RPA SUES CMS

CHARGES RECENT GOVERNMENT PROVISION MAY HAVE HARMFUL IMPACT ON DIALYSIS PATIENTS' CARE

ROCKVILLE, MD-The Renal Physicians Association (RPA) announced today that it has filed suit in U.S. District Court in Washington D.C., charging that a provision in the recent Stark II Interim Final rule will negatively impact the ability of dialysis facilities to provide quality health care to patients with end-stage renal disease. The suit was filed against the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS). "The expected outcome of this provision is that dialysis facilities will have difficulty recruiting individuals with the training and experience necessary to be effective medical directors," explained Dr. Jim Weiss, RPA president. "This is a major concern, because of the potential significant adverse impact on the quality of dialysis patient care." The RPA believes the safe harbor inappropriately applies hourly wage rate methodologies to a medical executive-level function with a broad scope of responsibilities. The safe harbor outlines two methodologies used to determine medical director compensation. One methodology utilizes the average hourly rate for emergency room physicians and the other utilizes six specific physician salary surveys.

"We are concerned that dialysis companies will require the use of these safe harbor methodologies in order to demonstrate their compliance with the Stark Act," Weiss said. "If that happens, these methodologies would become the norm. This will result in an unfair and inappropriate compensation for the extensive workload of medical directors of dialysis facilities which currently help ensure quality medical care for our patients. Accordingly, a further result will be decreased compensation to medical directors, thus increasing the difficulty of recruiting the highly skilled individuals with the experience level needed to be effective medical directors of dialysis facilities. That is why in the long run, dialysis patient care is at significant risk." In the lawsuit the RPA also contends that HHS failed to follow the Administrative Procedure Act (APA) in developing the safe harbor provision. "The safe harbor provision was not made available for the customary public comment and review process, which is in violation of the APA," said Robert J. Pristave, an attorney with McGuireWoods LLP who represents the RPA in the lawsuit. "In addition, the salary surveys are inappropriate in that they either do not exist, are difficult to obtain or are out of date." Other groups within organized medicine have echoed RPA's concerns regarding the medical director safe harbor. The American Medical Association (AMA), the American College of Physicians (ACP), the Council of American Kidney Societies (CAKS), and the Renal Leadership Council (RLC) are among the organizations that submitted comments to CMS expressing concern regarding the safe harbor provision. The AMA's comments noted that "we share the concerns of the nephrology community and others that the new safe harbors would eventually become the industry standard for fair market value in this context." ACP's comments stated, "in essence, CMS is implying that it (the safe harbor) is the 'gold standard' that should be applied without mandating that not doing so would be illegal. The structure and benefits of using the recommended safe harbor methodologies, however, will in effect mandate their use and become the standard." ACP went on to call for a delay in implementation of the provision, expressing their belief that the process surrounding the development of the safe harbor "violates the spirit of the Administrative Procedure Act."

About the Renal Physicians Association: Organized in 1973, the RPA is a national medical specialty association with a membership comprised of healthcare providers in the subspecialty area of internal medicine known as nephrology. RPA represents and serves nephrologists, practice managers, advanced practice nurses and physician assistants in their pursuit of quality renal health care. RPA's members are engaged in diverse activities including the practice of medicine, teaching, research and all are committed to improving the care of patients with renal disease and related disorders.