Self Reflection Could Benefit Organized Medicine in America ~ Is the Power of the AMA Truly Serving Physicians and Patients?
The following piece demonstrates, in four succinct and salient points, how physicians and patients in America stand to lose if the far-reaching and often self-serving powers of the American Medical Association are allowed to stand. The analysis presented here is a compelling call to action for all of us…
by Richard Willner, VP, AMS (The Center for Peer Review Justice www.PeerReview.org)
I. What is the RUC?
According to the American Medical Association (AMA) website regarding the RVS Update Committee, the AMA created the AMA/Specialty Society Relative Value Scale Update Committee (RUC) “to act as an expert panel in developing relative recommendations to CMS.” The Centers for Medicare and Medicaid Services (CMS) requires a medical services valuation committee to make recommendations. According to the AMA (in its toptenthings.pdf available on the AMA website), the RUC is “an independent group exercising its First Amendment Right to petition the federal government.” The AMA then proceeds to point out “the RUC is not an advisory committee to the Centers for Medicare and Medicaid Services” (CMS). CMS is entirely responsible for the RBRVS [Resource-Based Relative Value Scale]. All modifications to the RBRVS are made through ‘rulemaking’ and open to public comment.” This is one definition of the RUC, but alternative interpretations have surfaced.
According to an organization called “Replace the RUC!,” the RUC is a “secretive committee of the AMA that has been CMS’s primary source of physician payment data over the past 20 years.” [Paul M. Fischer, MD, Why Medical Specialists Should Want to End the Reign of the RUC, Aug. 16, 2011].
The result of the RUC’s recommendations to CMS over the past 20 years has resulted in increasing disparity between incomes for those providing primary care versus specialty services. This disparity resulted from the emphasis on procedure-based reimbursement, presumably favoring specialists.
II. How Does the RUC Affect My Practice, and Why Should I Care?
Society holds high esteem to those in the health profession. The 2010 Gallup Poll listed nurses as holding the highest level of honesty and ethics for the 11th year. Nurses received a response of 81% for “very high/high” ratings for honesty and ethical standards, while medical doctors scored 66% for the “very high/high” category. The lowest ratings in the poll went to lobbyist, car salespeople, and members of Congress. [Jeffrey M. Jones, Nurses Top Honesty and Ethics List for 11th Year, Dec. 03, 2010]. In a Gallup Poll from June 2009, “[n]early three-quarters of Americans (73%) say they are confident in doctors to recommend the right thing for reforming the U.S. healthcare system. That is significantly higher than public confidence extended to President Barack Obama . . ..” [Lydia Saad, On Healthcare, Americans Trust Physicians Over Politicians, June 17, 2009]. Many Americans falsely believe the AMA is the voice of physicians in America, but is this truly the case for your practice? There is an old adage that the person that cares most about your personal interests is you, so it would be foolhardy to consider the AMA to really be looking out for you, or your patients’ best interests in its dealings through the RUC with CMS.
Physicians must ensure that the respect entrusted by the public is protected in every aspect of healthcare, including the means by which recommendations are made to CMS regarding the valuation of services and procedures.
There are six family physicians in August, Georgia who have filed a legal complaint in an effort to seek non-monetary relief from “the negative effects brought about by CMS’ twenty year reliance on the . . . (RUC) for valuing doctors’ work.” [Brian Klepper and David Kibbe, CMS’ Opportunity: A Lawsuit Offers A Chance To Reform Physician Payment, Oct. 25, 2011].
In a sense, the suit reflects the larger concerns of America’s increasing unrest: a general frustration with a system rigged to benefit the few at the expense of the many–i.e., privatizing profits while socializing losses. It calls into question an incentive structure that has resulted in half or more of all health spending providing no utility and translating to exorbitant cost but debatable value. In other words, the case is accompanied by a sense that the system, as it is currently constituted, is failing the American people. [Id].
It is important to recognize that the efforts of the six family physicians who filed this suit, initially funding their legal endeavor themselves, to protect the integrity and honesty in the valuation of healthcare services, does not supplant the need for other physicians to be proactive in this cause.
III. Fischer et al v. Berwick et al (Case No. 1:2011cv02191)
The case mentioned in Section II above was filed in the Maryland District Court on August 8, 2011, and its stated cause per Justia.com is “42:1395 HHS: Adverse Reimbursement Review.” The complaint is available at: http://op.bna.com/hl.nsf/id/droy-8kklwq/$File/Fischer%20v.%20Berwick%20complaint.pdf. The plaintiffs have filed six different claims for relief. A brief review of those claims follows, but a full read of the actual complaint in recommended as only excerpts are presented here.
The first claim is based under the Administrative Procedures Act (APA) “for an agency violation of the Federal Advisory Committee Act” (FACA). In the first claim, the plaintiffs argue that the RUC has become a de facto Federal Advisory Committee (FAC) by having “actual management or control” of a federal agency. [Fischer citing Am. Soc’y of Dermatology v. Shalala, 962 F. Supp. 141, 147 (D.D.C. 1996) (citing Wash. Legal Found. v. U.S. Sentencing Comm’n, 17 F.3d 1446, 1450 (D.C. Cir. 1994)]; the group is “a limited number of private citizens who are banding together to give publicized advice as a group.” [Id. at 148]. The plaintiffs support the de facto FAC argument “based on CMS’ and HHS’ reliance on the recommendations of the AMA RUC and CMS’ exertion of control over the AMA RUC.” Fischer at 52.
The second claim is based under the APA and independently for the agency violation of the Delegation Clause of the U.S. Constitution. The Delegation Clause of the United States Constitution vests all legislative power in the United States Congress, which can designate authority to federal agencies. However, federal agencies cannot sub-delegate their power to non-federal agencies. When a federal agency gives a non-federal agency or group final reviewing authority over the responsibilities of the federal agency, it violates the Delegation Clause.
CMS and HHS are responsible for the development of RVUs and the mandatory 5-year review of the RVUs. CMS and HHS have improperly delegated their authority to establish RVUs and conduct periodic reviews to the AMA RUC. [Fischer at 56].
The third claim is based under the APA and independently for the agency violation of the Fifth Amendment Due Process Clause. The plaintiffs allege that “CMS and HHS admit that their own data demonstrates that the primary care “evaluation and management codes: are undervalued and that the present AMA RUC-based evaluation system creates “distortions” in the payment system.” [Id. at 59]. The plaintiffs further allege that the “continued use of survey data collected by conflicted, self-interested specialty societies, which data the RUC chairman concedes are known to be overinflated and which are based upon statistically unsound methodology and validity,” causes the plaintiffs and other primary care physicians to be “denied income that they would otherwise have obtained, were the primary care codes accurately valued.” [Id].
The fourth claim for relief is based under the Mandamus Act “for an agency violation of the Patient Protection and Affordable Care Act (PPACA, a/k/a Obama Care). . . for failure to carry out a non-delegable duty to ensure the accuracy of the Physician Fee Schedule and under the FACA for failure to follow the requirements regarding a utilized advisory committee.” [Id. at 61]. The fifth claim for relief is based under the APA for violation of the PPACA. Finally, the sixth claim is a request for relief based on the granting of Declaratory Judgment.
These excerpts are provided to illustrate merely a few of the considerations individual providers should ponder in determining whether the AMA is really representing the interests of your practice, or whether pause for concern is justified. For the majority of physicians, a red flag should be raised alerting you to the need to take action to protect your interests.
IV. Who Else is Concerned, and What Can Be Done?
This depends on who you are of course. If you happen to be one of the few on the RUC setting the fees, then perhaps you would argue the system is just fine as it is. If you are among the majority of physicians concerned about appropriate valuation of services and society’s concern over rising healthcare costs, then the time for brainstorming solutions is upon you. One recommendation for consideration is represented in a letter dated March 28, 2011, to the American Academy of Family Physicians (AAFP) from the New Jersey Academy of Family Physicians. Available at: http://www.njafp.org/sites/ethos.njafp.org/files/aafp_ruc_heim_3.28.11_elec.pdf
1) There must be an alternative body in addition to the RUC to advise CMS on payment issues and such a body needs to include employers, consumers, etc. (also supported by the MedPAC)
2) There must be voting transparency by the RUC
3) AAFP will continually review its participation in the RUC
In a letter dated May 2, 2011, addressed to the Board Chair of the AAFP, the President of the Florida Academy of Family Physicians wrote, “[t]he RUC has failed our patients by refusing to recognize the value of primary care physicians and . . . has diminished the importance of primary care in this country.” Available at: http://replacetheruc.files.wordpress.com/2011/05/aafp-ruc-let-final-05-02-11.pdf
As a result of the passage of the ‘Affordable Care Act’, CMS is obligated to correct misvalued codes and has already publicly acknowledged that this is their duty. The Florida Chapter believes it is in our collective best interest to pursue a strategy that does this in a fair and equitable way. Therefore, we recommend that the AAFP resign its RUC membership and join like-minded organizations in the lawsuit mentioned above. We believe this is an approach that will lead to fixing the problems created by the RUC. [Id].
It is not just family physicians that have pointed out the conflicts of interest. The Government Accountability Office (GAO) and MedPAC have criticized the CMS RUC arrangement. [Joe Eaton, Little-Known AMA Group Has Outsized Influence on Medicare Payments, Center for Public Integrity, Oct. 27, 2010]. According to that article, from 1991 to 2010 the RUC made more than 7,000 recommendations to the CMS for the valuation of physician services, and the CMS has “overwhelmingly rubber-stamped RUC recommendations, accepting more than 94 percent, according to AMA numbers.” [Id].
The AAFP “suggested looking for experts who are ‘less invested financially in the outcome,’” to verify the valuation of medical procedures. [Id]. MedPAC was critical of the CMS reliance on the RUC in its 2006 report to Congress where they suggested the CMS should “establish its own group of experts, separate from the RUC.” [Id. at 4].
V. Conclusion.
There is much at stake revolving around the status quo as it relates to the relationship between various abbreviations – i.e., AMA/RUC to CMS, etc. Until presented with such consequences in the form of diminished reimbursements and resultant lower bottom lines, the average physician might not realize what is happening to his or her practice. Although the public may still falsely perceive the AMA to be the voice of physicians in America, there is an obvious disconnect with many of the physicians in the U.S. (85% of whom are not AMA members) – unless you are on the receiving end of a self-serving committee such as the RUC.
There are some laudable efforts by groups such as the family physicians who are taking legal action in the Maryland District Court, and various components of the AAFP, but more needs to be done. In the end, it is your wallet that is being emptied. You are being robbed of the opportunity to live up to the public’s opinion that physicians are more suitable to correct the healthcare financial crisis than politicians, because self-dealing, self-serving committees like the RUC will eventually be attributed to the “greedy doctor” phenomenon. Indeed, you, the American physician and the American patient, are being robbed of the opportunity to maintain the respect and integrity the healthcare profession deserves. It is time for you to act and not sit on the sidelines hoping someone else will fix the problem. In the end, if you place your faith solely in politicians to fix the problem (or in the status quo AMA ‘corruption’), you will have no one to blame but yourself for the consequences.
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Bill Gunderson 
