Organized Radiology Plots Washington Course

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The diagnostic imaging industry’s lobbying priority for 2006 is clear, say representative of industry associations and imaging center owners: Stop the Medicare reimbursement cuts for imaging procedures included in the Deficit Reduction Act of 2005 from going into effect. But how? Now there’s the rub. To have any chance of having the cuts reversed or even moderated or delayed before they are scheduled to go into effect on January 1, 2007, a legislative vehicle must be found said Josh Cooper, senior director of government relations for the American College of Radiology (ACR). This would most likely be another Medicare-related bill that an elected official in the House or Senate could attach a provision to about diagnostic imaging reimbursement rates. Unfortunately, if such a bill is introduced, it will almost certainly be related to either the President’s January proposal for $30 billion in additional Medicare cuts, or the House and Senate’s interest in avoiding a legally scheduled but politically unpopular 5.5% cut to Medicare physician fees in an election year. (The cuts are mandated by Medicare’s sustainable growth rate formula, which was designed to slow the growth of the entitlement program, but have been waived each year for the past few years as physicians are a powerful lobbying force.) “It is a double edged sword,” Cooper said. On the one hand, either of the two sources for a bill would provide the hoped for legislative vehicle. On the other, both involve somehow squeezing even more money out of the Medicare budget instead of adding money too it to reverse cuts made previously. In addition, selling patience in waiting for the right legislative vehicle to diagnostic imaging industry members upset about the cuts may prove challenging for groups like the ACR and the National Coalition for Quality Diagnostic Imaging Services (NCQDIS). “I certainly do not want to wait until the end of the year and have to depend on an election year bill that might help the physician cuts also delay these cuts,” said Joseph A. Paul, president and founder of the diagnostic imaging group Cypress Partners LLC in Palm Beach Gardens, Fla. A Question of Fairness A second option—which the ACR is working on while it waits for the right legislative vehicle to come along—is to argue against the way the biggest cuts for diagnostic imaging services were added to the 2006 Deficit Reduction Act. In December, with the deadline for passing the Act looming and strong pressure to find additional cuts to get the Deficit Reduction Act to nearly $40 billion in savings over 5 years, a few key legislators held a closed-door meeting and added the provision that Medicare payments for diagnostic imaging services be reduced to the lowest of either the Medicare Physician Fee Schedule (MPFS) reimbursement rate or the Hospital Outpatient Prospective Payment System (HOPPS) rate. “Since this provision was added in essence in the middle of the night, there are many members of Congress who do not know this has happened,” Cooper said. “We have asked our members to write their members of Congress and explain what has happened with this provision.” In addition, the ACR is bringing up with Congress its concern that the way the provision was added was inherently unfair. The diagnostic imaging industry never had a chance to comment on the proposal, properly inform other elected officials who would be voting on the bill, or present any information about the differences between the HOPPS and MPFS payment systems and the unintended consequences that might result from simply basing Medicare payments for the technical component on the lowest fee in either the HOPPS or MPFS systems. “Our hope is that at the very least there will be a thorough review of the process by which this provision was inserted and hopefully some type of more reasonable and rational resolution to imaging reimbursement found,” Cooper said. Because of the way the cuts were added, imaging center owners interviewed by ImagingBiz.com did not hold the lobbying efforts of industry organizations such as the ACR and NCQDIS responsible for the failure to prevent the cuts as the legislative system that allowed such an important proposal to be added without public input. “It is very hard to blame anyone on that score, given the fact that there wasn’t notice,” Paul said. “Our democracy demands openness and there wasn’t any,” added Liz Quam, director of the Center for Diagnostic Imaging (CDI) Institute in Minneapolis, Minn, and chair of the public policy committee for NCQDIS. “This was not done according to the American system. This was not done right.” On March 2nd, the ACR and NCQDIS, along with 29 other health industry groups, sent a letter to Congressional leaders asking them to revisit the imaging Medicare cuts in the Deficit Reduction Act. Lessons Learned When asked if there was anything to be learned from what happened with the Deficit Reduction Act last year, Cooper said: “I believe we did everything we could. We had ongoing meetings for a year and a half with the right people. At no time was this type of cut ever discussed with us, nor was it discussed with any other group. It truly came out of the blue. The only lesson learned is that we have to make sure we have more people in the room that know about our issues and know about the unintended consequences.” But educating lawmakers about complex Medicare payment methodologies is not easy and the law does not require hearings with expert testimony for every provision. It is a situation Cindy Koelbl, one of the six managers of Southwest Diagnostic Imaging in Phoenix Valley, Ariz., finds problematic to say the least. “Someone didn’t understand the impact, yet they had the authority to make a law without that full awareness, and, to me, that indicates not so much a shortcoming of our professional bodies as of our entire [legislative] system that that can occur,” she said. “It gives me great pause with regard to our whole legislative process.” To make sure there are indeed more people “in the room” who know about imaging and Medicare reimbursement, imaging center owners need to become more informed about how the various payment systems that cover diagnostic imaging work so that they can use that knowledge to educate their lawmakers at a grass-roots level, Quam said. “That [Medicare diagnostic imaging reimbursement] is not understood on [Capitol] Hill should not be taken as anything more than that this is incredibly complex and we have to help them understand it,” she explained. “We have a local responsibility to get involved,” Koelbl added. “Failure to do that will be unfortunate for all of us because it can not fully be effective when approached on a national level—discussions with local representatives is critical.” To improve NCQDIS’s ability to reach elected policy makers, it switched its lobbying firm in February from Patton Boggs to Health Policy Source. “Their judgment is that all providers that are affected by the rate cap cuts need to work together because the squeakiest wheel is the one that usually gets the grease first,” Quam said. Courts and Partisanship Unlikely to Help One of the things that will likely not work, Cooper and Quam said, is to wait to see if the Deficit Reduction Act is declared invalid in court. After the President signed the Act into law, legislators discovered that a Senate staffer had altered language concerning a provision related to Medicare home oxygen reimbursement when the Senate-approved bill was sent back to the House for a final vote on the joint Senate-House language for the bill. The Senate quickly passed a provision correcting the mistake in the law the president had just signed, but House Democrats refused to help the House Republicans do the same and asked for another vote on the bill. House Republicans, who hold the majority, countered that the bill had already been signed into law and they were not going to hold another vote, which means the validity of the Deficit Reduction Act will need to be settled in court. In February Jim Zeigler, a specialist in nursing-home and Medicaid cases filed a suit in the US District Court of the Southern District of Alabama in Mobile to ask the court to issue a judgment that the bill was not in force. However, even if the suit is allowed to go forward at a hearing on the case expected later this month, it could be at least a year and possibly longer before it is settled through the legal system, Cooper warned. This is obviously too late to prevent cuts that will go into effect on the first of next year. In addition, both Cooper and Quam agreed that backing the Democrats’ complaints about the irregularities in how the law was passed might hurt their efforts to get bipartisan support for removing the cuts to diagnostic imaging, a key factor since Democrats were already opposed to the cuts and need little further convincing, and the Republicans are the majority party and therefore have more control over the legislative process. “I’m a big believer in trying to keep it as nonpartisan as possible,” Quam said. So how can diagnostic imaging avoid the cuts to its Medicare fee schedule, which private insurance companies will likely copy? As March begins, one thing is clear: The clock is ticking.