July 2011
The essential resource for your practice
Volume XXI, Number 7

Meet a Member of Congress: Representative Wally Herger (R-CA)

Representative Wally Herger (R-CA) was elected to the U.S. House of Representatives by the people of California's Second Congressional District in 1986.@blurbend This district has the highest share of Medicare-eligible individuals in California, confirming Representative Herger’s responsibility to protect senior citizens' access to healthcare and to place the Medicare program on sound financial footing for the future.

Herger currently serves on the House Committee on Ways and Means, which has jurisdiction over tax policy, trade, Social Security, Medicare and some federal "safety-net" programs. In the 112th Congress, Herger was named Chairman of the Health Subcommittee, which oversees the Medicare program and provisions of the tax code pertaining to healthcare, as well as regulations affecting health insurance plans offered by large employers.

As a member of the Ways and Means Committee, his primary legislative concerns include: 1) securing economic growth and encouraging innovation and entrepreneurship by reducing the tax burden on American families and small businesses; 2) making government run more efficiently by reducing federal regulatory burdens and spending; and 3) responsibly reforming entitlement programs to make them sustainable and ensuring that they will still be around for future generations of Americans.

As the chief Republican on the Health Subcommittee, Chairman Herger has played a leading role in the healthcare debate. He believes the free market will increase transparency, competitiveness and efficiency to make healthcare more affordable for all Americans. He also strongly supports a system that keeps bureaucrats away from medical decisions and places the power in the hands of patients and their doctors.

We recently sat down with Chairman Herger to discuss his work on healthcare reform, as well as the Committee’s healthcare priorities.

Q: As the new chair of the Health Subcommittee for Ways and Means, you have a lot on your plate right now. What big issues will your committee face this year?

Herger: My top priority continues to be the effort to repeal the recently enacted healthcare overhaul and replace it with reforms that focus on reducing healthcare costs. I am concerned that the new health law, if it goes into effect, will make healthcare more expensive while undermining the doctor-patient relationship. As Chairman of the Health Subcommittee, I will be shining a spotlight on the problems with this law and working to find ways to prevent its damaging consequences. Other areas of focus for the Subcommittee will include finding a long-term solution for the Medicare physician payment system and beginning the process of addressing Medicare’s long-term fiscal crisis.

Q: Obviously, one area of concern for our members is the Sustainable Growth Rate (SGR). The current rates are set to expire on December 31, 2011, and physicians will be facing a nearly 30 percent cut in reimbursement. I want to thank you and the Congressional leadership for starting work on this early. What do you think might happen this year before the next cut goes into effect?

Herger: The SGR creates tremendous uncertainty for both physicians and Medicare beneficiaries. The recent practice of short-term patches to avoid cuts under the SGR only makes the problem more difficult and expensive to fix. We need to move forward on a permanent solution. This won’t get done overnight – if it were easy to find a way to pay for the approximately $300 billion cost of doing away with the SGR, it would have happened by now. This week, the Ways & Means Health Subcommittee, which I chair, will hold a hearing on reforming the Medicare physician payment system*. This should be a “from the ground-up’ process and I look forward to receiving input from physicians on how to best replace the SGR.

[*Editor’s Note: This Committee meeting took place on May 12, 2011.]

Q: Another big concern for our members, and most physicians, is the Independent Payment Advisory Board (IPAB). The President and others in the Administration already hope to strengthen this board, while physicians and most of healthcare call for its repeal. (We have supported H.R. 452/S. 668 to repeal the IPAB.) What do you see happening with the IPAB—is there a realistic chance for its repeal?

Herger: I believe that the IPAB, along with the rest of the new health law, needs to be repealed. Empowering a panel of unelected bureaucrats to hold down Medicare spending will inevitably lead to rationing. The best solutions to high healthcare costs will come from the private sector, not government. Unfortunately, the Senate has so far resisted efforts to roll back the healthcare law, while the President is calling for even more power for IPAB. It is important for physicians to let their representatives in Congress know about the negative impact of the IPAB and press for its repeal.

Q: What other issues are you personally championing this year?

Herger: In addition to the SGR and other Medicare reimbursement issues, many physicians may not be aware that a new tax law will require the withholding of 3 percent of government payments to contractors. This will create an additional regulatory burden as well as cash flow problems for some physician practices. The IRS has announced that it will go into effect on January 1, 2013. I have personally introduced legislation (H.R. 674) to repeal the 3 percent withholding tax and this is one of my top priorities in this session of Congress.

Q: Is there anything else you would like to say to our members?

Herger: I want to sincerely thank you for the work that you do. Thanks to the dedication and hard work of physicians across the country, Americans are enjoying longer and more fulfilling lives. We shouldn’t lose sight of that as we work to find ways to lower healthcare costs.

Table of Contents


Coding Corner:

How Do I Properly Code for CT Scans of the Abdomen and/or Pelvis Performed in our Facility?

The Battle to Protect Advanced Imaging Services in Maryland

Lessons learned and a call to action for urologists in every other state
Mark T. Edney, MD
President, Maryland Urologists for Patient Access and Care

With the close of the 2011 legislative session on April 11, Maryland acquired the dubious distinction of becoming the only state in the Union to deny urologists and any other non-radiologists the ability to provide their patients with magnetic resonance imaging (MRI) and computed tomography (CT) in the medical office setting.@blurbend What follows is a brief summary of how Maryland got to this point. It is a story of restrictive policy enacted without urology and other specialties at the table. It is also an example of nationally-supported state-level advocacy at its best. Most importantly, it is a trove of lessons learned for those who would advocate for the autonomy of urologists and all other treating physicians in every other state to be able to furnish their patients with the highest quality integrated healthcare services within their own medical practices.

In 1993, the Maryland General Assembly enacted the State’s Patient Referral Law. Like the federal physician self-referral law, the Maryland law included a broad prohibition against physicians and other healthcare practitioners referring patients to healthcare entities in which the practitioners had ownership interests. Several exceptions to this rule were included in the law. The ones that have been a part of the current discussion are:

  • The “group practice” exception where a practitioner refers a patient to another practitioner in the same group practice;
  • The “direct supervision” exception where the practitioner refers a patient for a service or test done by an entity in which the referring practitioner has an ownership interest as long as the referring practitioner personally performs or directly supervises the test; and
  • The “in-office ancillary services” exception where a practitioner refers a patient for a basic healthcare service or test routinely performed in the office.

What made Maryland's law unique was that, when the law was passed in 1993, radiology interest groups sought to create a monopoly over MRI and CT services by getting the legislature to carve those services out from the “in-office ancillary services” exception unless furnished by an office consisting solely of radiologists or by a radiology group practice. No other state in the country nor the federal government had ever included such a carve out for one medical specialty in a physician self-referral law.

Since 1993, the evolution of CT and MRI technology has resulted in each modality being increasingly relied on for efficient and accurate diagnosis of more disease processes across multiple specialties. Accordingly, a variety of specialty practices including urology, orthopedics, gastroenterology, emergency medicine, cardiology and others have acquired these tools to provide timely, high-quality diagnoses to their patients at the point of care. In Maryland, this was done with the understanding that furnishing such services was permitted under the independent “group practice” or “direct supervision” exceptions.

Since 1993, the relationship between these various exceptions to the Maryland Patient Referral Law as applied to in-office MRI and CT services has been contested in Circuit Court twice, once with a ruling favorable to the treating physicians (a group of orthopedic surgeons) and another ruling against and in support of the State Board of Physicians, which had interpreted the statute in favor of radiologists' interests. The Maryland Court of Appeals (the State's highest court) decided to consider the second of these two cases and heard oral argument in October 2008. More than two years later, the Court ruled on January 24, 2011, in favor of the Board of Physicians ruling (against non-radiologist treating physicians owning and furnishing in-office MRI and CT services).

Paralleling the court cases, the battle on behalf of treating physicians has been fought in the Maryland General Assembly every year since 2007. The state-level effort has been spearheaded by the Maryland Patient Care and Access Coalition (MPCAC), a multispecialty coalition of orthopedists, urologists, emergency physicians and gastroenterologists. Maryland’s state urology coalition, Maryland Urologists for Patient Access and Care (MUPAC), has also been intimately involved in the effort. Although a compromise bill that would have preserved treating physician’s ability to furnish in-office CT and MRI services had been introduced in each of the last several sessions, it had not made it out of committee in the House or Senate, not for lack of support but, rather, because the General Assembly was waiting for resolution of the judicial process.

The AUA has been a tremendous support and partner in this effort in Maryland both financially and in terms of lending its voice to the cause. The AUA was the lead national medical specialty organization coordinating the preparation and briefing of supporting urologists and the other treating physicians in the court cases. Also, Brian S. Bailey, AUA Government Relations & Advocacy States & Sections Manager, coordinated a sign-on letter in support of the legislation that was signed by 10 national medical specialty organizations. Other national organizations, including the American Association of Clinical Urologists (AACU) and the American Association of Orthopedic Surgeons, were also instrumental in national level support of this state effort.

With the Court of Appeals ruling, the 2011 session was “do or die” for our bill protecting treating physicians' right to furnish in-office MRI and CT services. The large-scale effort of coordinating committee testimony, overseeing the messaging to legislators, and coordinating a unified voice amongst the various interested state and national parties was handled expertly by our coalitions’ attorney Howard Rubin and his team at Katten Muchin Rosenman. We also benefitted greatly from the expertise and guidance of our lobbyists at Manis Canning & Associates led by Van Mitchell. It truly was state-level advocacy at its best.

After this well-coordinated effort, and with, by most accounts, enough votes in both the House and Senate Committees to get the bill to the floor of each chamber, the bill died. It died not because it was defeated on the merits as a matter of public policy, but simply because of pure politics by which entrenched radiology interests were able to convince certain members of leadership in the House and Senate not to allow committee votes to test the appropriateness of maintaining monopolies for radiology over CT and MRI services.

The message for urologists and all other treating physicians outside of Maryland is to get organized and be vigilant. The American College of Radiology considers Maryland’s current policy to be a “model for the rest of the country.” There have been heretofore unsuccessful attempts in Pennsylvania and Oregon to enact Maryland-esque monopolies over MRI and CT services for radiologists in physician self-referral laws. These attempts are just the beginning. Urologists interested in advocacy should contact others in their states – within their own medical specialty and across medical specialties – and build coalitions. You need experienced healthcare attorneys and lobbyists. It is not as expensive as you might think and should now be considered the “cost of doing business.” We have a phenomenal team of experts in the AUA’s Government Relations & Advocacy Department, as well as at the AACU, who can complement the efforts of those who are your “boots on the ground” in your state much like the very positive team effort in Maryland. An organized coalition can go on offense and promulgate good common sense self-referral policy where none exists. It can also quickly organize to defend against legislation harmful to the autonomy of urologists and other physicians who seek to provide their patients with the highest quality integrated medical care in their offices. The AUA works vigilantly to protect urologists' rights against these kinds of attacks under federal law, but each state needs its own effort to complement the work of the AUA in order to prevent more restrictive policy from being enacted. As Maryland’s experience illustrates, it is far harder to undo a restrictive policy once enacted into law than it is to start fresh with good policy. State level coalitions can make this happen.

For The Record

Urologists Receive 3.3 Percent of Electronic Prescribing Incentive Money Paid for 2009

According to the 2009 Physician Quality Reporting System (PQRS) and Electronic Prescribing (ERx) Experience Report (link removed) recently issued by the Centers for Medicare & Medicaid Services (CMS), urologists received ERx incentive payments for 2009 totaling almost $5 million dollars and representing 3.32 percent of the national total paid to all providers for the year.@blurbend Ophthalmology received the highest percentage, with more than 20 percent, and cardiology was second with almost 17 percent. 

The mean amount paid to a urologist for 2009 (representing 2 percent of their Medicare allowables) was $4,578. CMS noted that 21 percent of the eligible urologists participated in the ERx program and more than half of those who participated (56 percent) were successful in collecting an incentive payment. In 2009, a provider could use three codes to report his/her ERx behavior and could only report using the claims reporting mechanism. In 2010, the number of codes was reduced to one (G8553) and there were more reporting options (claims, registry and electronic health records). It remains to be seen if the simplification of reporting will lead to higher incentives for 2010, but through the first half of the year, the CMS statistics indicate that performance rates are lower.

CMS Launches Useful Calculator to Help Understand Attestation Requirements for EHR Incentive Program

The Centers for Medicare & Medicaid Services’ (CMS) Meaningful Use Attestation Calculator walks eligible professionals through the core and menu measures to help determine if they have met all of the objectives and their associated measures for Meaningful Use prior to attempting actual attestation. Because of the wide flexibility of quality measures, the calculator does not itemize clinical quality measures. This type of measure data must be reported directly from a certified electronic health record (EHR) and will need to be entered in the Web-based attestation system to receive an incentive payment. This tool will help a practice understand exactly what data needs to be extracted from its EHR to successfully attest to Meaningful Use after their 90-day reporting period. Click here (link removed) for more information about the attestation process.

Three EHR Vendors Demonstrate Meaningful Use Measures at 2011 Urology Practice Management Conference

The final session of the 2011 Urology Practice Management Conference from May 13-14, 2011, held by the AUA Practice Management Department in cooperation with the MGMA Urology Administration Assembly, was an actual demonstration on three different certified EHR systems of core measures required for Meaningful Use. Allscripts, Meridian and Urochart each put their certified software through the paces to show how computerized physician order entry, vital signs with calculated body mass indices and decision support rules work in the Meaningful Use environment. Robert Dowling, MD, from Urology Associates of North Texas (who is also a member of the AUA Health Information Technology Workgroup) served as moderator, along with Rick Rutherford, AUA Director of Practice Management. The session was designed to allow conference attendees to “look under the hood” of systems as they carry out these Meaningful Use requirements. The audience was supplied with Audience Response System (ARS) devices to react to the demonstrations. In response to one ARS question, more than 70 percent of attendees indicated that they already had EHR systems in place in their practices. ARS responses before and after the demonstrations noted that attendees gained confidence in understanding how Meaningful Use actually happens in a typical urology working environment as a result of this course. 

For more information, please e-mail pracman@AUAnet.org.

AUA Releases New Statement Regarding Infections Secondary to Transrectal Prostate Needle Biopsies

Research reports suggest that the rate of infectious complications, including sepsis, after transrectal prostate needle biopsy may be increasing. Recently published news articles highlighted these findings, and it is important for urologists to be aware of this issue.

According to the AUA Best Practice Statement on Urologic Surgery Antimicrobial Prophylaxis, the antimicrobial of choice prior to prostate needle biopsy is a fluoroquinolone or a second- or third-generation cephalosporin. Alternative agents include an aminoglycoside plus metronidazole or clindamycin. Oral fluoroquinolones are the most commonly used agents in clinical practice.@blurbend

The primary reason for post-biopsy infections appears to be the presence of fluoroquinolone-resistant organisms in the fecal flora. Risk factors which predict the presence of resistant bacteria are not well defined, but may include previous fluoroquinolone administration, and patient occupation as a healthcare worker. Prior to performing a transrectal prostate biopsy, urologists should consider broadening the antimicrobial coverage in patients with these risk factors. Furthermore, in men with signs of an infection after prostate needle biopsy, the presence of resistant bacteria is likely and broad-spectrum treatment should be initiated.

Click here to view the AUA Best Practice Policy Statement on Urologic Surgery Antimicrobial Prophylaxis, with full references.