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Policy Diagnosis: CMS Fields Comments on Controversial Rule Through June 27

June 23, 2016

Editor’s Note: A proposed rule posted to the federal government website Regulations.

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Editor’s Note: A proposed rule posted to the federal government website Regulations.gov on May 9, 2016 by the Centers for Medicare and Medicaid Services (CMS) received 1,522 mailed or emailed comments by June 22 from people concerned or otherwise interested in how the rule would use a government scoring system to reimburse doctors and give legal authority to access patient medical records at any time in the name of quality monitoring.

Dr. Mike Koriwchak, vice president of Docs4PatientCare Foundation and cohost of The Doctor’s Lounge Radio Show, personally delivered his comments to CMS Acting Administrator Andy Slavitt in an interview broadcast on June 9. Health Care News asked Koriwchak to explain how the scoring system would affect doctors’ ability to care for patients and protect their patients’ privacy.

Hamilton: CMS proposed a rule in order to implement the Medicare and CHIP Reauthorization Act (MACRA), which President Barack Obama signed into law on April 16, 2016. What would MACRA, and potentially the CMS rule, do?

Koriwchak: MACRA changed the way doctors will be reimbursed for services by replacing the Medicare Sustainable Growth Rate (SGR) methodology with the Merit-Based Incentive Payment System (MIPS). The law mandated CMS to write a new regulation according to the legislation’s guidelines.

Hamilton: How would MACRA scale back reimbursements for hospitals, physicians, and other providers over the next decade using MIPS?

Koriwchak: The object of this regulation is to push doctors into bigger practices or into alternative payment models. If you resist that push, you can continue to get paid in a format based on the traditional fee-for-service model, but your payments will be ratcheted up or down. You will be rewarded or you will be penalized based on a performance score that runs from 1 to 100.

Hamilton: What criteria would CMS use to rate doctors on its 100-point scale?

Koriwchak: The score has four criteria. One is how well you use electronic medical records (EMR) according to Congress's guidelines. The second is how you report on some or all of approximately 465 quality measures, none of which have any science behind them. They were just arbitrarily dreamed up. None of them has actually been proven to do anything good.

The third criterion is this ethereal concept called resource-based spending, which has to do with how expensive your claims are. That's totally out of your hands. The last component is called quality improvement measures, which is, again, a bunch of stuff that was just dreamed up. It has absolutely no basis in research or scientific method.

In the end, this whole thing is probably going to cost upwards of $60–75 billion per year to implement. There's nothing in it that has been proven to work. That's the 50,000-foot view.

Hamilton: As a guest on the Health Care News Podcast on May 18, you said your expression of concerns about MACRA and MIPS had penetrated the federal bureaucracy, catching the attention of CMS Acting Administrator Andy Slavitt. How has your dialogue progressed?

Koriwchak:  We had him as a guest on The Doctor’s Lounge Radio Show for a 37-minute interview on June 9. I filled the rest in with my own analysis at the end.

If you listen to that show and see what Mr. Slavitt has to say, you’ll see you shouldn’t confuse the messenger with the message. I have a great deal of personal admiration for Mr. Slavitt. He was brought to CMS to fix Healthcare.gov. He did that to some level. Then he got this other job of being the face of this very controversial law. He's the guy that goes out and talks to doctors and takes the heat. That's the first thing I want people to know.

Hamilton: What concerns did you raise about MACRA and the proposed CMS rule in your interview?

Koriwchak: There were two points that came across as of the greatest interest. The first concerns the scoring methodology, which determines levels of reimbursement to doctors. You have doctors who get rewarded, and you have doctors who get penalized. MACRA specifies the scoring must be revenue-neutral. That means there has to be enough losers to pay for the winners. This system must, by definition, grade doctors on a curve.

Hamilton: Does the scoring system pick winners and losers?

Koriwchak: By the government’s own estimates, among the 30 percent of physicians who are in practices of eight or less, approximately 75 percent are going to get penalized. Unless you're in a practice of 100 physicians or more, you are more likely to get penalized than rewarded.

Large practices have economies of scale that can implement the law’s requirements. Unfortunately for small practices, it costs almost as much money to make one doctor compliant as it does to make 100 compliant. Once you've built it, all you have to do is clone it.

Hamilton: What else is at stake if CMS proceeds to implement MACRA as proposed?

Koriwchak: Besides forcing small doctors to lose, there's another very dark piece of this regulation. It gives CMS Big Brother backdoor access to everybody's medical records. This is a Fourth Amendment problem. Whatever privacy is left is going to be gone.

Mr. Slavitt did concede during our interview they are getting a lot of pushback on that and implied this is going to get a very hard look between the proposed rule and the final rule.

Readers can comment on the proposed CMS rule through June 27 at Regulations.gov.

Michael T. Hamilton (mhamilton@heartland.org) is The Heartland Institute’s research fellow for health care policy, managing editor of Health Care News, and author of the weekly Consumer Power Report.

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Michael Hamilton writes and edits for the liberty-minded clients of Good Comma Editing, LLC, a freelance writing and editing company.
media@heartland.org @MikeFreeMarket

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