The RUC Is Bad Medicine; It Has to Go

Brian Klepper, PhD

Disclosures

August 12, 2013

In This Article

FACA and the Public Interest

But the RUC has a deeper structural problem. It has evaded the niceties that we normally demand of federal agencies' external advisors.

The federal government typically insists that advisory panels follow the rules set up under the Federal Advisory Committee Act (FACA). The composition of the panel should reflect the real-world percentages of its constituents. Proceedings should be publicly open and transparent. Analytical methods should be scientifically credible.

In other words, the structure and function of advisory committees should be required to operate in the public interest, protecting us from special-interest lobbying's inevitable excesses. (Remember, for example, when Vice President Cheney met in closed meetings with energy-industry lobbyists to formulate energy policy?)

The RUC adheres to none of these rules. Its proceedings are closed to the public and no transcript is made available. Invitations to the meetings may come only from the Chair and are contingent on signing an onerous nondisclosure form. Valuations have been made with as few as 30 survey responses.

And the committee's composition is overwhelmingly dominated by specialty physicians, though the AMA selectively allocates seats at the table. "Minor" specialties, like gastroenterology, may be excluded from the discussion. Even though Medicare is a program primarily dedicated to senior care, geriatrics was not invited to participate until February 2012.

Medicare's refusal to hold the RUC accountable was the basis of a legal challenge by 6 Augusta, Georgia, primary care physicians.[9] The suit argued that the RUC was a "de facto Federal Advisory Committee" and therefore subject to the FACA rules. Like the district court rulings before it, the appeals court's decision dismissed the plaintiffs' claims on procedural grounds, with almost no discussion of content or merit. The courts ruled that the RUC's relationship with CMS was beyond their jurisdiction and can only be remedied by Congress.

Potential for Meaningful Congressional Action

Given the strong influence that the health industry has had on Congress, the prospects for meaningful policy-based change that can bring healthcare back into balance are poor. In 2009, the year that the Affordable Care Act was formulated, Congress accepted $1.2 billion in campaign contributions from healthcare interests in exchange for influence over the shaping of the law.

Recently, Rep. Jim McDermott (D-Wash.) introduced the Accuracy in Medicare Physician Payment Act (HR 2545), which would require the RUC to adhere to the public-interest requirements of FACA and supplement the current valuation panel with nonphysicians: patients, purchasers, and health economists. It would also provide CMS with more resources to oversee the valuation program. These steps would go a long way toward improving healthcare and cost. But passage would require buy-in from a Congress largely beholden to the healthcare industry. All in all, the chances seem remote.

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