MedPAC is Right That MIPS is Wrong- The Patient is Best Served by Merit-Based Incentive Payment System Repeal

*Accepted for publication in the Journal of American Physicians and Surgeons

The Medicare Payment Advisory Commission (MedPAC) is an independent congressional agency established by the Balanced Budget Act of 1997, whose members are appointed by the Comptroller General, which is required by law to review Medicare payment policies and to make recommendations to Congress.[i] At its January 2018 meeting, MedPAC voted 14 to 2 to repeal the Merit-based Incentive Payment System (MIPS),[ii] which was created in the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). [iii]

 

 

MACRA repealed the sustainable growth rate (SGR), established statutory payment update rates, created an incentive for advanced alternative payment model (A-APM) participation, and created MIPS[iv]– a government program for grading individual physicians with a composite performance score between 0 and 100, and then either penalizing or rewarding that physician with a negative or positive payment adjustment based on his or her score. The composite performance score (CPS) is determined by the sum of each individual provider’s weighted grades in four performance categories as set forth by a complex, untested, and flawed federal government rubric. The CPS is then posted on the Centers for Medicare and Medicaid Services (CMS) physician compare public website.

 

MACRA also expanded the definition of physician by creating the term MIPS Eligible Clinicians and utilizing the term Eligible Professional; thus, the law and its Merit-based Incentive Payment System apply not only to physicians, but to physician assistants, nurse practitioners, clinical nurse specialists, certified registered nurse anesthetists, clinical psychologists, nurse midwifes, physical therapists, occupational therapists, audiologists, speech pathologists, clinical social workers, dieticians and nutritional specialists, and so on, as well.[v] In the MACRA rule-making process, the Center for Medicare and Medicaid Services (CMS) granted itself immense power and expanded its authority, including the potential “to expand the definition of MIPS eligible clinician to include additional eligible clinicians through rulemaking in the future.”[vi] In other words, the federal government could subject anyone and everyone to their social engineering scheme.

 

Social engineering report cards of this sort have been seen in recent years in China, for example, as a way to harness big data and score its people on their behavior. China’s personal social credit score was recently tested on 89 million Communist Party members on their performance in 136 performance categories. Those with good behavior according to the collected data will be rewarded while those who fall short of the Party’s expectations will be denied basic freedoms like loans or travel.[vii]

 

MACRA, via its ensuing rule, rebranded key terminology[viii] to make it appear more palatable and vastly expanded the federal government’s control over patient care and the patient-physician relationship. The stated goal is to drive physician behavior. Government seeks to move physicians away from a fee-for-service payment model, and to instead drive physicians to alternative payment models (APMs) they claim reward what government perceives as value-based care and require providers to assume significant financial risk. The federal government calls their healthcare version of a U.S. social engineering plan the Quality Payment Program (QPP).  Lawmakers believe they can drive physician behavior by incentivizing or penalizing physicians monetarily and psychologically via threat of public shaming on the CMS Physician Compare website, where each “eligible professional’s” government compliance score is posted for all to see.

 

Fortunately, MedPAC ultimately concluded that MIPS cannot succeed. In MedPAC’s own words:  MIPS replicates flaws of prior value-based purchasing programs. MIPS is burdensome and complex. MIPS is costly and wasteful having cost providers $1 Billion in the first year alone just to comply. The reported information is not meaningful. The payment adjustments will be large and arbitrary in later years, and it will not help patients choose clinicians or clinicians improve value.[ix]

 

MIPS does not promote, create, or reward value. In fact, it may do quite the opposite. A 2017 article in The Annals of Internal Medicine reports that pay-for-performance programs such as the Value-Based Payment Modifier, a predecessor to MIPS, implemented by the Centers for Medicare and Medicaid Services, may actually contribute to healthcare disparities without improving performance.[x] The article concluded that physicians were incentivized to care for lower-risk patients and penalized for serving higher-risk patients. In other words, money was inadvertently shifted away from physicians who treat poorer and sicker patient populations to fund bonuses for physicians treating more affluent, healthier populations.

 

That MedPAC recommends repealing MIPS is encouraging, but then, MedPAC arbitrarily concocts something to replace MIPS, called the Voluntary Value Program (VVP). The MedPAC commissioners propose to withhold a percentage of all fee schedule payments unless the physician abandons fee for service and joins an APM or “voluntary group” to be assessed at a group level.  Much of the discussion in the transcript of the recent MedPAC meeting revolved around how big the withhold penalty needs to be to force physicians to join advanced alternative payment models, which include an array of Accountable Care Organizations, (ACOs). ACOs are essentially reincarnations of the reviled HMO’s of the 80’s, and 90’s. If MIPS is repealed, MedPAC recommends a 2% across the board withholding from payments to providers, but MedPAC Commissioners discussed withholding everything from 0.5% to 10%.[xi]

 

This leads us from the struggle for the soul of healthcare to the frontlines of the battle for America’s soul. Who determines and what constitutes value-based medicine? What physician behaviors deserve a high score and high pay, and what behaviors warrant a low score, low pay, and public humiliation? As my dear friend and physician colleague, C.L. Gray, M.D. astutely reminds us, the struggle for the soul of healthcare began with Plato, the ancient Greek philosopher who urged that doctors refrain from curing the weak and infirm to improve society, vs. his contemporary, Hippocrates, who felt physicians worked on behalf of the patient, not the good of the state.[xii] This begs the question, whom do we serve, the patient or the state?

 

One of the four MIPS performance categories in which physicians are scored is rebranded in the MACRA Rule as Advancing Care Information (ACI), formerly known as meaningful use electronic health record technology (MUEHRT) or certified electronic health record technology (CEHRT). This category is especially disconcerting, as it requires physicians to fully disclose all of our patients’ medical information to government data auditing agencies for surveillance or direct review, including the patients’ protected health information (PHI). PHI includes individually identifiable information including all demographics, all medical history past, present, and future, all medications ever taken, and even genetic information. If the physician does not do this, he or she will receive a score of 0 in the ACI performance category. The MACRA law makes data blocking illegal and demands bidirectional, unfettered access by outside government-created or approved entities to clinicians’ electronic health records- for all patients, not just Medicare patients, for all data, not just MIPS data, and from all insurers, including commercial insurers, not just Medicare. The federal government wants to collect, audit, assess, and sell the patient data and wants to be able to input government treatment guidelines, templates, restrictions, and controls. In effect, the federal government wants to dictate the medical care of the American people. The federal government, through the Office of Civil Rights of the Department of Health and Human Services (HHS), via the Office of the National Coordinator of Health Information Technology, specifically granted itself access to our once sacred, private medical records.

 

 

A most dangerous part of the MACRA rule is that the ONC (Office of National Coordinator for HIT) and its ONC-ACB’s (ONC-Authorized Certification Bodies) are granted direct unrestricted access to all individually identifiable protected health information without patients’ authorization under any circumstance. [xiii] MACRA instructs the Secretary of HHS to create 3rd party intermediaries to collect the data and 4th party entities to audit it, potentially including unblocked surveillance on demand and even onsite auditing. [xiv] Further, MACRA requires the data collectors to keep all the data for a minimum of 10 years, if not eternity if government so says.[xv] In this light, engaging with CEHRT may be a violation of our professional code of ethics at best, if not a violation of the 4th Amendment. As such, our ethical duty as Hippocratic physicians is to keep our patients’ data from government, not transmit it to government. We must ask ourselves again, whom do we serve, the patient or the state?

 

In 2016, after reading MACRA and the proposed MACRA rule and submitting comments, this author personally met with Acting Administrator of CMS, Andy Slavitt, and a group of high ranking CMS officials at CMS headquarters in DC to personally convey concerns about such intrusive, self-granted government data collecting practices. A distinction was ultimately made in the final rule allowing voluntary on-going data surveillance, but ONC direct review of Certified EHR data remains mandatory. This highlights the critical importance of U.S citizens reading word for word not only bills before and after they become laws, but to read and comment on proposed rules, and then read the final rules once they are published. If we do not do this, we will continue to fail to secure our blessings of liberty as instructed in the Preamble to The Constitution of The United States of America.

 

In recent months and years, we have become privy to abuses of data collection and surveillance of American citizens by federal agencies, the likes of the FBI, CIA, NSA, and IRS as well as the Department of Justice and Department of Defense. Why are we to presume federal agencies within the Department of HHS, such as the Office of the National Coordinator, the CDC, and CMS, will behave any better? And, might our most intimate medical, physical, psychological, and even genetic information be even more vulnerable to EHR-related injury and death, foul play, and public control than our phone conversations, emails, texts, and finances? If they can lose five months of texts and thousands of emails, can they also lose our vital medical information? There is no limit to the potential consequences of such government healthcare malfeasance, should our protected health information remain subject to unblocked, bidirectional, manipulation by soul-less government agents. The risk to our medical data is not only subject to national forces, but international as well. The politicization and weaponization of our very lives is at bay.  The very soul of America is at stake.

 

Will Congress heed MedPAC’s advice and repeal MIPS? For that matter, will our elected officials honor their word and repeal the Affordable Care Act, root and branch? Or, is the allure of $1.3 trillion per year spent on “healthcare” and the power over each individual American’s life just too hard to resist?

 

 

Tragically, as if penned by Shakespeare himself, MACRA, replete with its MIPS and Advancing Care Information performance category, was sponsored by a physician colleague and fellow Texan and passed with broad bipartisan support. Will egos, money from special interests, political pressures, and irrational excuses like, “we’ve invested so much on this, we have to go forward,” rue the day, or will Congress, led by MACRA sponsor Congressman Burgess himself, step up, admit it was a mistake, and repeal MIPS, and all of MACRA for that matter. In other words, will Congress use some common sense, cut our losses, and do the right thing?

 

The scoring of individual citizens by use of massive government data collection funneled into a complex government grading rubric in order to reward or penalize them monetarily based on the score and to pressure them psychologically by subjecting them to public humiliation by posting the scores on a public website for the stated purpose of driving behavior is something Americans would never dream is part of U.S. federal law. Yet, this social engineering scheme is precisely what is contained in MACRA, and the system is the Merit-Based Incentive Payment System, affably called MIPS. The confiscation, surveillance, and potential manipulation of our medical data as codified by MACRA’s MIPS violates the Constitutional rights of US citizens and places us in harms way. We are heading toward a totalitarian state in short order unless we stand up and fight for our freedoms and liberties. I call on my physician colleagues, with Congressman Burgess, MD, leading the charge, to follow MedPAC’s advice and make MIPS repeal a reality. Through the MACRA rule-making process it became apparent that this law could be too easily and too vastly contorted beyond the sponsors’ intent. Congressman Burgess must ask himself as a physician, whom does MACRA serve, the patient or the state? If he answers honestly, he must next courageously draft the repeal legislation for not just MIPS, but MACRA itself.

 

[i] Medicare Payment Advisory Commission. USAGov. https://www.usa.gov/federal-agencies/medicare-payment-advisory-commission. Accessed February 18, 2018.

 

[ii] http://www.medpac.gov/docs/default-source/default-document-library/jan-2018-meeting-transcript.pdf?sfvrsn=0+Page+113-+172.

 

 

[iii] Burgess M. Text – H.R.2 – 114th Congress (2015-2016): Medicare Access and CHIP Reauthorization Act of 2015. Congress.gov. https://www.congress.gov/bill/114th-congress/house-bill/2/text. Published April 16, 2015. Accessed February 18, 2018.

 

[iv] http://www.medpac.gov/docs/default-source/default-document-library/jan-2018-phys-mips-public.pdf?sfvrsn=0.

[v] The Federal Register Proposed Rule Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models A Proposed Rule by the Centers for Medicare and Medicaid Services on 05/09/2016 E.1.a. page 39-40/625.

[vi] Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models. Federal Register. https://www.federalregister.gov/documents/2016/05/09/2016-10032/medicare-program-merit-based-incentive-payment-system-mips-and-alternative-payment-model-apm. Published May 9, 2016. Accessed February 18, 2018. Page 40/625

[vii] Denyer S. China’s plan to organize its society relies on ‘big data’ to rate everyone. The Washington Post. https://www.washingtonpost.com/world/asia_pacific/chinas-plan-to-organize-its-whole-society-around-big-data-a-rating-for-everyone/2016/10/20/1cd0dd9c-9516-11e6-ae9d-0030ac1899cd_story.html. Published October 22, 2016. Accessed February 18, 2018.

[viii]Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models A Rule by the Centers for Medicare and Medicaid Services on 11/01/2016.

[ix] MedPAC Public Meetings, Past Meetings January 11-12, 2018 View Agenda, Briefs, and Presentations, View Transcript  Presentation  Kate Bloniarz, Ariel Winter, and David Glass January 11, 2018, Assessing payment and updating payments: Physician and other health professional services; and Moving beyond the Merit-Based Incetive Payment System (MIPS) Slide 5

[x] Mendelson A, Kondo K, Damberg C, et al. The Effects `qazof Pay-For-Performance Programs on Health, Health Care Use, and Processes of Care: AA Systematic Review. Annals of Inernal Medicine. 2017;166(5):341-353.

[xi] MedPAC Public Meetings, Past Meetings January 11-12, 2018 View Transcript. Pages 113-172.

[xii] Gray CL. Healthcare, The Culture War, and the Future of Freedom. In: The Battle for America’s Soul. Hickory, NC: Eventide Publishing; 2011:27-45.

[xiii]Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models. Federal Register. https://www.federalregister.gov/documents/2016/05/09/2016-10032/medicare-program-merit-based-incentive-payment-system-mips-and-alternative-payment-model-apm. Published May 9, 2016. Accessed February 19, 2018. Page35/625

[xiv]Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models A Rule by the Centers for Medicare and Medicaid Services on 11/01/2016.

[xv] Medicare Program; Merit-Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) Incentive Under the Physician Fee Schedule, and Criteria for Physician-Focused Payment Models. Federal Register. https://www.federalregister.gov/documents/2016/05/09/2016-10032/medicare-program-merit-based-incentive-payment-system-mips-and-alternative-payment-model-apm.  Page 242/625. Published May 9, 2016. Accessed February 19, 2018.