Thursday, May 26, 2016
Dear Mr. Slavitt Acting CMS Administrator,
I dissent to the MACRA rule; it changes intent of the law, increases the scope and power of CMS, transfers power over taxpayer money and private patient data to CMS, and violates the 4th Amendment and individual rights.
1.CMS is using the rule to expand its scope of power, applying the rule to ALL patients not just Medicare beneficiaries and to all insurers (including commercial) not just Medicare. The All-Payer Combination Option includes Medicare, Medicaid, commercial payers, and Medicare Advantage. The rule constitutes the codification of government run, single payer, socialized medicine, thus completing the fundamental transformation of the USA, which was not the intent of MACRA’s sponsor.
2.The rule “Rebrands key terminology”, classifying everyone from a physician to psychologist and dietician to speech pathologist as ECs (Eligible Clinicians) or EPs (Eligible Providers) making virtually anyone who contacts a patient subject to the rule.
3.The rule changes the scope of to whom MACRA applies. It would apply not only to Medicare patients but to ALL patients. It applies MACRA not only to CMS (the Medicare Payer) but to ALL payers-commercial, Medicaid, and Medicare Advantage. MACRA collects “MIPS” data on patients in order to grade, reward or penalize doctors; the rule allows data collection of non-MIPS data by CMS too.
4.The rule sets up MIPS (Merit Based Incentive System) and APMs (Alternative Payment Models), incentivizing physicians to report patients’ protected health information to CMS. Physicians and all EPs are then graded and either paid or penalized based on a “Composite Performance Score.” The rule applies this system to other payers via the ALL-Payer Option by 2021, based on 2019 data, just 2.5 years away.
5.The rule authorizes intermediary entities to collect data and compile data registries for which they must keep identifiable, even protected health information, on file for 10 years-should CMS want a targeted audit. If the targeted audit comes in year 10, the intermediary must keep the data for 10 more; that’s 20 years of patients’ data collected and stored for CMS and anyone who demands access. For special cases, CMS can request data for longer. The potential for problems here is huge. CMS can come into our offices and do targeted audits whenever desired.
6.As far as Quality Measures and Clinical Improvement activities, data intermediaries can collect up to 30 additional “non-MIPS” measures each (which means they can collect whatever data they or CMS wants to collect on patients-even though not MIPS approved). Then they must grant CMS access to non-MIPS measures AND post them on their websites.
7.Clinical practice improvement activities reward physicians/EPs for compiling registries of patients with, for example, mental health and behavioral problems, doing depression screening, and so on. CMS has access to this data. Potential for misuse of the data is mind-boggling.
8.The OCR (Office of Civil Rights) OK’d physicians to give ONC (Office of National Coordinator of Health IT) intermediaries called ONC-ACBs access to patients’ PHI (Protected Health Information) without the patients’ knowledge or authorization . PHI includes individually identifiable private medical data, demographics, physical and mental data, past, present, and future including diagnosis, medications, treatment and more. ONC-ACBs can do onsite surveillance to prove EP’s are providing interoperable, bidirectional, unblocked access to data “at all relevant times”, AKA whenever CMS wants it.
9.Advancing Care information is still Meaningful-use EHR, just “rebranded”, and you misled us saying it was going away. The MU-EHR incentive program started in 2011; your MACRA rule will expand it and increase its impact exponentially. You will publicly display an indictor to identify high performers and seek comment to indicate low performance. Those who refuse to betray our patients and violate the patient-physician relationship will get 0’s and public humiliation on the CMS website. This is oppressive if not abusive.
10.Composite Performance Score (CPS) -CMS has power to adjust the value of each of the four performance categories used in the rubric to calculate each physician’s/EPs CPS, so if wanted, CMS could grade and pay physicians according to your desired data collection/reporting preference; for example, who has the lowest resource use and reports the most data, disregarding Quality and Clinical Practice Improvement Activities altogether. Thus, you can put those of us who won’t comply out of business and reward those who you effectively bribe (extort) to do your bidding, building your army of minions.
11.The Pay to report/ Comply or die strategy is sick. Most physicians will not do what you ask, because we serve our patients. They’re smart; they know this. We trust one another and communicate, privately. The comment in the rules that only selected measures will be openly posted on Physician Compare, because “providing too much information can overwhelm consumers and lead to poor decision making,” proves that you and your agency staffers who wrote this rule think we, the American people, are stupid. We are not.
12.Your collaborating entities-OCR, ONC, TEP, PTAC, PFPM, Innovation Center, NQF, and every other Executive Branch Department and agency are to be feared, as they are your weapons as you assault the lives and liberty of the people. Your rule enables you to work with them against us. But we will not break.
The MACRA proposed rule bastardizes MACRA and must not stand. As bad as MACRA is and was from inception, this rule makes it worse. I would love to discuss alternatives with you.
Kris Held, M.D.