Response to TMA President Dr. King Regarding His Campaign for H.R.2

Dear Dr. King,

I was stunned when I received your TMA alert instructing Texas physicians to contact Senator Cruz and tell him to support H.R.2 using your talking points. Have you completely read H.R.2 yourself? Where did you get your talking points? Whose interests do you represent? How did you conclude you as the leader of TMA should back H.R.2?

Like you, I have long held Dr. Burgess in highest regard. His goal of repealing SGR is laudable, but the associated side effects of this proposed SGR cure are worse than the disease. H.R.2 was exposed to far too much outside contamination, whether that be from specialty hospitals, IT, or other special interests, such that the intended SGR fix becomes irrelevant in short order when the Alternative Payment Models ushered in by H.R.2 take effect. Secretary Burwell is targeting 85% of Medicare to be delivered by such models by 2018, less than 3 years from now, at which time the SGR becomes immaterial even if still in place. H.R.2 is the fast track for Secretary Burwell’s agenda.

The proposed legislation that accompanies the SGR repeal puts physicians who honor the Hippocratic oath and the confidentiality of the patient-physician relationship in an ethically untenable position when it monetarily incentivizes us using the Merit-based Incentive Payment System based on a Composite Physician Scoring System that requires we engage in Meaningful Use EHR, that includes full disclosure of the private medical record containing private patient information to authorized users of the data including a provider of services, a supplier, an employer, a health insurance issuer, a medical society or hospital association, or any entity that is approved by the Secretary, as determined by the Secretary. If we refuse to do this we get a 0 on the Meaningful Use EHR component (25%) of our Composite Physician Score which will negatively impact our public listing on the Physician Internet Compare website of CMS and earn us a “negative payment adjustment factor” as the Secretary determines.

Did you ever imagine you would be President of the Texas Medical Society instructing the physicians of Texas to violate our Hippocratic Oaths, disclose confidential patient information, be scored like grade-schoolers by a government rubric that rewards us for doing what the Secretary of Health and Human Services, a non-medical political appointee, says, penalizes us for resisting, and then publically lists this for all to see under the guise that it informs patients which of us are better quality doctors? I doubt this is what you foresaw when you matriculated at the esteemed Baylor Medical School.

Let’s evaluate your talking points on why you say we must get Senator Cruz to vote for H.R.2 one by one:

  1. It repeals the SGR immediately, stopping the 21-percent cut in physicians’ Medicare payments.

While HR2 repeals the SGR, the SGR payment conversion factor is actually just phased out and replaced by a far worse system of new conversion factors based on Alternative Payment Models (APMs) which are projected by the HHS Secretary to apply to 85% of Medicare Payments in a mere 3 years and fully replace the SGR by 2026.That means SGR wouldn’t have mattered anyway. They used it to give us something worse. We traded the pill for the suppository. Under APM’s physicians are no longer paid directly for their work but only through an “eligible alternative payment entity” in a lump sum on an annual basis on a capitated basis. In order to be paid by CMS under APM’s, money can only be paid to eligible alternative payment entities, not individual physicians, and only to entities that collect patient data and do reporting on performance category measures ultimately determined by the Secretary, use Meaningful Use EHR, and participate in a medical home. Sorry, but through this bill we are selling out our patients and principle for the long haul for the lure of short them money. A year extension of the SGR is better than this bill with its baggage that smothers physician autonomy and the private practice of medicine.

  1. It guarantees small, but real, increases in payment rates for the next five years.

This relates to what I just said. The Secretary of HHS wants APMs to cover 30% in a year, 50% next year, 85% in 3 years, and 100% in 10 years. So the claim of guaranteed small payment increases is about as true as “if you like your plan, you can keep your plan. If you like your doctor…. Not one dime… “ and so on.

  1. It rolls the Physician Quality Reporting System (PQRS), Meaningful Use (MU), and Value-Based Payment Modifier (VBM) into one, simpler quality reporting system, boosting possible bonuses and chopping the size of possible penalties.

This statement is deceptive. HR2 creates the new Merit-based Incentive Payment System. It is anything but simple. It is onerous and oppressive. The Merit-Based Incentive Program will replace EHR Meaningful Use and PQRS penalties. Physicians will instead be given a Composite Performance Score from 0-100, which will be posted publically on The Physician Compare Internet website of CMS. The Secretary will have final say on measures and scoring, so it boils down to who complies with her requirements and implements them to her satisfaction per this rubric:

1.Quality-30%

2.Resource Use 30%

3.Clinical Practice Improvement 15% (new word for maintaining certification (MOC))

4.Meaningful Use EHR 25%

A physician who does not do what the Secretary requires, including completely divulging their private patient medical records, scores a 0 and a horrible public listing. A physician, who perfectly complies with everything the Secretary prescribes, gets a 100 and a great public score on Physician Internet Compare.

Based on their Composite Performance Score, doctors are given what the Secretary determines as their “payment adjustment factor.” It can be positive, 0, or negative. Doctors who do everything the Secretary says can receive up to a 10% bonus. Proponents of the “Doc Fix “ assert that it removes current penalties, but are a “Negative payment adjustment factor” and a humiliating public listing on Physician Internet Compare not penalties?

  1. It eliminates the need for physicians who choose to opt out of Medicare to have to renew their status every two years.

Yes, I do like SEC.106 that allows indefinite, continuing automatic extension of opt out election for physicians who choose to “Opt out” of Medicare, so that we no longer have to re-opt out every 2 years as presently required. Many physicians will be forced to opt out of Medicare on October 1, 2015 when ICD10 is required to even file claims with CMS, and this will be important. (On a related note, as President of TMA, how many Texas physicians are not doing ICD10, and have you evaluated the impact on Texas’ patients when thousands of physicians will be forced out of Medicare and Medicaid because they can no longer file a claim with CMS? Please, let us know the expected public health impact and proposed remedies for this looming phenomenon.)

While the indefinite opt-out of SEC 106 is good, Section 507 is very troubling in this regard under current Administration behavior patterns. SEC.507 (4)(B)(i) gives HHS Secretary Burwell the power to determine whose National Provider Identifier (NPI) is valid. I can easily envision her invalidating NPIs for physicians who will opt out October 1,2015, effectively neutering us, because per this Bill, SEC.507 (4) Section 1860D of the SSA is amended to require a valid NPI on Pharmacy Claims. Thus, those of us who opt out, will see patients directly and prescribe indicated medications only to have the claim denied at point of service to the patient (507(4)(B)(ii), because the Secretary deemed our NPI invalid. She can selectively punish physicians with an opt out status or other selective condition and make it impossible for us to practice our profession, because of changes to the law in this bill. This and other features of the bill present serious potential traps that could result in restraint of trade for physicians

  1. It protects state liability reforms and ensures that the care standards and guidelines in the Affordable Care Act, Medicare, or Medicaid statutes cannot be used to create new causes of legal action against physicians.

This is most certainly necessary if H.R.2 becomes law, because physicans will be lumped in a group called “eligible providers” which includes everyone from a PA, NP, and CRNA to a nurse midwife, clinical psychologist, and registered dietician. A most audacious section is found on page 111 (3): The “HHS Secretary shall develop patient relationship categories and codes that define and distinguish the relationship and responsibility of a physician or applicable practitioner with a patient at the time of furnishing an item or service.” One year after the enactment of the law, the Secretary will post the categories on the CMS website. Category 3 of the five possible government-fabricated patient–physician relationships is billed when a physician or practitioner “furnishes items and services to the patient on a continuing basis during an acute episode of care, but in a supportive rather than a lead role”; this insanity is better suited for the Academy Awards.

After the HHS Secretary literally redefines the patient-physician relationship, she then requires the physician have a valid National Provider Identifier (NPI) to submit a claim for items or services.

In 2018, a claim submitted by a physician or applicable practitioner must include a care episode and patient condition code and classification, a patient relationship code and classification code, AND per (4)(B) page 115, the NPI of the ordering physician or applicable practitioner.

Physicians who attempt to practice under these untested practice models will no doubt need extra legal protection.

And finally, in response to your letter as a whole,

Dear Dr. Held:

The Internet trolls are pumping our U.S. senators full of misstatements, distortions, and outright lies about the bill to repeal Medicare’s Sustainable Growth Rate (SGR) formula. Texas physicians need to step up, now, to counter that barrage of deception.

It’s time for Texas physicians like you and me to respond, to make sure we don’t waste this opportunity to eliminate the SGR. Please contact Sen. Ted Cruz today, and let him know that SGR repeal is vital to Texas medicine. Let Senator Cruz know that Texas physicians expect him to be a leader on SGR repeal.

You might be surprised to know that many of the “internet trolls” you so unprofessionally refer to are actually your colleagues, fellow TMA members, fellow doctors who like you have traversed a rite of passage known only to those of us who have endured what it takes to be called physician, love our patients and profession, and honor the Hippocratic Oath. Many of us are AOA, full clinical professors, physicians and surgeons who take care of thousands of Texas’ patients, sons and fathers, daughters and mothers of American physicians like yourself, who live a life in service of others. Many of us actually read bills before they are passed, and yes, many of us call on our elected representatives to do what we elected them to do, not only “pumping them” with information on the internet but also “barraging them” with our physical presence in their offices in Washington D.C. to share absolute truth.

I write this letter to counter your barrage of deception. Please contact me to discuss the truths and realities of this bill- once you’ve actually read it.

H.R.2 is a call for any physician with a mind, conscience, or regard for the patient, the Hippocratic Oath, and the profession of medicine to contact their Senators to modify H.R.2 or vote no in this form. America’s doctors are being used as pawns if not weapons. If we do not resist, we are to blame.

Sincerely,

Kristin S. Held, M.D.

San Antonio, Texas

Here is the email below. Use the contact info they provide to ask Senator Cruz to Vote NO
Texas Medical Association
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TELL SENATOR CRUZ: TAKE THE LEAD
ON SGR REPEAL
April 8, 2015
Dear Dr. Held:
The Internet trolls are pumping our U.S. senators full of misstatements, distortions, and outright lies about the bill to repeal Medicare’s Sustainable Growth Rate (SGR) formula. Texas physicians need to step up, now, to counter that barrage of deception.
It’s time for Texas physicians like you and me to respond, to make sure we don’t waste this opportunity to eliminate the SGR. Please contact Sen. Ted Cruz today, and let him know that SGR repeal is vital to Texas medicine. Let Senator Cruz know that Texas physicians expect him to be a leader on SGR repeal.
Once the Senate convenes at 2 pm (ET) next Monday, senators will have just 34 hours to take up and pass HR 2, the Medicare Access and CHIP Reauthorization Act, before the 21-percent Medicare cuts kick in for real. At the end of those 34 hours, the Centers for Medicare & Medicaid Services will no longer hold claims for services provided after April 1, and physicians will begin to see the SGR-mandated cut in our Medicare payments.
We’re grateful for the House of Representatives’ overwhelming approval of the bill — authored by Rep. Michael Burgess, MD (R-Lewisville) — and for the support we’ve seen from Senate Majority Whip John Cornyn of Texas. But we need to make sure our other senator, Senator Cruz, hears from Texas physicians why the SGR must go and go now.
Five key FACTS about HR 2:
It repeals the SGR immediately, stopping the 21-percent cut in physicians’ Medicare payments.
It guarantees small, but real, increases in payment rates for the next five years.
It rolls the Physician Quality Reporting System (PQRS), Meaningful Use (MU), and Value-Based Payment Modifier (VBM) into one, simpler quality reporting system, boosting possible bonuses and chopping the size of possible penalties.
It eliminates the need for physicians who choose to opt out of Medicare to have to renew their status every two years.
It protects state liability reforms and ensures that the care standards and guidelines in the Affordable Care Act, Medicare, or Medicaid statutes cannot be used to create new causes of legal action against physicians.
Please contact Senator Cruz today. Ask him to be a leader in support of HR 2. Use these talking points.
Get in touch with him by:
Calling his Capitol office at (202) 224-5922.
Using the TMA Grassroots Hotline to send an urgent email.
Contacting him directly through his own Twitter account or Facebook page.
Sending a personalized #FixMedicareNow tweet directed at Senator Cruz.
I’m counting on your help.

Sincerely,

Austin I. King, MD
President
Texas Medical Association

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Improving the health of All Texans
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4 thoughts on “Response to TMA President Dr. King Regarding His Campaign for H.R.2

  1. So, if I am understanding this correctly, what is going to happen is that yet ANOTHER for profit entity is going to be inserted between the government and the providers, which will actually be paying them? How is this a good use of taxpayer dollars?

  2. HB2 repeal of SGR, passed 4/14/15 as more SGRrr: Sinister Grievous Regulatory and Reporting Requirements. HB2 bleeds US taxpayers in addition to harming Medicare patients and their providers. HB2 transfers millions of Medicare dollars AWAY from patient care onto big powerful central planners, indeed the worst of many nonmedical regulators within the healthcare industry. What a bonanza for Obamacare, the ABMS, American Board of Medical Specialties, the American Board of Internal Medicine (ABIM), and the National Quality Forum (NQF), chaired by the ex-CEO of ABIM Christine Cassel, MD! NQF began in patient safety but morphed into the promotional front for ABIM and ABMS MOC (trademark) test programs against doctors. Millions will be diverted from patient care to feed this Green Monster, the ABMS MOC (trademark) product, of no value but great harm to patient care. We know that NQF had a patient safety guru fined $40 million by Justice in Jan 2014. Dr Chuck Denham had contracts with CareFusion when he promoted its product ChloraSept, 2% chlorhexidine and alcohol, as antiseptic in 2009. He co chaired a powerful patient safety committee and its guidelines for hospitals. Justice considered the $11.6 million Denham received as kickbacks for promoting sales of the product. The ABMS MOC (trademark) was developed earlier, in 1990 to retest and retest, believe it or not, already Board-certified doctor diplomats every 10 years. For hefty fees. ABMS and ABIM revenues for their tax exempt testing agencies rival CareFusion earnings. The controversial, expensive but meaningless ABMS MOC (trademark) test product was lobbied onto the US Congress Committee of Energy and Labor since 6/13/2013, asking repeatedly for incorporation into Medicare payments. ABMS MOC test products have expanded into quality metrics for professional measures. No mention that our universities, accountable specialty societies, Cato and other think tanks, among others could produce better measures with more scientific, medical, and ethical validity at much less cost. After careful influence peddling over the years, without any medical or scientific evidence of value, MOC has been placed strategically into formulas for Medicare payments to Medicare physicians (4/14/2015). The dirty work to steal Medicare funds from doctors for transfer onto the ABMS and ABIM specialty boards will come from within the NQF chaired by the ex CEO of ABIM. Is this COI, conflicts of interest? What is racketeering? NQF won $90 million in contracts, funding for three years, MOC (trademark) programs and vast powers as BIG PORK awarded them within Section 207 of the SGR repeal, HB2. NQF’s bonanza windfall shows that Obamacare, Medicare, and the U S HEALTHCARE INDUSTRY love CORPORATE CRONYISM or crony capitalism as much as some shady businesses, banking, and financial loan institutions. Unless the legislature and CMS stops the Section 207 awards, as elections approach, U S taxpayers and the public must hold legislators who voted for HB2 accountable. After CareFusion issues with its soap products within the NQF in 2009, legislators and leaders of organized medicine should have known better than to permit this transfer of US healthcare funds from Medicare payments onto special interest groups of the healthcare industry.

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