Daily Dissent 7 to CMS proposed MACRA rule

Monday, May 30, 2016

Dear Mr. Slavitt, Acting Administrator CMS,

As I await CMS posting my prior six dissents to the proposed MACRA rule, I submit this seventh dissent.

Page 398/625 (414.1340 Data completeness for the quality performance category.) states: “(a) MIPS eligible clinicians and groups submitting quality measures data using QDCR, qualified registry, or EHR submission mechanism must submit data on at least 90 percent of the MIPS eligible clinician or group’s patients that meet the measure’s denominator criteria, regardless of payer.”

Translation: Government will give doctors (and all healthcare providers) a grade called a Composite performance score (CPS). The grade will be used to pay doctors. The grade will be posted on a public website to humiliate doctors who won’t comply with government. The grade will be based on performance in 4 categories. A huge component of the grade is the Quality Performance Category. To qualify for government payment under this grading system, a physician must report data to CMS, a government agency in charge of Medicare and Medicaid, on 90% of ALL their patients including commercially insured, self pay, uninsured, charity… not just Medicare patients.

MACRA was written and passed as a fix for the unsustainable Sustainable Growth Rate Factor as it applied to Medicare payments. By what authority, does CMS (Center for Medicare and Medicaid Services) justify data collection of 90% of an individual physician’s or their group’s patients “regardless of payer?”

On what authority does, CMS, a government agency under the Department of Health and Human Services, rationalize data collection of all patients in the United States? Who gives you the right to private medical data from all patients’ charts “regardless of payer?” You have no such right or authority.

The contents of a patient’s medical record are confidential and constitute “protected health information” to which you have no right. This rule expands CMS authority over Medicare and Medicaid patients to include authority over all patients regardless of payer- including commercial or even self-paid. You have no right to this protected health data, much less to coerce physicians through your perverse Merit Based Incentive Payment System (MIPS) to turn this information over to you. That this rule proposes this is abominable.

By linking physician pay to reporting data on ALL patients, you confiscate the payment systems of all patients and effectively create a government run, socialized system of medicine. This is not the stated intent of the ACA or MACRA. Your rule changes the intent and scope of law. The rule increase your scope of power.

The ACA mandates purchase of qualified healthcare plans by all Americans. Then MACRA, as expanded by this proposed rule, incentivizes physicians, and all Merit Based Incentive Plan System eligible clinicians (which you define as the following: a physician, a practitioner per 1842(b)(18)(C) of the ACT, a physical or occupational therapist or a qualified speech-language pathologist, and a qualified audiologist) to give CMS access to their patients’ data in order to receive a better Composite Performance Score and thus a positive adjustment factor to what government pays out.

Eligible clinicians with the highest Composite Performance Scores receive up to a 10% incentive payment for reporting private patient data to CMS, a federal government agency. Is this bribery? How little you must think of a physician’s code of ethics, adherence to the Hippocratic oath, and commitment to the patient-physician relationship.

Those of us who refuse to disclose medical data to CMS on 90% of our patients will receive a 0 in the Quality performance Category of the Composite Performance Score by which you grade us. The non-reporters will receive a negative payment adjustment factor and get a 9% decrease in pay. This scoring mechanism constitutes punishment of our nation’s physicians by your agency for not reporting their patients’ confidential medical data to you. Or is this extortion of the very people who have devoted their lives to care for others by unauthorized, overreach of your agency? How seriously you must want to get rid of us.

Just think, eligible clinicians who comply with your data collection and reporting will be paid 19% more than those who do not comply. The compounded effects of this system applied annually are profound. Those who will not betray the patient will soon be out of business. Is this your strategy?

Under 1848(q)(5)(F), CMS claims authority to reweight performance category weights. So while, the Quality Performance Category may be weighted at 30% now and 50% in 2019, if CMS desires, it can  change the weighting system to inflate the weight of this category to 100% of the Composite Performance Score. If so, CMS will pay physicians who report data to government on 90% of ALL of their patients 19% more than those who don’t report- who will then be forced out of business- and you will be left with a select group of physicians to care for the American patient- those who will do government bidding, whatever it may be, in order to be paid. From here, the fundamental transformation of the practice of medicine in the US will be complete.

MACRA and its proposed rule must go. The American people do not support a perverse system that pays its doctors to report their most sacred data to CMS. The people do not support a system that pays doctors to do CMS biding and puts them out of business if they don’t. The people do not support a rule whereby CMS (Medicare and Medicaid) suddenly anoints itself czar and empowers itself to collect all data on ALL patients regardless of payer. No, this must go. Your agency should be sanctioned for proposing it.


Kris Held, M.D.






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