AAPS Comments on Proposed 2019 Medicare Physician Payment Rule


Submitted September 10, 2018

Comments on CMS-1693-P: Revisions to Payment Policies under the Medicare Physician Fee Schedule, Quality Payment Program and Other Revisions to Part B for CY 2019″

Dear Administrator Verma,

We appreciate this opportunity to comment on the Medicare physician payment rules for 2019 as proposed in CMS-1693-P.

The Association of American Physicians & Surgeons (“AAPS”) is a non-profit membership organization of physicians and surgeons who are mostly in small, independent practices. Founded in 1943 (and celebrating our 75th year), AAPS defends and promotes the practice of private, ethical medicine. AAPS has members in virtually every specialty and State, and AAPS speaks out frequently about issues concerning patients and medical practice.

Reducing paperwork burden is greatly needed, but this relief should not be tied to more stringent price controls and new misguided value measures that further impede competition and will serve to ration care. We ask that CMS rethink the implementation of blended rates that flatten payments and threaten to degrade patient access to physician services.

We agree that it is time for the Evaluation and Management (E/M) documentation guidelines, developed by the AMA in conjunction with CMS (then HCFA), to go. Physicians rebelled over the 1997 version of the guidelines. To quiet the discontent, the AMA held a special fly-in meeting in Chicago and ultimately physicians were allowed to continue using the marginally less-problematic, but still flawed, 1995 guidelines. The only purpose of these onerous bureaucratic “bullet points” is to enforce price controls. They detract from the value of the physician’s progress note with irrelevancies, redundancies, and distraction from the needs of the patient. Many of the recorded bullet points may be simply cut-and-pasted or entered mechanically by clerical personnel. There is no way of verifying their accuracy, and clinicians place little confidence in them.

CMS is proposing to use time spent with the patient as a surrogate measure of “complexity” and value. This is enforceable in an objective way because the number of hours in the day is limited. However, it is not a good measure of value. Inefficient doctors may spend more time.

It has proved to be impossible to define quality or value of a medical service. Medicine is not an assembly-line process with controlled input and objectively measurable output. Attempts to control expenditures through price controls have a dismal record of failure, leading to system gaming and misallocation of resources. The only just price is the one agreed to by buyer and seller of a service or product. We need honest price signals, with fees determined by physicians and their patients. If fees are too high, patients will seek another source of care. The role of CMS is only to decide what to reimburse. Balance billing is essential to allow supply and demand to equilibrate, to discourage overutilization of services patients do not value, and to allow clinicians to focus on serving patients instead of trying to justify their bills to remote bureaucrats.

A good beginning for CMS is to remove price controls on unassigned claims, reimburse the PATIENT a predictable amount on the basis of an itemized bill (as in a “brief” or “extended” office visit). Patients would have the option, for example, of paying more out-of-pocket for one visit that dealt with all their problems instead of multiple rushed “one complaint per customer” visits needed to meet office overhead. Fraud would be self-identifying like credit-card fraud, if the reimbursement went to the patient instead of to a “provider” that generated a massive volume of claims. Since most physicians are currently “participating” (contracted to take assignment on all claims), CMS would have the opportunity to test the idea on an initially small group.

In short, patients deserve greater flexibility to determine the value of medical services to them. And physicians need flexibility to tailor the delivery of care to suit the individual patient, not to the Medicare bureaucracy.

In fact, CMS should be applauded for a step in this direction by proposing in this rule to exempt reimbursement to patients of non-participating physicians from MIPS penalties. It is improper to impose penalties on patients who choose non-Par physicians for their care. More, not fewer, exemptions to MIPS like this are needed, despite the claims from entities who seek additional bonuses at the expense of small and independent practices.

Additionally, to further the goal of putting patients over paperwork and allowing patients to determine value, CMS should use the final rule to revoke 42 C.F.R. § 405.415(o). This regulation mandates that patients periodically re-sign private contracts with physicians who have opted-out of Medicare. It does not align with statutory changes made by Section 106 of MACRA (Public Law 114-10) to “reduce administrative burden” for Medicare private contracting and should be rescinded.

In conclusion, we appreciate CMS efforts to make changes to free patients and their physicians from bureaucratic red tape. Meaningful change, however, must include abating price controls, shifting away from top-down “value” measures, and ending payment practices, like MIPS, ACO schemes, and facility fees, that discriminate against small or solo practices. As Secretary Azar recently stated, “value is best determined by markets and consumers, not arbitrary rules and central planners.”


Jane M. Orient, MD
Executive Director
Association of American Physicians and Surgeons
[email protected]

PDF version of comments: https://goo.gl/5dScsz