Is MACRA legal?

Editor’s Note: Welcome to Medical Economics' blog section which features contributions from members of the medical community. These blogs are an opportunity for bloggers to engage with readers about a topic that is top of mind, whether it is practice management, experiences with patients, the industry, medicine in general, or healthcare reform. The series continues with this blog by Louis P. Kartsonis, MD, an ophthalmologist in San Diego, California. The views expressed in these blogs are those of their respective contributors and do not represent the views of Medical Economics or UBM Medica.

Dr. KartsonisOn Oct. 14, 2016, the Department of Health & Human Services published its final rule on the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA). MACRA, passed each chamber of Congress with over 90% of the vote and became law on April 16, 2015.

The rule, a 2,398-page leviathan, glutted with bureaucratic blather, empowers the federal government to regulate payments under Medicare and change the way physicians care for patients. Those who don’t participate will be punished with cuts to their Medicare reimbursements beginning in 2019.

Related: 6 things doctors need to know about MACRA final rule

Despite MACRA’S transformative impact on medical practice, only 50% of non-pediatric physicians have heard of it, according to a July 2016 survey by Deloitte¹.

Compliance with MACRA will require that physicians spend a good part of their working day mired in administrative inertia. The big loser in this scenario will, of course, be the doctor-patient relationship.

Further reading: Small practices get relief in final MACRA rule

Instead of answering patients’ questions and explaining the nuances of their ailments, physicians will be staring at their computer screens trying to keep up with onerous new reporting requirements. In a report by the Ethics & Public Policy Center published in the Wall Street Journal, only one-quarter of the 333 accountable care organizations (a subset MACRA’s Alternative Payment Model) received bonus payments in 2014 for meeting performance targets².

Next: MACRA is a "flagrant violation of the Medicare law"

In the transition from fee-for-service to pay-for-performance, one question that has not been asked is whether MACRA is legal. The Medicare law was passed in 1965 with the stipulation that government would not interfere with the practice of medicine. The relevant clause, titled “Prohibition Against Any Federal Interference,” reads as follows:

Section 1801. Nothing in this title shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided, or over the selection, tenure, or compensation of any officer or employee of any institution, agency, or person providing health services; or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.

MACRA, with all of its distractions and fool’s errands, not only interferes with the way we practice, but threatens our compensation if we don’t get with the program.

Opinion: An open letter to the next president

This is a flagrant violation of the Medicare law. So why isn’t the medical establishment challenging the legality of this morass? If this were any other constituency-lawyers, cops, teachers, labor unions-a challenge would be filed in federal court and their lobbyists would be knocking doors down all over Capitol Hill.

But we doctors sit in silence, willing to acquiesce to more federal folly which, like recertification and “meaningless use,” will waste our time, cost us money and do nothing to improve the quality of healthcare in the United States.

In essence, we have become the 21st century equivalent of Lenin’s useful idiots, meekly surrendering our autonomy because we don’t have the will or the guts to stand up and fight for ourselves.

Pathetic.

Lou Kartsonis is an ophthalmologist in San Diego. He can be reached at dartmouthman@gmail.com.

References:

1. Deloitte Survey Finds Low Physician Awareness and Many Needed Changes by Physicians for Medicare’s MACRA Program. July 13, 2016.

2. MACRA: The Quiet Health-Care Takeover. Wall Street Journal June 1, 2016.