May 2, 2016
Dear Physician Colleagues,
That we convened on a Sunday night is evidence of the severe and urgent nature of our current plight in medicine. The care of our patients has been absconded by the Executive Branch of our federal government with a wink, nod, and nudge from Congress and the Court.
I am pleased that this group of us divided up the task of reading the MACRA proposed rules by May 1. Thus far, I have read the preamble and my assigned pages, 400-500. On our conference call last night, those of who read the rules were universally aghast. The suggestion was made to go forward with the assertion that these rules are unconstitutional violating many amendments particularly 4, 5 and 9, and no doubt others. There is much we need to discuss further. We must take action now. I will do my best to highlight my notes and share expediently. The expansion of law that is occurring in this rulebook is vast. Executive overreach is an understatement. It is clear there must be massive resistance to this. There must be unprecedented comments from physicians. We must educate patients and physicians about what is going on ASAP. We must immediately seek legislation that exempts small practices from this- maybe starting with practices of 10 or less physicians.
The part I read deals with the QCDR’s (Qualified Clinical Data Registries) and APMs (Alternative Payment Models).
The CMS rule-writers expand the capabilities of QCDR’s from reporting on measures in the quality performance category to also include the categories of advancing care information (formerly known as MU-EHR before the “rebranding of key terminology”) and CPIA (Clinical practice improvement activities-MOC…). They already have full access to resource utilization, and this information is already being reported on the CMS Physician Compare Website-even though it is confusing and misleading to patients for many specialties. The CMS rule makers justify expanding capabilities and control via new laws saying: “we believe it would be less burdensome for MIPS Eligible Clinicians if we expand…” Brutal is that QCDR entities must list non-MIPS measures and their data elements on their websites unless it is a MIPS measure, in which case it will be posted by CMS on the public CMS website.
And further, on page 400- “Submit to us data on measures, activities, and objectives for ALL patients, not just Medicare patients.” How can they do this???
On page 403- the QCDR’s must “be able to separate out and report on ALL PAYERS including Medicare Part B FFS patients AND NON-MEDICARE patients.” How can they just start data collecting on everyone????
Many new categories of third party intermediaries (a QCDR, health IT vendor, qualified registry, or CMS-approved survey vendor) are created such as “Health IT Vendors” on page 408. On page 410 they “propose at statute 414.1400(a)(2) to expand health IT vendors capabilities to submit data” on measures from Quality, CPIA, and Advancing Care information categories and submit to CMS directly from clinicians’ EHRs.
On 411 they define a qualified registry at 414.1305 as a medical registry, a maintenance of certification program operated by a specialty body of the ABMS or other data intermediary…
I bet ABMS and specialty societies stand to make some $$$.
CMS will do randomized audits for data validation by comparing submitted data to actual patient record data.
The qualified registries must “Submit data to us, quality measures and activities data on ALL Patients, not just Medicare patients” (page 416).
The third party intermediaries must retain all data submitted to CMS for MIPS for a minimum of 10 years.
As far as APM’s, they must: 1.take on significant financial risk, 2. be accountable for performance based on meaningful quality metrics, and 3. use certified EHR technology.
A “policy principle” is that an APM must support multi-payer models and participate in innovative models in Medicaid AND commercial markets “in order to promote high quality and efficient care across the health care market.” They pursue the all-payer route to the APM incentive Payment.
Interestingly- “We believe the process for determining whether an eligible clinician receives the APM Incentive Payment should focus on the relative degree of Participation by eligible clinicians in Advanced APMs, not on their Performance within the APM. The Quality Payment Program does not alter how each particular APM measures and rewards success within its design. Rather, it rewards a substantial degree of Participation in certain APMs.”
Page 445- Beginning 2021 (based on 2019 calendar year data) there is an option for eligible clinicians to become Qualified Providers through a COMBINATION of APMS and OTHER payers (other payer Advanced APMs). The combination of all-payer and Medicare payment threshold option is referred to as “The ALL-PAYER Combination Option.” This mess will then include “State Medicaid Programs and commercial payers”- Note this is for calendar year 2019 data-just 2.5 years away.
Is this not huge Executive brand overreach to effectively take over payment models for states and private commercial payers? On what grounds can they do this? Throughout the law they justify their expansion of law and creation of new law as measures to streamline, reduce burden, and add consistency/ universality…
They want to be able to get everyone’s data from all sources with their own “certified” IT and data sets/ risk adjusted data…
Page 457: individual eligible clinicians’ NPIs are reassigned to all TINs to which he or she has “Reassigned the right to receive Medicare payment.
Page 459: All-Payer Combination option identified for QP determination 2021(2019 data).
Again on p. 461. Policy principle- QP determination process assesses relative degree of PARTICIPATION of the Advanced APM Entity and Eligible Clinician in Advanced APM’s-not their performance success as assessed under the Advanced APM.
The rest mostly focuses on risk taking requirements and how to punish APMs for not meeting risk requirements and measures to force them to implement and comply.
NQF and Innovation center have power to endorse quality measures.
Page 476- financial risk criterion is applied to the ALL-PAYER COMBINATION OPTION in 2021- so, CMS has expanded from all this MACRA mess applying to Medicare ONLY to all this applying to EVERY PAYER- Commercial and States’ Medicaid Programs.
They say it makes everything easier for stakeholders.
If actual expenditures exceed expected expenditures during a performance period, CMS can: 1.withhold payments to APM Entities, 2.Reduce Payment rates to APM entity and/or the APM Entity’s eligible clinicians or 3. Require APM entity to owe payments to CMS.
This statement on p. 486 is chillingly telling: “…it is anticipated that the amount of risk would motivate the desired changes in care patterns in order to reduce costs and improve quality.” “…nominal risk clearly is an amount “substantial enough” to drive performance.” They apply these same risk standards to Other Payer Advanced APM’s too- That’s ALL-PAYER. Beyond stunning is that CMS admits crafting, expanding, and writing new law to create increasing risk for doctors, and all health care entities for that matter, to serve their purpose in their own words- “to motivate desired changes in care patterns” and “drive performance.” Is this within Executive branch agency power? Imagine if IRS or other agencies adopt this working philosophy.
The risk models are over my head. Complex and best left for someone else’s input. I can tell you, however, it doesn’t favor the best interests of the patients or those who care for the patients.
Page 497 proposes Full Capitation Risk arrangements that involve full risk for the population of the beneficiaries.
There is a global budget for all items and services to a population of beneficiaries during a fixed time period.
Finally, the Secretary expands the Medical Home Model and tries to expand this model to ALL PAYERS as well.
A takeover of All payers by CMS
Complete takeover of our patients medical records by government and its chosen intermediaries pursuing universality and full range of access in and out, as well as public posting.
Our own specialty groups via ABIM, NQF, and so on are in on this.
Government will pay those who practice according to CMS rubrics or make us pay excessively if we don’t treat patients according to their #’s and measures of quality, clinical practice improvement activities (including MOC), completely controlled EHR, and resource use.
It’s about participation, not performance.
Scoring us determines paying or penalizing us based on how well we follow their rubric- via a CPS-Composite Performance Score
Can’t pay individual clinician anymore via APM’s- Can only pay APM entity and only via Capitated, risk bearing agreements.
And now clinicians are effectively risk bearers like commercial insurance companies-except that we do the work-if they let us.
CMS is making rules and penalties so harsh as to “motivate changes in care patterns” and “drive performance.”
This is all insane, criminal, and violates the Constitution. It violates the Hippocratic Oath and will prove harmful to patients and the practice of medicine. We must stop this. I have opted out of Medicare and all commercial insurance agreements and urge everyone to do the same. Only this definitive course action on a broad scale will make a difference. If we did this on a massive scale the problem would be solved within the 3-month notification period to those with whom we are severing our agreements. Our action must be bold and unwavering. This risk we must take- not the risks imposed on us in this losing rule proposal.
I look forward to reading the assessments of the other readers and, more importantly, to our next course of action.
I appreciate the wisdom, experience, and expertise of each one in this group. I will help in any way I can. I await my next assignment.