College of American Pathologists
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June 2007
Feature Story

For cytology PT, it’s time for legislative solution
In Texas, mandatory disclosure for AP
Ruling: HMOs must pay for professional component
Pressing for SGR adjustment

bullet For cytology PT, it’s time for legislative solution

Another delay on the proposed cytology proficiency testing regulation from the Centers for Medicare and Medicaid Services provides more evidence that the regulatory process has failed and that a legislative solution is necessary, says CAP president Thomas M. Sodeman, MD.

“These repeated delays in the publication of the proposed rule mean pathologists and cytotechnologists will continue to be tested under an outdated and ineffective program through 2008 and, worse still, likely 2009,” Dr. Sodeman said in a letter sent last month to all CAP members.

The Department of Health and Human Services included the revised CMS timetable in its semiannual regulatory agenda, which was published April 30 in the Federal Register. Initially, the CMS announced the regulation would be published in February 2007. The date was later moved to July, then to “sometime this year,” and now December.

“In good faith, the College along with virtually every pathology and cytopathology organization sought to work with CMS to revise the regulation, but I think it is pretty clear the regulatory process has failed the profession and we now need to unite and take our case to Congress,” Dr. Sodeman said in the letter. “After all, it’s only because of Congressional pressure that the agency agreed to revisit the rule in the first place.”

The CMS agreed to reopen the regulation for revision only after the College, working with key legislators, managed to push legislation through the House of Representatives in December 2005, calling upon the CMS to suspend the program and to implement significant changes, Dr. Sodeman explains. “CMS Administrator Mark McClellan personally lobbied our champions in the House of Representatives against our bill in 2005. So the resistance to change at CMS is strong and entrenched.”

The CMS worked to block consideration of the College’s legislation in the Senate in 2005, telling the staff of key legislators that it would move expeditiously to address the profession’s concerns through the rulemaking process.

“Forced to act to prevent Congressional intervention, CMS constructed a process that lacked transparency and stifled discussion of key issues. The agency selected a panel of cytology professionals, but controlled what they could discuss, instructing them that they could make no recommendations to revise the underlying statute to improve the cytology provisions under CLIA.

“Despite the sincere efforts of the College and the profession to work with CMS, the regulatory process clearly is broken, and the profession should no longer rely on the regulatory process to address this issue. We need to take our case to Congress now,” Dr. Sodeman said.

The College has put forth an alternative approach, which has been embodied in HR 1237, the Cytology Proficiency Improvement Act of 2007, introduced in the U.S. House of Representatives by Bart Gordon (D-Tenn.) and Tom Price (R-Ga.). The bill suspends the current cytology PT program and substitutes a less punitive approach that requires annual CME to enhance locator and interpretive skills.

More than 60 national and state pathology and laboratory organizations have pledged their support of the bill, and recently the American Medical Association threw its support behind HR 1237. But not all pathology and cytopathology organizations have endorsed it. Some organizations have said they support the intent of the bill but are putting their faith in the regulatory process.

“Understandably, these organizations have called for CMS to expedite the rule, but it is now clear quick regulatory action means years, not months, and the profession deserves better than that, and those organizations that profess to represent you should demand more and not tolerate delays from CMS,” Dr. Sodeman writes.

In the letter, he asks College members to contact their members of Congress to urge their support of HR 1237. If a member’s representative is a cosponsor, that member should send a thank-you note. If a member’s representative is not a co-sponsor, that member should send a note urging their support.

Dr. Sodeman also asked members who belong to multiple pathology organizations to check to see if the other organizations are supporting HR 1237 as a coalition member. (Coalition members are listed on the CAP Web site at .) If they are not, Dr. Sodeman asks that they be sent a letter urging them to endorse HR 1237 and to “unify behind the profession.” If they are a member, Dr. Sodeman suggests sending their leadership a thank-you note for standing with the profession.

The College has organized within the coalition a steering committee that will set the strategy to secure passage of HR 1237, which had 46 co-sponsors at CAP TODAY press time.

Organizations representing the committee, in addition to the CAP, are the Texas, Georgia, and California state pathology societies, as well as the American Pathology Foundation, American Society of Cytopathology, USCAP, Association of Pathology Chairs, Association of Directors of Anatomic and Surgical Pathology, Arthur Purdy Stout Society, and American Society of Colposcopy and Cervical Pathology.

bullet In Texas, mandatory disclosure for AP

A new Texas law requires ordering clinicians to disclose the net amount owed for each anatomic pathology service provided by a physician or laboratory in bills sent to patients or payers. The law goes into effect Sept. 1.

The legislation was passed May 7 in Texas following a collaborative effort of the CAP and the Texas Society of Pathologists. SB 1832 cleared the Senate 28–1 and the House 140–0.

The legislation applies to any person who, or entity (excluding hospitals) that, does not perform or directly supervise anatomic pathology services. The legislation also defines anatomic pathology services, consistent with model CAP legislation enacted in multiple states.

Any person who or entity that does not comply with the disclosure requirement will be subject to disciplinary action and penalties by the Texas Medical Board.

Texas is the 14th state to have such a disclosure law. The others are Arizona, Connecticut, Delaware, Florida, Louisiana, Maine, Maryland, North Carolina, Pennsylvania, Vermont, New Jersey, Tennessee, and Utah.

The Texas Medical Association reluctantly supported enactment of the disclosure law after it vehemently opposed the originally introduced direct billing legislation (HB 1557) for anatomic pathology services and an anti-markup alternative, both advocated by the CAP and the Texas Society of Pathologists. Various Texas medical specialties also opposed the legislation.

Texas Medical Association support for a disclosure bill compromise followed nearly unanimous House passage of a similar disclosure measure, though that legislation would have imposed a criminal penalty for a violation and was enforceable by the state attorney general.

The TMA, in opposition testimony March 12 at the House hearing on the original direct billing legislation, said with respect to client billing: “Only in medicine, because of the ethical considerations, is such a practice questioned. That’s not a defense of the practice, simply recognition of reality. For other professionals, subcontracting work is common and accepted.”

Testimony in support of the original direct billing legislation was presented by E. Randy Eckert, MD, chair of the CAP Council on Government and Professional Affairs; Thomas Wheeler, MD, chair of the CAP Council on Scientific Affairs; and Michael Deck, MD, state issue adviser for the Texas Society of Pathologists.

bullet Ruling: HMOs must pay for professional component

A Florida judge ruled April 20 in favor of a Miami-Dade pathology group seeking direct payment from an HMO for the professional component of clinical pathology services. The jury, responsible for determining damages only, awarded the plaintiff the full amount it sought in Palmetto Pathology Services v. Health Options Inc.

This case involves one of the 11 pathology groups that filed suit last year against Health Options, the HMO subsidiary of Blue Cross Blue Shield of Florida, for recovery of payment for professional clinical pathology services. The judge ruled that as a matter of Florida law, Health Options was responsible for payment to the pathology group for covered professional clinical pathology services provided to the HMO subscribers.

bullet Pressing for SGR adjustment

The CAP and more than 80 national physician and other health professional organizations urged in an April letter to the Centers for Medicare and Medicaid Services that the CMS adopt policy changes to help avert Medicare payment cuts driven by the flawed sustainable growth rate, or SGR, formula. Though Congress passed legislation that stopped the proposed five percent Medicare physician payment cut based on the SGR for 2007, it is only a short-term fix.

Without adjustment to the SGR, pathologists and other health professionals may face a 10 percent cut in 2008. These cuts could be deeper in the future without a longer-term solution.

The letter sent to the CMS, organized by the American Medical Association, proposed securing a 2008 payment update that will cover practice cost increases and recommended:

  • Applying the Physician Assistance and Quality Initiative Fund to the 2008 conversion factor update, as recommended by the Medicare Payment Advisory Commission in its March report to Congress.
  • Removing the cost of Part B drugs from all SGR calculations, retroactive to the 1996 SGR base year.
  • Reducing the productivity adjustment to the Medicare Economic Index for physicians and other health care providers to 0.65 percentage points as it has recommended for other Medicare providers.

Gretchen Schaefer is director, CAP Communications for Advocacy, Washington, DC.

Dr. Bissell is Professor and Director of Clinical Services and Vice Chair, Department of Pathology, Ohio State University Medical Center, Columbus.