and they work lot less hard than your average roofer. They are entitled to earn more than those two do because they are more educated, and their stresses are more difficult. They are not entitled to make what they currently make. American society has pathetic tendency to worship the ground doctors walk on. That doesn’t change the fact that the amount of money doctors make now has no relationship to reality. They should most certainly make a comfortable income. And there’s simply no justification for the stratospheric compensation levels they now enjoy — especially since a gigantic proportion of their incomes is taxpayer money. It’s about time they got normal again.

    And this wild threat to stop treating Medicare patients by cardiologists — what a joke. Old people are 80-90% of a cardiologist’s practice. They’ll no more stop seeing Medicare patients than they’ll fly to the moon. I hope somebody calls their bluff. Then we’ll see just how authentic all this sanctimonious posturing really is.

  • DKBerry

    @Jack… Really?

    I didn’t read anywhere in the ACC suit or its update where a “wild threat to stop treating Medicare patients by cardiologists” was made. Many practice panels are closed to further Medicare patients in primary care and cardiology and other specialist practices in many parts of the country simply because they can’t take on any more patients. I was not aware as you say that cardiologists were going to oust their Medicare patients. I think that’s called “patient abandonment” if continuity of care and treatment cannot be confirmed.

    What you may be thinking about through your post was the action by Mayo Clinic Arizona’s 5-physician Glendale primary care clinic that as of 1 Jan 2010 stopped accepting Medicare for services provided to over 3000 Medicare patients. I know you have heard of Mayo Clinic. They are they guys who President Obama says are really on the cutting edge of treatment quality.

    Reportedly about 300 of the Glendale’s patients wil pay nearly $2000 to keep their primary care doctor. The remaining 2700 plus have had to go find a practice that has capacity to accept them or those seniors have to go without health care services.

    http://www.bloomberg.com/apps/news?pid=20601202&sid=aHoYSI84VdL0

    The reason Mayo Clinic is testing this action at that a year ago Mayo lost $840mil on services provided to Medicare patients. May projects that if it removes Medicare patients from the practices at its primary care clinics (this is a 2 year test at the Glendale clinic) that they will not have referrals of Medicare patients to the three Mayo medical centers in Minnesota, Arizona, and Florida.

    From the Bloomberg article: “Mayo’s move to drop Medicare patients may be copied by family doctors, some of whom have stopped accepting new patients from the program, said Lori Heim, president of the American Academy of Family Physicians… ” (Dr. Kakutani may have some thoughts about the position taken by her national association.)

    Please abstain from broadcasting generalized villification of groups or individuals. You may critique if you provide substantiating documentation. Otherwise posts such as yours will be seen as unprofessional, undocumented, and uncivil. Provide the backup details requested along with your full personal disclosure in your next post.