ACC sues HHS over 2010 Medicare payment rates

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The American College of Cardiology (ACC) has filed a complaint against the Department of Health and Human Services (HHS) Secretary Kathleen Sebelius in U.S. District Court, alleging that Sebelius, in her capacity as the HHS secretary, unlawfully adopted the payment rates for cardiology services in the 2010 Medicare Physician Fee Schedule (MPFS) by using an invalid Physician Practice Information Survey (PPIS) in a manner that “threatens access to care for patients and…increases medical care costs.”

The complaint alleges that Sebelius and the Centers for Medicare & Medicaid Services (CMS) abused their discretion and acted in violation of the Medicare statute and the Administrative Procedures Act by using the invalid PPIS in adopting the payment rates for cardiology services in the MPFS.

According to the complaint, defects exist with respect to the methodology and data used to develop the PPIS, which was used to justify the cuts to Medicare reimbursement rates for cardiology, and which undermine the viability of community practices. These include, according to the college, CMS’ decision to use information from only 55 cardiologists to set reimbursement under Medicare for all of the cardiologists in the U.S., when the results from that group were different from other available information.

The ACC said it filed the lawsuit on Dec. 29, 2009, “with the hope of enjoining the implementation of the MPFS for cardiology based on this flawed survey data, and to require CMS to use more reliable, available data or conduct a new survey to determine a new 2010 MPFS for cardiology services performed consistent with the law.”

“The process by which Medicare determined the reimbursement rates was deeply flawed. As a result, the 2010 rule will levy cuts to cardiologist services by up to 40 percent,” said Jack Lewin, MD, CEO of the ACC. “The ACC is committed to stopping these cuts and reversing the 2010 rule. Over the past decade, there has been a 30 percent reduction in death and disability related to cardiovascular disease. These cuts will significantly roll back these gains. We still remain hopeful that President [Barack] Obama, Congress or Secretary Sebelius will step forward to halt this rule.”

The complaint alleges that the number of PPIS responses used to determine the MPFS rule was too small to be representative and that the survey results were not in compliance with the federal regulations which govern precision standards, transparency and review.

The complaint also alleges that the consultant group hired by HHS to analyze comments on the proposed rule noted to HHS that the PPIS data used to determine the MPFS cuts were counter to all other recognized cost measures. According to the complaint, the consultant group concluded that supplemental survey data provided by specialty physician groups, such as the ACC, was more representative of the true cardiology practice than the PPIS data used to determine the MPFS rule.

The complaint was filed in the U.S. District Court for the Southern District of Florida. Co-plaintiffs include the ACC Florida Chapter; the American Society of Nuclear Cardiology; the Association of Black Cardiologists; and the Cardiology Advocacy Alliance.