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Today, Attorney General Lynn Fitch joined Dr. Amber Colville of Ocean Springs, Mississippi and Dr. Ralph Alvarado of Winchester, Kentucky, as well as the Attorneys General of Alabama, Arizona, Arkansas, Kentucky, Louisiana, Missouri, and Montana in filing suit against a new federal rule penalizing physician reimbursement for not creating and implementing anti-racism plans for their practices. The complaint was filed in the U.S. District Court for the Southern District of Mississippi.
“Doctors should spend their time pursuing the best possible health outcomes for their patients,” said Attorney General Lynn Fitch. “Penalizing them for putting patient care above pursuit of the Biden Administration’s political agenda is indefensible. We do not condone racial discrimination in medicine of any kind, but this rule could end up reducing quality of care, including for the very people that it claims to be written for.”
The new rule by the Centers for Medicare and Medicaid Services (CMS) is intended to provide incentive payments to doctors who create and implement an anti-racism plan for their practices that “emphasizes systemic racism is the root cause for differences in health outcomes between socially defined racial groups.” Under the rule, the “plan should include a clinic-wide review of existing tools and policies, such as value statements or clinical practice guidelines, to ensure that they include and are aligned with a commitment to anti-racism and an understanding of race as a political and social construct, not a physiological one.”
As noted in the rule, a plan which earns a physician the bonus payment “should also identify ways in which issues and gaps identified in the review can be addressed and should include target goals and milestones for addressing prioritized issues and gaps.” The rule further suggests that a physician eligible for the additional reimbursement should “also consider including in their plan ongoing training on anti-racism and/or other processes to support identifying explicit and implicit biases in patient care and addressing historic health inequities experienced by people of color.”
CMS utilizes the Merit-based Incentive Payment System (MIPS) created by the Medicare Access and CHIP Reauthorization Act of 2015 to implement its rule. Under MIPS, doctors can earn incentive payments for practices related to quality, resource use, improvement activities, and promoting interoperability. Congress contemplated such activities as same-day appointments, clinical and surgical checklists, alternative payment models, and timely communication of test results. The Obama and Trump Administrations rejected similar proposals for anti-racism practice plans.
Doctors can receive anywhere between a 9% increase and 9% decrease in their reimbursement based on their performance relative to their peers. Their scores are weighted, with 15% determined by the physician’s performance in the “Clinical Practice Improvement Activities” category. The anti-racism plan is part of this heavily-weighted category.
The complaint alleges that the rule violates federal law, including the Medicare Access Act, and relies on President Biden’s inaugural day Executive Order 13985 (“Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government”) as its authority to countermand Congressional directives. The suit also alleges that the rule is arbitrary and capricious and otherwise falls short of Administrative Procedure Act requirements.
The filed complaint is attached here.
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