Primary care doctors are continuing to ramp up the pressure on the Centers for Medicare & Medicaid Services over how Medicare's physician payment rates are set. The latest volley is a suit filed by a group of primary care physicians from Georgia claiming CMS and the Department of Health and Human Services are violating federal laws by relying on the American Medical Association/Specialty Society Relative Value Scale Update Committee, better known as RUC.
The six doctors from Georgia suing CMS in the United States District Court for the District of Maryland allege that CMS and HHS are failing to comply with the Federal Advisory Committee Act (FACA), the Administrative Procedure Act (APA), the Patient Protection and Affordable Care Act (PPACA), the Mandamus Act, the Delegation Clause of the United States Constitution and the Due Process Clause of the Fifth Amendment to the United States Constitution.
The doctors are seeking to stop CMS and HHS from using RUC advice in setting the Medicare physician fee schedule and is also asking for declaratory judgments, including that CMS and HHS unlawfully use and rely on RUC in setting the physician fee schedule; that the agencies fail to ensure that their actions are not an abuse of discretion; and that CMS and HHS are violating the Constitution by handing over their authority to set Medicare procedure to RUC.
"The RUC is an independent panel of physicians from all medical specialties, including primary care, who make recommendations to CMS as all citizens have a right to do," said RUC chair, Barbara Levy, MD, in response to the lawsuit. "These volunteers provide physicians' voice and expertise to Medicare decision-makers through their recommendations."
Primary care physicians have long decried what they have seen as a bias toward specialty practices in the RUC, saying that the bias results in lower payment rates for primary care physicians but higher rates for specialties. The American Academy of Family Physicians (AAFP) sent a letter to RUC in June urging more equity in payments for primary care services and better representation of primary care physicians and the addition of external members, such as consumers, on the committee. RUC responded to the AAFP's letter by saying it would review the changes requested.
Congressman Jim McDermott (D-WA), a physician himself, introduced a bill earlier this year that would require CMS to include input from "neutral, third-party analysts." "Over the past 20 years, we have watched the RUC distort Medicare's, and therefore the whole country's, physician-payment system," McDermott said in a statement in response to the Georgia doctors' lawsuit. "When Congress changed Medicare's physician-payment system in 1992, it wanted to put primary care on an equal footing with specialty care – not only to improve the quality of care, but also to bring down our crushing national healthcare costs. Regrettably, because CMS relies so heavily on the specialist-driven RUC, the opposite has taken place."
"CMS must do its rate-setting job in the public interest and not in the interest of powerful physician specialties – more transparency and fairness would be good for the health of Americans as well as our federal budget," he continued. "It is for this reason that I support all efforts – whether legislative or judicial – to restore fairness in physician payments and rebalance the physician workforce in the United States."
CMS' media relations director, Brian Cook, said the agency can't comment on pending litigation, but an anonymous former CMS official told the Center for Public Integrity's iWatch News that CMS relies on RUC because it does not have the financial resources to replace the free services it gets from RUC.