Is Time Running Out?

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In a typical year, more than 10,000 bills and resolutions are introduced in Congress and fewer than 5% of these actually become law. So while radiology advocates celebrated another victory in August — a Senate bill to reverse cuts to Medicare payments for radiology — these long odds were definitely in the back of their minds. “I am a little more relieved, but I have got the blinders on until September,” said Josh Cooper, senior director of government relations for the American College of Radiology. “I’ve been in enough of these to know that it is not over until it is over.” The Senate bill — S. 3795, the Access to Medicare Imaging Act — calls for a 2-year moratorium on medical imaging reimbursement cuts included in the Deficit Reduction Act of 2005 (DRA). The bill also requires a comprehensive Government Accountability Office (GAO) study to analyze the impact of the DRA payment methodology on patient access. Introduced on August 3, it is the companion bill to the House bill — H.R.5704, the Medical Imaging Act of 2006 — which was introduced on June 28. Should both bills make it out of committee, be voted on, and pass, they would then be combined into a House-Senate joint resolution, voted on again by both Houses, and sent to the president to be signed into law. If this sounds like a lot, it is. No single-issue bill, like the DRA moratorium, is likely to survive such a process. To pass, a single-issue bill must typically be attached to a larger provision with more political clout behind it. “Although we believe it is a huge issue, [the DRA cut to imaging] is not large enough to garner a stand-alone vote,” Cooper said. Buddy, Can You Spare a Ride? Unfortunately, medical imaging is not the only Medicare-funded service out there looking for help this year. There are many competing interests all clamoring for Medicare to correct past cuts and increase funding of their particular areas of service. Should a bill concerning Medicare come along before the end of the legislative session, all of these interests may try to have their provisions attached to the larger bill. “In Washington, we call it ‘Christmas-treeing,’” Cooper explained, and added that because this is an extremely tight budget year, the Congressional leadership will be very opposed to the practice because tacking on provisions can quickly inflate the cost of legislation. “The folks in charge of a Medicare bill are going to make it very clear to both sides of the aisle that there will be very few, if any extraneous provisions allowed,” he said. Right now, the most likely vehicle to attach imaging’s provisions to is either some type of financial bill or a bill to fix the physician fee cut mandated by Medicare’s sustainable growth rate (SGR) provision. In past years, Congress has consistently passed such legislation because of concerns that Medicare patients’ access to physicians, which is already somewhat limited, will grow even worse if the SGR reduces physicians fees. Legislators originally created the SGR provision to control the growth of Medicare, so when Congress has passed legislation preventing the SGR cut from going into effect, it has also had to reduce Medicare spending in other areas to prevent the Medicare program from becoming too expensive. Last year, the cut fell most heavily on diagnostic imaging, and this, Cooper said, gives strength to the argument that including a DRA moratorium with the SGR correction is not the same as including an extraneous provision. The two are, in fact, directly connected. “It is very much an issue that should be included since, basically, our cuts were due to the fact that they needed money for the SGR fix,” Cooper said. Helpful and Hurtful Competition On July 24, Representative Michael Burgess (R-Tex) and three original co-sponsors introduced a bill (HR 5866) to, among other things, reform physician payment under the Medicare Program. It includes a provision to eliminate the SGR formula and tie physician payments to the Medicare economic index (MEI), a measure of the cost of providing physician services. However, at a July 25 hearing before members of the House Energy and Commerce Subcommittee on Health, Donald B. Marron, acting director of the Congressional Budget Office, warned that repealing the SGR system altogether and tying payment rates to medical inflation using the MEI (which forecast increases of 2% to 3%), would increase projected federal outlays by $218 billion over the next 10 years. Even a one-year fix is costly. Replacing only the scheduled payment reduction in 2007 with a 1% payment increase could raise federal outlays by $6 billion to $31 billion over the next 10 years, he told the committee. “The problem is that there is just no money because of Hurricane Katrina and the war,” said Liz Quam, chair of the public policy committee of the National Coalition for Quality Diagnostic Imaging Services (NCQDIS). While diagnostic imaging may need to ride along with a larger issue, such as the SGR fix, to get through the legislative process, it also competes with these issues for limited funds. There is great pressure to make any correction to the SGR or the DRA budget neutral. “There is always competition for money of every kind, but what your readers should understand and be very sobered about is that we already took a cut to make the physician fee cut budget neutral last time,” she said. “Imaging providers were absolutely the victims of that. They took 30% of the hit for it.” Quam said that one way Congress may fund an SGR correction this year could be to institute a 10% across-the-board reduction on all Medicare services, including diagnostic imaging. Weathering another 10% cut on top of the cuts in the 2005 cuts from the DRA would be very hard for imaging providers, and she was doubtful that Medicare would even see the savings it thought it would realize from the DRA. “I still absolutely firmly believe that there are not the cost savings that they projected in there,” Quam said. “Even though they may put some of us who can not self refer out of business—and certainly some of the imaging centers will go out of business—that does not mean that utilization will go down elsewhere.…I think it is funny money that they are showing as savings because it is not going to happen, and people who understand this industry agree with me on that.” Hearing Helps Cause While the fight may be far from over, Quam and Cooper are encouraged that the issue has gotten this far. The Senate bill’s introduction has improved the odds, as has last month’s hearing on the DRA imaging cuts before the House Energy and Commerce health subcommittee. “We certainly got more co-sponsors on the [House] bill as a result,” Cooper said. So far the House bill has racked up 68 co-sponsors, including influential representatives from both political parties. In addition, when the ACR spoke to Senators and their staffs about introducing a Senate version of the House bill, many were aware of what had happened at in the House hearing, Cooper said. “I think Chairman [Nathan] Deal [R-Ga] got a very clear message from his subcommittee members that—at least from a process standpoint and policy standpoint—even in Washington, this is not the way to do business and that we need to seriously consider a 2-year moratorium,” Cooper explained. “I think that message has carried over to the Senate. We have had several meetings with folks on the Senate side where they were very well aware of what had happened in that hearing as well…so the profile was definitely raised in a positive sense.” In the hearing, subcommittee members grilled Herb Kuhn, director of the Center for Medicare Management of the Centers for Medicare & Medicaid Services (CMS), and Glenn M. Hackbarth, JD, chairman of the Medicare Payment Advisory Commission (MedPAC), about the lack of data they had on what the impact of the large cut to diagnostic imaging reimbursement contained in the DRA might have on Medicare beneficiaries’ access to such services. They also got both to admit that neither CMS or MedPAC had suggested that the DRA should include a provision to pay for imaging services at the lesser of either the Medicare Physician Fee Schedule (MPFS) or the Hospital Outpatient Prospective Payment System (HOPPS) rates. “That is always a good sign when no one is claiming ownership of something,” Cooper said, and added that his personal favorite moment of the hearing was when Representative Mike Ferguson (R-NJ) asked why HOPPS is an accurate reimbursement system when it is less than the MPFS rate and it is inaccurate when it is more. “I thought that encapsulated our entire argument,” Cooper said. “It brought a tear to my eye.” A ‘Significant Bone’ Another possible positive sign may be that CMS did not take the opportunity this month to implement the DRA cuts to imaging as aggressively as it could have. In announcing its policy and payment changes to the Medicare Physician Fee Schedule in 2007, it said it no longer plans to raise the reduction on the technical component for multiple imaging procedures in 2007 from 25% to 50% of the cost of the second or third procedures. In addition, it is not changing its assumption about utilization of imaging equipment at this time, as some had expected. CMS’s payment methodology calculates the cost of providing imaging services in a setting where the imaging equipment is used 50% of the time. However, CMS has cited some studies that indicate that imaging equipment is actually used more than half the time and the payment methodology is therefore calculating the actual cost as too high. Therefore, payments should be lower and closer to HOPPS rates. Finally, for imaging services subject to both the multiple imaging reduction policy and the reduction to the HOPPS rate, CMS proposed to first apply the multiple imaging adjustment and then apply the outpatient cap. This approach would results in higher payments than if the cap were applied first. While Quam cautioned that NCQDIS and others were still carefully analyzing CMS’s proposed policy and payment changes as this column was posted, she thought that on the face of it, it seemed as if CMS was “attempting to throw us a bone and in the process dampen the momentum for the DRA moratorium.” If the multiple procedure cut is not going to go up to 50% come January 1, it could make some lawmakers think a bill to fix the problems with cuts to imaging does not have to be passed this year. To counter this impression, Quam urged stakeholders in diagnostic imaging to keep pushing their lawmakers for a legislative fix. “The good news about [the CMS proposed rules] is that ‘the bone’ is relatively significant, which means our efforts-to-date have been effective,” she said. “For me, it is inspiration to keep pushing for the DRA moratorium bill.” Another way to look at CMS’s proposals is as a reminder that the DRA cuts are getting one step closer to reality even though there has not been any analysis of the impact of the cuts on Medicare patient access to diagnostic imaging, said Ron Geigle, founding partner of Polidais LLC, a public affairs firm that represents the National Electrical Manufacturers Association’s diagnostic imaging interests. “We still don’t’ have answers to any of the questions the members of Congress posed at that July 18 hearing,” he said, and added that he hoped the CMS announcement would lend urgency to passing a moratorium bill, not lessen it. Going Forward Keeping the momentum for a DRA moratorium going will require everyone to ask their legislators to support the bills currently under consideration. “I think members of Congress, once they introduce a bill, love to be reinforced as to the necessity of the bill and that requires folks to contact their members of Congress to ask that this legislation be enacted,” Cooper said. “I think sometimes lawmakers go ahead and introduce something and then kind of forget about it—and I don’t want that to happen.” Even with a House and Senate bill, there is still a long way to go, Quam cautioned. “What everybody needs to do is not just assume that just because they talked to their member of Congress once, that that is enough,” she said. “They just have to keep asking over and over again.” NCQDIS has sample letters to help radiology practice owners and employees ask their home Senators to be co-sponsors of the Senate bill. “Anybody and everybody needs to make noise,” Quam said. “What has worked to date is the ‘hue and cry’ from outside of Washington.” Also, diagnostic imaging providers should know that even with a great push from grass-roots lobbying, chances are that passing a moratorium on the DRA cuts for imaging might not happen until after the November election. Cooper still puts the odds of it happening at about 50-50, just as he has since the beginning of the year, because of the lack of control over the legislative vehicle to attach the bill to and the problem of how to offset the cost of the moratorium so that it doesn’t increase the Medicare budget. “But it is a more optimistic 50-50 than it was before the hearing,” he said. “We certainly have a legitimate issue, but it is going to go down to the wire and it could be very much like the DRA where you might not find out for a day or two after [all the policymakers] go home at 4 o’clock in the morning.”