Legislative Forecast for Radiology Issues in the 109th Congress
Washington insiders, congressional staffers, and lobbyists are optimistic about bipartisan support for some legislative initiatives during the first session of the 109th Congress, due to the outcome of the recent federal elections. When the 109th Congress convened in January, Republicans held 233 of 435 seats in the House of Representatives and 55 of 100 seats in the Senate.
As a result, this session will afford legislators an excellent opportunity to finally implement a variety of new health care policies, including medical liability reform.
Malpractice Reform
The medical liability crisis afflicting physicians continues to deprive patients, especially women, from obtaining affordable, quality health care. While there is great debate as to how much this crisis drives health care spending, the 108th Congress saw both chambers, at the behest of the Bush administration, push legislation modeled after California's Medical Injury Compensation Reform Act (MICRA) of 1975, which, among its other reforms, places a $250,000 cap on the amount of noneconomic damages that may be awarded in a medical malpractice lawsuit. The stable medical liability insurance rates California physicians have enjoyed since 1976 is generally attributed to MICRA.
The major liability impact point for radiology is breast imaging, especially mammography. A 2002 joint ACR-Physicians Insurance Association of America study reveals radiologists are the most frequent defendants in medical liability actions and mammography is the most common examination for which radiologists are sued. The study also illustrates that failure to diagnose breast cancer is now the most common cause of medical liability claims. Because of liability concerns, fewer radiology residents are willing to pursue fellowships in breast imaging. Hundreds of mammography facilities have closed throughout the country, which has led to decreased access for women seeking this lifesaving service.
Although medical malpractice liability is governed by state law, Congress has the power to regulate it under the Commerce Clause of the US Constitution. In March 2003, the House successfully passed comprehensive reform legislation introduced by retiring Rep Jim Greenwood (R, Pa). However, the Senate failed on 3 occasions to bring such legislation up for a vote, as the issue of limiting damages was a major stumbling block during the debate. Additionally, the Democrats attempted to shift blame from the trial lawyers to the insurance companies and called for reform of the McCarran-Ferguson Act, which, among other things, provides that federal antitrust laws do not apply to the business of insurance as long as such business is regulated by state law.
Despite the increase to 55 Republican Senate seats, the filibuster continues to be of great concern with regard to medical liability reform legislation in the Senate. MarkHayes, the Health Policy Director for the Senate Committee on Finance's Republican staff, believes it may be too difficult to obtain the 60 votes needed to move meaningful legislation. Pursuant to Rule 22 of the Senate, three fifths of the members of the Senate are required to vote to end debate on a measure before an up or down vote can be taken. During the 108th Congress, the Senate failed 49-48 to end debate on comprehensive legislation nearly identical to the bill that passed the House, and also failed to end debate on 2 medical specialty-specific measures: 48-45, obstetricians/ gynecologists, and 49-48, obstetricians/gynecologists and emergency room physicians.
Many pundits believe legislation that limits noneconomic damages, which are generally defined as damages to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages, will not pass the Senate unless the cap is increased to $500,000 with a carve-out that would increase the cap to $1,000,000 in instances of catastrophic injuries. Bipartisan legislation would also likely require the inclusion of a provision to prohibit victims from bringing a medical malpractice lawsuit without an affidavit from a qualified specialist attesting to the reasonableness of the filing, as well as force the attorney representing the claimant to sign a certificate of merit attesting to the legitimacy of the claim.
In addition to medical liability reform, deficit reduction is a leading priority of the Bush administration. According to Joel White, the Republican staff director for the Subcommittee on Health of the House of Representatives Committee on Ways and Means, the administration will work with Congress to obtain the necessary savings from entitlement programs, such as Medicare and Medicaid. Liz Fowler, the Democrat staff director for the Senate Committee on Finance, added that the Medicare Payment Advisory Commission's (MedPAC) recommendations will be strongly considered to accomplish this goal, although Congress is not obligated to accept any or all of them.
Appropriate Imaging
One area of physician services that has piqued the interest of both lawmakers and federal regulatory agencies for its dramatic explosion in volume is diagnostic medical imaging procedures. In order to curb this problem without causing its members to face reduced fees, the ACR has been working closely with MedPAC to establish a policy focusing on quality of care and patient safety as the means for obtaining cost savings. MedPAC appears to be moving in this direction as evidenced by its recent draft recommendations to the Centers for Medicare and Medicaid Services.
It suggested Congress require all diagnostic imaging facilities to meet quality standards for imaging equipment, nonphysician staff, images produced, and patient safety protocols, as well as restrict Medicare payments for CT, MRI, and PET, except when such services are provided for the purpose of radiation therapy treatment planning to radiologists or other physicians satisfying appropriate training and experience requirements who interpret images produced by these examinations in a certified facility. Private organizations, such as the College, would be deemed accreditation bodies by the secretary for these purposes.
If the commission agrees with the recommendations, MedPAC will publish them for congressional consideration in March 2005.
Instability of Conversion Factor
In a year of deficit reduction, Congress will also examine physician fee payments. According to the October 2004 GAO Report, in 2003, Medicare spending for physician services totaled nearly $48 billion, which accounted for about one sixth of program spending overall. Technological advances in areas such diagnostic imaging will increase the price tag of the Medicare program, which is already unstable.
Under Medicare, the Sustainable Growth Rate (SGR) sets spending targets and adjusts physician fees based on the extent to which actual spending aligns with specified targets. The SGR system targets are designed to allow spending per beneficiary (adjusted for the estimated underlying cost of providing physician services) to grow at the same rate as the national economy grows over time on a per capita basis.
In 2002, Medicare reduced physician fee reimbursement by 5.4% because spending exceeded predetermined spending targets under the SGR. While administrative and legislative action has overridden the SGR for 2003 through 2005, physician fees are expected to fall by approximately 5% each year from 2006 until 2012. Congress is expected to consider appropriateness of current spending targets and the SGR as a system for determining physician fee updates. The 2 chief policy options include either ending the use of spending targets and separating fee updates from explicit efforts to moderate spending growth—which is favored by MedPAC and the American Medical Association—or retain spending targets but modify the current SGR system to address perceived shortcomings, which is favored by Congress.
The first session of the 109th Congress will certainly be busy as tort reform and deficit reduction take center stage. The government relations staff of the College will continue to work closely with members of Congress in the pursuit of legislation that best serves its members' interests.