The American Association of Neurological Surgeons (AANS) and the Congress of Neurological Surgeons (CNS) continue to urge Congress to repeal the flawed sustainable growth rate (SGR) system. If Congress fails to act, neurosurgeons face a 27.4 percent reimbursement cut on Jan. 1, 2012. Joining with others in organized medicine, including the Alliance of Specialty Medicine and the American Medical Association (AMA), the AANS and CNS are urging the Congressional Joint Select Committee on Deficit Reduction — aka the “supercommittee” — to include a full repeal of the SGR in its final legislative recommendations, due to be unveiled by Nov. 23, 2011. In a recent letter to the supercommittee, the physician community noted that “…continued delay in replacing the SGR has escalated the cost of permanent payment reform, from $48 billion in 2005 to nearly $300 billion today. We estimate that additional short-term interventions will double the cost to approximately $600 billion by 2016. With a 30 percent across-the-board payment cut in physician services scheduled for Jan. 1, 2012, the implications of continuing this practice of simply putting off cuts to future years are clear. Continued access to care for our nation’s senior and disabled citizens is seriously threatened.”

It is unclear whether the supercommittee will recommend a full repeal of the SGR, a temporary one- or two-year “patch” to prevent the upcoming cuts — or do nothing at all. While the AANS and CNS continue to press Congress to replace the SGR with a system that fairly accounts for the costs of treating Medicare patients, Congress likely will be tempted to adopt a short-term solution and prevent the cuts for the next year or two, despite the long-term fiscal irresponsibility of this approach.

MedPAC Offers Proposal to Repeal the SGR — Pitting Specialists and Primary Against One Another
On Oct. 14, 2011, the Medicare Payment Advisory Commission (MedPAC) sent a letter to Congress outlining a framework for replacing the SGR. While the proposal is considered a nonstarter on Capitol Hill, it nevertheless has garnered significant attention for its proposal to fix the SGR on the backs of specialists. Key elements of the MedPAC proposal include:

• Repeal the SGR and replace it with 10 years of statutory fee updates. This would mean a 5.9 percent cut for specialty services for three years, followed by a pay freeze for seven years, plus a 10-year pay freeze for primary-care services.
• Direct Centers for Medicare & Medicaid Services (CMS) to collect additional data to develop more accurate work and practice expense values, and to ensure Medicare fees reflect efficient care delivery.
• Direct CMS to identify overpriced procedures and reduce their values accordingly.  Beginning in 2015 these fee cuts should achieve at least 1 percent in savings for five consecutive years.
• Accelerate the development of shared savings payment models, such as accountable care organizations (ACOs).

The AANS and CNS have strenuously objected to this proposal. Earlier this fall, we joined our colleagues in the Alliance of Specialty Medicine and the AMA in sending two letters to MedPAC (with copies to the entire Congress and the White House) rejecting this proposal. Additionally, the AANS/CNS Washington Office staff is working closely with Reps. Michael Burgess, MD (R-Texas), and Gene Green (D-Texas) to garner Congressional support against this proposal. Reps. Burgess and Green are circulating a letter to Congressional leaders opposing this proposal. To date, more than 50 Members of Congress have signed the letter.

Know Your Medicare Participation Options
It is that time of year when neurosurgeons may wish to consider whether or not to participate in Medicare. There are three basic contractual options for physicians:

1. Sign a Medicare participation (PAR) agreement. Participating physicians agree to accept Medicare’s allowed charge as payment in full for all of their Medicare patients.
2. Elect non-participation. Non-participating physicians may, on a case-by-case basis, either accept the Medicare rate (which is set at 95 percent of the PAR amount) as payment in full or balance bill patients up to 115 percent of the non-PAR rate.
3. Become a privately contracting physician. Physicians who elect this status must opt-out of the Medicare program for two full years, and their Medicare patients are responsible for paying for any services provided by their physician under a private contract.

Neurosurgeons will have until Dec. 31, 2011, to modify their status with the Medicare program. Any change in status will be effective Jan. 1, 2012. To help physicians decide which option best meets their individual needs, the AMA has prepared a “Medicare Participation Kit.” Editor’s Note: The AANS and CNS do not endorse, encourage or support one particular Medicare option over another. It is up to individual neurosurgeons to make their own decisions about which option best meets the needs of their practices and patients.

Support Grows for Repealing the Independent Payment Advisory Board (IPAB)
Support is building in Congress for the repeal of the Independent Payment Advisory Board   (IPAB). The IPAB was created by health-reform legislation, and is board of 15 unelected and largely unaccountable government bureaucrats whose primary purpose is to cut Medicare spending. Joining with more than 300 organizations representing consumers, patients, seniors, health-care providers, businesses and others, the AANS and CNS strongly oppose the IPAB and are calling for its immediate repeal. Most recently, a coalition organized by the AANS and CNS sent a letter to the deficit reduction supercommittee urging it to include IPAB repeal in its recommendations. There are many problems with the IPAB, including the following:

• Fewer than half of the IPAB members can be health-care providers, and none are permitted to be practicing physicians or be otherwise employed;
• IPAB will be required to recommend cuts based on unrealistic spending targets starting in 2014;
• Providers representing roughly 37 percent of all Medicare payments, including hospitals and hospice care, are exempt from IPAB cuts until 2020; thus, IPAB-directed cuts will disproportionately fall on all other providers and suppliers, including surgeons;
• Without a permanent solution to Medicare’s SGR formula, physicians are essentially subject to “double jeopardy” with cuts from both the SGR and IPAB; and
• IPAB recommendations are “fast-tracked” and automatically go into effect unless blocked or amended by Congress within seven months — which is completely unrealistic.

The AANS and CNS are pushing legislation introduced by Rep. Phil Roe, MD (R-Tenn.) and Sen. John Cornyn (R-Texas), which would repeal the IPAB. Rep. Roe’s bill, H.R. 452, the Medicare Decisions Accountability Act, currently has 211 sponsors, and Sen. Cornyn’s legislation, S. 668, the Health Care Bureaucrats Elimination Act, has 33 sponsors. Neurosurgeons are encouraged to contact Congress and urge your elected officials to cosponsor the Health Care Bureaucrats Elimination Act (S. 668) in the Senate and the Medicare Decisions Accountability Act (H.R. 452) in the House. To send an e-mail message to Congress, go to the AANS/CNS Legislative Action Center. We have created a draft letter that you can personalize. (This is highly encouraged.)

AANS/CNS Press for Medical Liability Reform
The AANS and CNS continue to take a leadership role in seeking federal medical liability reform. Most recently, neurosurgeon Ann Stroink, MD, FAANS, a member of the AANS/CNS Washington Committee and AANS delegate to the AMA, joined Washington Office staff in attending a September AMA Medical Liability Task Force Meeting. Following the meeting, task force members and others sent a letter to the deficit-reduction supercommittee urging the group to include meaningful medical liability reform in its final legislative package. The letter lays out a number of reforms, including:

• A $250,000 cap on non-economic damages;
• Prohibiting new causes of action against physicians and other health-care providers based on standards or guidelines specified in the Affordable Care Act (ACA);
• Liability protections for physicians and other health-care providers so that evidence of nonpayment or payment adjustments based on the CMS’ policies (e.g., nonpayment for surgical-site infections) would be inadmissible as evidence in a liability claim or lawsuit to prove liability or establish a presumption of liability on behalf of a physician or other health-care provider;
• Liability protections for physicians and other health-care providers who provide emergency care or volunteer to treat victims of a disaster by requiring clear and convincing burden of proof; and
• Reforms to require an individual who serves as an expert witness in a liability case to meet standards of expertise and knowledge.

The Congressional Budget Office estimates that implementing comprehensive medical liability reforms, including limits on non-economic damages, would reduce the federal budget deficit by $62.4 billion over 10 years.

For more information about these or other health-policy topics, please contact Katie Orrico, director of the AANS/CNS Washington Office, at korrico@neurosurgery.org.

Katie O. Orrico, JD, is the director of the AANS/CNS Washington Office. She holds a Juris Doctor degree from the George Mason University School of Law and a B.A. from The Catholic University of America. Orrico has worked for organized neurosurgery for more than 26 years and is the recipient of both the AANS’ and CNS’ Distinguished Service Awards. The author reported no conflicts for disclosure.