Frequently Asked Questions About Lawsuit
What are the specifics of the lawsuit?
The ACC has filed a complaint, as well as motions for a preliminary injunction and expedited discovery, against Health and Human Services (HHS) Secretary Kathleen Sebelius, in U.S. District Court in Florida. The lawsuit seeks a preliminary injunction against the use of the Physician Practice Information Survey (PPIS) in the implementation of the 2010 Medicare Physician Fee Schedule for cardiology and asks the court to rule the fee schedule rule invalid and order HHS to conduct a new practice expense survey consistent with the law.
The complaint alleges that Secretary Sebelius, in her capacity as HHS secretary, abused her discretion and acted arbitrarily and capriciously in violation of the Medicare statute and the Administrative Procedures Act by using an invalid PPIS to set the payment rates for cardiology services in the 2010 Medicare Physician Fee Schedule. According to the complaint, clear and critical defects exist with respect to the methodology and data used to develop the PPIS, which was used to justify cuts to Medicare reimbursements rates for cardiology and which directly undermine the viability of community practices.
Who are the plaintiffs in the lawsuit?
The American College of Cardiology has filed this lawsuit along with co-plaintiffs the Florida ACC Chapter, American Society of Nuclear Cardiology, the Association of Black Cardiologists and the Cardiology Advocacy Alliance, as well as individual cardiologists and patients.
What are the next steps?
We hope the court will schedule a hearing prior to Jan. 15, 2010, to hear the College's motion for a preliminary injunction enjoining implementation of the 2010 Medicare Physician Fee Schedule for cardiologists. In addition, and at the same time, we hope the court will grant our motion for expedited discovery of the Centers for Medicare and Medicaid Services (CMS) and others involved in the development and analysis of the PPIS. Of course, the court may decide not hear our motions prior to implementation of the fee schedule and/or not grant either motion. Should the federal government seek to prevent the court from hearing our case we will vigorously contest it.
If we win, what will the impact be on cardiologists?
Our objective is to enjoin implementation of the PFS for cardiology based on the flawed PPIS and require CMS to use more reliable, available data or conduct a new survey performed consistent with the law in connection with the adoption of the MPFS for 2010.
Why did the College wait until now to file a lawsuit?
It is clear now that our legislative and regulatory efforts are not going to stop the scheduled reimbursement cuts before Jan. 1, 2010. While the College will continue to pursue legislative and regulatory fixes in January, we are now at a point where we have exhausted all immediate legislative and regulatory options so legal action is the only available next step.
Having anticipated that legal action likely would be necessary, ACC has been preparing its legal strategy in parallel to the regulatory and legislative actions. The College has been working closely with its legal team to prepare a comprehensive and compelling legal challenge. Our complaint and preliminary injunction motion argues that the damage resulting from implementation of the rule is truly imminent – we certainly are at that point now.
If we lose, what then?
The probability of success in any legal action can be difficult to gauge. However, the College would not have taken this action, if it did not believe strongly in the legitimacy of our claims based on the applicable law and the facts and circumstances of this matter. . But should our legal efforts not succeed, rest assured that the College's legislative and regulatory efforts will continue. Thanks to the tremendous grassroots efforts of the entire house of cardiology, we have made great strides in building a strong framework for fighting these cuts at the legislative level in 2010.
What are the implications of the lawsuit on ACC's legislative and regulatory efforts?
We do not know yet what the implications of the lawsuit will be on our regulatory and legislative efforts. We can confidently say, however, that ACC has fully pursued all regulatory and legislative options in an attempt to reach a reasonable compromise before having to resort to a lawsuit to protect patient access to cardiovascular care. Unfortunately, despite the best efforts of many in Congress, there is no sign of a reprieve before the Jan. 1, 2010 deadline. Consequently, given the grave implications of the reimbursement cuts on access to cardiology services across the country, ACC had no other option but to seek relief from the courts. Even so, we will continue to work with Congress, CMS and the Obama administration to resolve this issue, as well as others critical issues related to patient access and health care reform.
What position has the AMA taken on the lawsuit? What about ACP and other specialty societies?
ACC leaders and staff have notified their respective counterparts at the ACP, AMA and other specialty societies regarding our lawsuit. The ACC continues to seek a reasonable solution that minimizes the impact to other specialty societies, while addressing the unjustified and unreasonable cuts to cardiology.
