Lobbying Against DRA Scores Victories but Battle is Far From Over

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Grassroots lobbying can at times seem more frustrating than helpful. Tremendous effort is invested in contacting legislators via e-mail, fax, phone, and in-person visits and often nothing seems to happen. But when it works, it can create successes that millions of dollars for professional lobbying could not match. Grassroots lobbying for a repeal of the Deficit Reduction Act (DRA) cuts to diagnostic imaging services scored just such a victory in April when a group of radiologists from New York convinced Representative Carolyn McCarthy (D-NY), a registered nurse turned Congresswoman, to introduce HR 5238, a bill to eliminate the adjustments in Medicare payments for imaging services made by section 5102 of the DRA. Section 5102 capped the technical component of payments for imaging services provided in a physician's office or free-standing outpatient diagnostic imaging center to the lower Hospital Outpatient Prospective Payment level and reduced the technical component for second and subsequent imaging procedures performed in these non-hospital locations on contiguous body parts by 25% this year and 50% next year. “[HR 5238] really is a great example of grassroots success,” said Liz Quam, chair of the public policy committee of the National Coalition for Quality Diagnostic Imaging Services (NCQDIS). Laurence Gugliotta, sales manager of PresGar Companies, a 40-plus facilities multi-state imaging group based in Tampa, Fla, with 13 centers in New York, and his marketing representative Scott Tessell were among those who stopped by the home offices of New York legislators, including McCarthy, following the introduction of HR 5238. “I was a little surprised they were so approachable,” Gugliotta said. “In one office [Representative Carolyn B. Maloney’s], I was able to meet with the chief of staff of the New York office, which I was pretty impressed with.” Gugliotta and Tessell made their trip the week after the bill was introduced to continue to push the issue. “It was time to take the ball and run with it,” Gugliotta said. The success of the New York radiologists surprised even PresGar Senior Vice President and General Counsel Jeff Greenberg. “I didn’t know a bill like this could be introduced,” he said and added that it was an encouraging development. “I am very hopeful that with this bill and our involvement that we will be able to make some headway in reversing these cuts.” The bill, if passed, could mitigate the cumulative effect of several different imaging reimbursement cuts occurring in a single 2-year time period, said W. Cannon King, vice president of business development for Outpatient Imaging Affiliates (OIA), a Nashville, Tenn-based group of 13 imaging centers in nine states. “I suspect that when the imaging cuts were originally evaluated and discussed, if they were at all, the legislators were maybe oblivious to the fact that many of these outpatient provider cuts [the contiguous body part reduction and the elimination of the 2-D reconstruction code] were already coming down the pike,” King said. More Work to Be Done King and OIA are not counting on the bill, which was introduced on April 27, getting too far on its own, however, and are continuing to operate as if all the cuts in the DRA will still go into effect. “It does give us a ray of hope, but there is cautious optimism attached to it,” he said. “Hopefully it is clear to everyone now that the cuts really run too deep, and in our mind we think both sides of the aisle should stand up and support the bill. But whether that is going to be the case is yet to be determined.” Cautious optimism is a good approach to this bill, say experts in public policy, such as Quam and Josh Cooper, senior director of government relations for the American College of Radiology (ACR). There are only a couple of months left in the regular session of Congress and bills that are very narrow in focus—HR 5238 is barely 2 pages in length and concerns a single issue—typically cannot get enough policy makers interested in them to push them out of committee, onto the Congressional calendar, through votes in both the Senate and House, and onto the President’s desk for a signature. However, small bills can increase the profile of an issue and may even be incorporated into larger bills that do come up for votes in Congress. “It is a discussion item,” Quam said. “That does not mean that it is going to be the bill that ends up making it all the way through. What it does is heighten awareness on the Hill because it has gotten introduced. That is the value of it.” Shawn Farley, public relations manager for the ACR, seconded Quam’s qualified enthusiasm. “The College supports the New York radiologists who brought the issue to [Rep. McCarthy's] attention, and we support Rep McCarthy's bill to repeal the imaging provisions in the DRA,” he said. “However, this bill would likely have to be attached to a larger bill to move through Congress. It is very unlikely that it would pass a standalone measure.” The Larger Picture Neither NCQDIS nor the ACR said they could take credit for the introduction, which was due to the work of the New York radiologists and Representative McCarthy. However, Quam hoped to build on this success with the professional lobbying and member grassroots advocacy NCQDIS had already started. NCQDIS, the ACR, the National Electrical Manufacturers Association (NEMA) member companies, patient groups, and other organizations concerned about Medicare reimbursement cuts for diagnostic imaging services have managed to get more than 40 Republican legislators to sign a “dear colleague” letter to their leader, Speaker of the House J. Dennis Hastert (R-Ill), about the issue of the cuts to the technical component for diagnostic imaging. “What we have is sort of a one-two punch in that next week the Hastert letter will be released,” Quam said as this issue was posted. Getting more than 40 Republicans, including many who had originally voted for the DRA, to sign on in a fairly short time period is another great example of grassroots success, she added. “I don’t care how much we spend or how many lobbyists we hire on the Hill, you can’t get that many members of Congress in the space of 3 months to do something without appealing from their home district,” she said. But the battle is far from over. The next step for NCQDIS is to turn its attention to the Senate and try to repeat the successes achieved in the House there, Quam said. In addition, any single bill or provision within a larger bill that proposes to repeal a cut to Medicare must be considered against the backdrop of the larger budget issues going on in the Federal government. Holding down spending in the face of growing concern about the national budget deficit is a priority for many legislators, and while the House Committee on the Budget did release the good news that the 2006 budget deficit will likely be less than expected because the government collected $60 to $65 billion more in taxes in 2005 than it thought it would, this may not necessarily improve the outlook for reversing the diagnostic imaging cuts. Lawmakers will still balance the cost of reversing the cuts against many other competing demands for planned spending increases and will likely consider the Medicare Trustees Report issued in May that showed that Medicare’s financial outlook declined slightly compared to last year’s estimate “The fact is the system is broke and it is going to be hard to get dollars put back in anywhere,” King said. “We really at this point have to appeal to that [these cuts] could adversely affect patient care going forward and the physician’s ability to properly diagnose and treat patients.” It would be terrible, King and others agree, if the cuts would get so far that they actually start to impact patient care because little research has been done on what would happen then. “We don’t know what the effect of this will be,” said Robin Strongin a partner with the health policy firm Polidais LLC, Washington DC. Strogin, who has 23 years of experience in health care policy and legislative analysis, has worked with NEMA for 3 years and said reversing the cuts is a big priority for the organization. However, she was hopeful that once legislators got better information, they would not want to go ahead with the cuts. “We see this as just a bad budget decision,” she said, and added that NEMA was putting in a lot of time and effort into educating policy makers about the cuts, something they would not do if they saw the situation as hopeless. “There is still a long way and not very much time, so we still have a lot of work to do,” Quam said. “We still have to chisel at that rock, but it is not so hard that we can’t chisel.” But to properly build on the introduction of HR 5238 and the signatures gathered for the Hastert letter, imaging centers need to keep up their grassroots lobbing efforts. “Constituent contact is still the most effective lobbying force there is,” she said. Democrats Sue the DRA If someone other than the government was threatening to impact your business to the extent the Deficit Reduction Acts (DRA) cuts to Medicare imaging services may, you might take them to court. That is exactly what some opposed to provisions within the DRA have done, and now that group includes 11 senior House Democrats. At least three lawsuits have been filed since the DRA was passed seeking to have it declared invalid because a clerical error caused a slightly different version of the Act to be signed into law than the one that the House actually voted for. However, this is the first of these lawsuits filed by sitting members of Congress. According to The Hill, a newspaper about Congress, House Democrats were upset that their demand to vote on the text of the Act the President signed before it actually became law was not listened to by the Republican leadership, and have been “stewing since February over the typo snafu.” The lawsuit signals that they are not about to let the issue drop. John Conyers (D-Mich) and John Dingell (D-Mich) are working with the law firm Dykema Gossett, Ann Arbor, Mich, on the case. Their co-plaintiffs are Representatives Sherrod Brown (D-Ohio), Barney Frank (D-Mass), George Miller (D-Calif), James Oberstar (D-Minn), Collin Peterson (D-Minn), Charles Rangel (D-NY), Louise Slaughter (D-NY), Pete Stark (D-Calif), and Bennie Thompson (D-Miss). The Republicans have maintained that the error was rectified when House Speaker Dennis Hastert (R-Ill) and Senate President Pro Tempore Ted Stevens (R-Alaska) certified that the measure reflected the intent of Congress before sending it to the President for signing. But while you might wish to cheer on the DRA being declared unconstitutional, it may be best to keep such thoughts private, say those advocating for a reversal of the DRA’s cuts to diagnostic imaging. According to Josh Cooper, senior director of government relations for the American College of Radiology (ACR), the resolution of any lawsuit can take years and the cuts will go into effect much sooner than that. In addition, the issue is highly partisan and the diagnostic imaging field will need support from both sides of the aisle to prevent current and future cuts to Medicare payments for diagnostic imaging services. Small Business Health Plan Law Poses Possible Threat While low reimbursement rates have made mammography services a bit of a burden for some diagnostic imaging center, their importance in the early detection of breast cancer is generally accepted, and that is why the American Cancer Society (ACS) is up in arms about the Senate’s “Health Insurance Marketplace Modernization and Affordability Act” (S.1955). To allow insurers to offer more low-cost health care plans for smaller businesses, the Act includes a provision that permits them to sell plans that do not conform to state requirements for included services, such as mammography, as long as they also offer a premium plan that does include coverage of all required services in that state. According to the ACS, this creates a loophole for insurers to get out of offering some of their beneficiaries services that the state legislatures have deemed so important that they should be a mandatory benefit for all insured people. “This bill would nullify all of ACS’ work in the states to guarantee access to mammography, colon cancer screening, clinical trial participation, off-label drug use and other cancer screenings and treatments,” the society said in a written statement. S. 1955 was introduced by Senator Mike Enzi (R-Wyo) and is co-sponsored by Senators Ben Nelson (D-NE) and Conrad Burns (R-Mont). It was approved by the US Senate Committee on Health, Education, Labor and Pensions in March and is currently waiting to be considered by the full Senate.