CHAPTER 8

STS Advocacy John E. Mayer, Jr, MD, and Gordon F. Murray, MD Department of Cardiovascular Surgery, Children’s Hospital Boston, Boston, Massachusetts; and Section of Cardiothoracic Surgery, West Virginia University, Southport, North Carolina

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dvocacy can be broadly defined as efforts to plead the cause and improve the situation of others. Or to paraphrase, advocacy strives to change “what is” to “what should be.” Advocacy for all board certified thoracic surgeons with a dedicated and ethical practice in the field of thoracic and cardiovascular surgery was one of the raisons d’etre for the beginning of The Society of Thoracic Surgeons (STS) [1, 2] from the time it was established in 1964. The Society of Thoracic Surgeons’ advocacy efforts would ultimately extend to patients, residents and their education, health care policy and reimbursement, and accountability and quality assurance. Advocacy remains a key component of the STS mission: to enhance the ability of cardiothoracic surgeons to provide the highest quality patient care through education, research, and advocacy. In his introductory remarks at the first STS Annual Meeting in St. Louis in 1965, the Society’s first President, Paul C. Samson, MD, emphasized that STS would provide its members a forum and identification with a national specialty group for all practicing surgeons; and, in particular, advocacy for younger surgeons who, in their local communities, may be especially encouraged to further the objectives of the Society [2]. The early and mid-1970s were a time when the specialty began to focus on a much larger practice perspective that went beyond clinical issues to deal with the implications of government regulation, reimbursement, manpower needs, credentialing, self-regulation, responsible and sustainable educational models, ethics and peer review, all requiring advocacy in one form or another. Benson B. Roe, MD, was the first STS President to focus on many societal issues facing cardiothoracic surgeons: minimum standards and their enforcement; present and projected manpower needs; educational parameters; ethical codes; and realistic economic policy [3]. In 1974, STS President Earle B. Kay, MD, made reference to the National Health Planning and Resource Development Act, which was enacted to monitor quality and costs of medical services performed under Medicare and Medicaid through regional Professional Standards Review Organizations (PSROs) [4]. It was Dr Kay’s contention that a better working relationship between organized medicine and the government would best serve advocacy for both the profession and the public [4]. The first STS Government Relations Committee was formed in 1977 under the chairmanship of Arthur C. Beall, Jr, MD. Subsequent chairmen included L. Thompson ˇ

Address correspondence to Dr Mayer, Dept of Cardiovascular Surgery, Children’s Hospital Boston. Children’s Hospital- Bader 273, 300 Longwood Ave, Boston, MA 02115; e-mail: [email protected].

Ó 2014 by The Society of Thoracic Surgeons Published by Elsevier Inc

Bowles, MD, PhD (1980–1983), John M. Keshishian, MD (1983–1984), John Albers, MD (1984–1991), George E. Miller, Jr, MD (1992–1993), Jack M. Matloff, MD (1993–1996), Timothy J. Gardner, MD (1996–2001), and John E. Mayer, Jr, MD (Fig 1) (2001–2002). In 1986, this committee became a joint committee of STS and the American Association for Thoracic Surgery (AATS). With the reorganization of the STS governance structure in 2002, a Council on Health Policy and Relationships was created. Chairs of this Council have included Drs Mayer (2002–2005 and 2009–2010), Keith S. Naunheim, MD (2005–2009), and Sidney Levitsky, MD (Fig 2) (2010–present). Under the Council is the STS Workforce on Health Policy, Practice and Reform (now the Workforce on Health Policy, Reform and Advocacy), which has been led by Kevin A. Accola, MD (2002–2008) and T. Bruce Ferguson, Jr, MD (2008–present). In the years since the initial government relations efforts of the 1970s, health policy and advocacy have assumed an increasingly prominent position in STS activities. Several factors, internal and external to the profession, have driven this health policy effort, but the most fundamental factor affecting both cardiothoracic surgery and all of American medicine has been the relative rates of growth of per capita national health care expenditures (NHE) compared with the rates of growth of the per capita US gross domestic product (GDP). Since 1980, the growth of per capita NHE has exceeded that of the per capita GDP in all but a few isolated years in the mid 1990s [5]. In 2009, total NHE was $2.26 trillion compared with a total US GDP of $12.88 trillion. In addition, 43% of these expenditures were paid by federal, state, and local governments in 2009 [5]. This progressive growth in health care expenditures has been the result of multiple factors, including remarkable improvements in patient care and the incorporation of new technologies and pharmaceuticals in daily practice. Health care economists have argued that the growth in NHE cannot be explained only by these advances, but may be due in part to the incentives provided by the medical reimbursement system, particularly under Medicare [6]. In response to this rapid growth in expenditures, the US Congress has enacted a series of laws designed to control Medicare costs, including a prospective payment system for hospitals in 1983 (the prospective payment by diagnosis-related group system), the resource based relative value scale (RBRVS) to control physician payments (Omnibus Budget Reconciliation Act [OBRA] 1989), and the sustainable growth rate for physician payments under Part B to further control physician payments (Balanced Budget Act 1997) [7]. These significant statutory and regulatory changes to Ann Thorac Surg 2014;97:S34–S39  0003-4975/$36.00 http://dx.doi.org/10.1016/j.athoracsur.2013.10.012

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Fig 1. John E. Mayer, Jr, MD.

reimbursement in the health care environment resulted in the creation and expansion of the health policy capabilities of the specialty of cardiothoracic surgery. Other health policy issues have also required an STS health policy response, including medical malpractice reform, a markedly increased emphasis on quality and outcomes, and more recently the dissemination of new transcatheter valve technology. Nicholas T. Kouchoukos, MD (Fig 3), reviewed many of these controversial issues in his presidential address in 1999 [8]. The remainder of this chapter will briefly review each of these issues and describe the health policy responses of the cardiothoracic surgical community. This effort has been led by STS with support from AATS. A major focus for the health policy efforts of the Society has been the Medicare system. It is particularly noteworthy that two of the leading causes of death in the Medicare patient population, atherosclerotic cardiovascular disease and lung cancer, are often treated by cardiothoracic surgeons, and Medicare patients thus comprise a large part of many cardiothoracic surgeons’ practices. Prior to 1989, Medicare reimbursement for physician services was determined by “usual and customary” charges for each physician service in the community [7]. In response to rapidly rising Medicare costs and to a perception that specialty services were being reimbursed at disproportionately higher rates than primary care services [9], the RBRVS system [9] for Medicare reimbursement was adopted under OBRA 1989. During the implementation of OBRA 1989, the Physician Payment Review Commission recommended that the “opportunity costs” incurred by specialists for the extended periods of training required for this specialty training would be removed from the original Hsaio methodology for calculation of relative values for procedures [9]. The result was the first of a series of efforts to

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Fig 2. Sidney Levitsky, MD.

reduce reimbursement to cardiothoracic surgeons over the subsequent 2 decades. After this legislation was enacted, the American Medical Association (AMA) and Medicare agreed that the AMA would establish a Relative Value Update Committee (RUC) to refine the initial values for physician work determined in the Hsaio study and update the RBRVS to account for new treatments and changes in patient populations [7]. A new RUC process, centered around surveys of practicing physicians and using “magnitude estimation” with respect to a set of “reference services,” was established and continues to the present day for most RBRVS code valuations. All specialties recognized by the American Board of Medical Specialties or whose services accounted for “high” percentages of Medicare expenditures were given seats at the RUC. Dr Miller was the first STS representative to the RUC, followed in later years by Timothy Gardner, MD (1993–1996), Dr Mayer (1996–2005), and Peter K. Smith, MD (2006–present). In addition, a parallel STS Committee on Coding and Nomenclature (now the Workforce on Coding and Reimbursement) was formed in 1991 to identify new cardiothoracic surgical services that required new procedure codes. The committee also was charged with revising existing codes to be consistent with current practice and then shepherding the codes for these services through the AMA Current Procedural Terminology (CPT) code approval process. Drs Levitsky, Naunheim, and Smith have chaired this Committee/Workforce since 1991. In addition, several consultants hired by STS have provided support for CPT and RUC activities, including Jeanne Fitzgerald Dolak, former STS Assistant Executive Director Donald A. Turney, and Julie Painter, MBA. For most of this interval, the dominant approach taken by the representatives to the RUC was to attempt to prevent or mitigate the continuous downward pressures

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Fig 3. Nicholas T. Kouchoukos, MD.

on reimbursement for cardiothoracic surgical procedures that had begun with the initial Physician Payment Review Commission decision on opportunity costs. These pressures reinforced the initial perception that highly complex procedures were over-reimbursed [9]. In addition there was ongoing emphasis on the budget-neutral constraints of the RBRVS legislation (OBRA 1989) which limited annual increases in aggregate Medicare physician payments under Part B to $20 million per year. Under this budget-neutrality system, introduction by any specialty of any new codes into the fee schedule that resulted in aggregate payment increases above $20 million would require reductions in the Medicare fees for all other services in the fee schedule. In addition, OBRA 1989 required that Medicare review the entire physician fee schedule every 5 years beginning in 1995. The incentives and disincentives under this budget-neutral system have been likened [10] to the game theory “tragedy of the commons” described by Schelling in which “people so impinge on each other in pursuing their own interests that collectively they might be better off if they could be restrained, but no one gains individually by selfrestraint” [11]. This policy of “staying in our foxholes” [12] regarding RUC valuation of cardiothoracic surgical codes was an attempt to provide damage control, but in 2003 to 2004 the proactive decision was made by the STS Workforce on Coding and Nomenclature and the Health Policy and Relationships Council Operating Board, led by Drs Smith and Mayer, respectively, to utilize the STS Adult Cardiac Surgery Database as an alternative source of data by which cardiothoracic surgical codes would be valued during the 2005 5-year review [13]. This data-driven methodology was accepted by the RUC after prolonged review, and although initially rejected by Medicare, the

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code revaluations were ultimately accepted and resulted in significant corrections to the values for the most commonly performed cardiac surgical procedures [13]. Subsequent criticism by the Centers for Medicare & Medicaid Services (CMS) of this methodology, particularly over concerns that no other specialties have developed similar data sources and “relativity” may not be maintained, has required a retreat into the foxholes and reversion to the traditional “survey methodology” with use of the database as complementary information. Use of the RUC survey process to establish work relative value units (RVUs) for congenital heart surgery began in 1993 and proved less difficult because the vast majority of congenital heart surgery is not paid for by Medicare, thus removing “budget neutrality” considerations; however, the effort has proven worthwhile as more than 75% of US private payers are now estimated to use the Medicare fee schedule as the basis for their fee schedules. For general thoracic surgical procedures, success at achieving more accurate valuations has proven to be more problematic because of budget neutrality considerations and the lesser degree of penetrance by the STS General Thoracic Surgery Database into the thoracic surgical community. In more recent years, the growth of both the General Thoracic Surgery and the Congenital Heart Surgery Databases has now placed them in the position of being statistically reliable data sources for RUC valuation applications, but resistance from CMS is still present. In 1994, subsequent changes to the law governing Medicare physician reimbursement required that the practice expense component of the Medicare fee schedule also be “resource based” [14]. Initially Medicare adopted a “bottom-up” approach in which both direct and indirect costs were estimated through a survey process. An issue of particular consequence to cardiothoracic surgeons was a Medicare decision to exclude the costs associated with clinical staff, including practiceemployed nurse practitioners and physician assistants, from the calculations of staff costs associated with inhospital procedural care. This decision was made on the grounds that these costs were already paid for under Medicare Part A payments to the hospitals. The net effect of Medicare’s first attempt at developing resource-based practice expense values using this bottom-up approach would have resulted in an 80% reduction in practice expense RVUs for a large majority of cardiothoracic surgical procedures with a net payment reduction of approximately 40%. The resulting outcry from the cardiothoracic surgical community, headed by then STS President Robert L. Replogle, MD, led to a special membership assessment ($1,000 per member). The funds raised allowed STS to hire Washington DC health policy consultants and supported Washington visits by numerous STS members to educate their Congressmen and Senators regarding the disastrous impact such changes would have on cardiothoracic surgeons and their patients’ access to care. Congressional pressure ultimately led to revision of the Medicare process for determining practice expense RVUs and significant mitigation of the impact of the implementation of a

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resource-based methodology for determining Practice Expense Relative Value Units (PE RVUs) by the incorporation of a “top-down” approach to PE RVU calculations. The refusal to reimburse cardiothoracic surgeons for the costs for clinical staff who were employed by practices but provided care in the hospital setting was never changed by Medicare, in spite of STS-inspired studies, by both the General Accounting Office and the Office of the Inspector General of the Department of Health and Human Services, which supported the STS position. The STS data indicated at that time that nearly 75% of adult cardiac practices did employ clinical staff who accompanied them to the hospital. Despite these reductions in cardiothoracic surgical and other specialty reimbursement, overall Medicare physician reimbursement has continued to exceed its targets, and the Medicare conversion factor required continued reductions in order to maintain budget neutrality. In 1997, a new formula known as the Sustainable Growth Rate (SGR) was included in that year’s Balanced Budget Act, which tied the aggregate growth in Medicare physician payments to the growth in the Medicare beneficiary population and growth of the US gross domestic product. Since 2003, the SGR formula has required annual reductions in the Medicare Conversion Factor to account for “overspending” in the prior year, although since 2000, Medicare physician payments to cardiothoracic surgeons have remained flat at $800 million per year and have not contributed to the “overspending” [15]. The US Congress has repeatedly delayed the implementation of these SGR-mandated conversion factor reductions, but the “debt” resulting from this overspending has continued to accumulate to its current level of nearly $300 billion, which still must be “paid back” through future reductions in Medicare physician reimbursements unless the law is changed. As early as 2004, the Medicare SGR formula, which prescribes the annual Medicare physician payment update, was “widely recognized as being fatally flawed and, if not greatly reformed, may result in reduced access to beneficiaries” [16]. Congresswoman Nancy Johnson (R-CT), former chair of the House Ways and Means Committee Subcommittee on Health, characterized the SGR as “unsustainable” [17]. Efforts to develop an alternative to the SGR system continue, and a central part of the STS position has been that each specialty should have its own independent conversion factor [10]. With regard to malpractice reform, efforts have been less successful. In 2003-2007, when the Republican Party controlled both the US House and Senate as well as the White House and with William H. “Bill” Frist, MD (R-TN), a cardiothoracic surgeon and STS member, as Senate majority leader, the Society heavily engaged with Doctors for Medical Liability Reform in an attempt to influence federal tort reform legislation. During the tenure of STS President Robert A. Guyton, MD, STS contributed over $1 million to these efforts. A special assessment on its membership raised half of these funds. A bill modeled on the California Medical Injury Compensation Reform Act of 1975 was passed in the US

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House of Representatives in several of these years, but the legislation was filibustered by Democrats in the US Senate where the Republican Party did not have the two-thirds majority required to overcome the filibuster. Beginning with the 1998 report of the Presidential Advisory Commission on Consumer Protection and Quality in the Health Care Industry [18], followed shortly thereafter by the Institute of Medicine’s reports To Err is Human [19] and Crossing the Quality Chasm [20], there was considerable pressure placed on the medical profession and hospitals to focus on the quality of outcomes of health care services. By that time, the STS National Database was already well-developed. In his 1991 editorial in The Annals of Thoracic Surgery titled, “The STS National Database: Alive, Well, and Growing” [21], the first leader of the STS database effort, Richard E. Clark, MD, had presciently noted the potential importance of databases in the health policy arena: “The full development of a truly representative database will demonstrate to the public, federal and state governments, and our peers that STS is the nation’s leader in developing measures and methods for constantly striving to assess and improve care for our patients.” In response to the increased governmental focus on health care quality and outcomes, the STS advocacy effort was able to successfully point to its risk-adjusted comprehensive database experience and the associated improvement in outcomes. STS became the “poster child” for professional society quality efforts in the eyes of the US Congress and health care policy makers. When approached by another surgical group regarding its quality efforts, Congressman Fortney “Pete” Stark (D-CA) is reported to have said, “Why don’t you just do what the STS has done?” [22]. These increasing efforts to influence the federal legislative and executive branches led to the retention of government relations staff to support the Society in Washington, DC. Robert Wilbur, PhD, was the first such staff member, working as an employee of Smith, Bucklin and Associates, the firm that provided general association management services to STS from 1969 until 2002. Dr Wilbur served the Society from 1979 until his retirement in December 2003. A dedicated STS office in Washington was established in 2004, under the direction of new STS Director of Government Relations J. Michael Hogan, who remained in that position until he was succeeded by Phillip A. Bongiorno in 2008. Over the years, the STS Government Relations staff has served as “boots on the ground” in Washington and established important contacts and relationships with legislative and White House staff that have resulted in STS members testifying before House and Senate Committees and even participating in a meeting with President George W. Bush during his first term. More recently STS has been successful in the federal regulatory arena, most notably in the area of new transcatheter valve technology. In 2011, then STS President Michael J. Mack, MD, and First Vice President Jeffrey B. Rich, MD, worked closely with the leadership of the American College of Cardiology (ACC) to persuade both the Food and Drug Administration and

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development of a position paper and a subsequent formal oral presentation by Timothy J. Gardner, MD, to the Breaux-Thomas Bipartisan Medicare Reform Commission in 1998. The development of this position paper was led by Paul N. Uhlig, MD, a Kansas cardiothoracic surgeon and member of what was then the STS Professional Affairs Committee, who had followed in Dr Matloff’s footsteps, receiving an MPA from the Kennedy School. Advocacy for STS members and cardiothoracic surgical patients has been among the most important objectives of the Society, and in the current era of health care reform, it will remain so for the foreseeable future. The authors of this chapter would contend that continued engagement of practicing cardiothoracic surgeons in the advocacy process will be essential for the benefit of the profession and, ultimately, our patients.

References 1. Ellison RG. Significant events in the history of The Society of Thoracic Surgeons. Ann Thorac Surg 1972;14:577–604. 2. Samson PC. A new specialty surgical society: La Raison d’Etre. Ann Thorac Surg 1965;1:1–2. 3. Roe BB. Whither in maturity? Ann Thorac Surg 1973;15:553–64. 4. Kay EB. Presidential Address 1974: I. Professional Standards review organizations and their implications for physicians; II. Thromboembolism on mitral valve prosthesis. Ann Thorac Surg 1974;18:105–21. 5. Martin A, Lassman D, Whittle L, et al. Recession contributes to slowest annual rate of increase in health spending in five decades. Health Aff (Millwood) 2011;30:11–22. 6. The Sustainable Growth Rate System. In: Assessing alternatives to the sustainable growth rate system: MedPAC Report to the Congress. March 2007, 11–13. 7. The Roots of Medicare’s RBRVS Payment System In: Smith S, ed. Medicare RBRVS: The Physicians’ Guide 2012. Chicago: American Medical Association; 2012. chapters 1-3:3–25. 8. Kouchoukos NT. Cardiothoracic surgery in the new millennium: challenges and opportunities in a time of paradox. Ann Thorac Surg 2000;69:1303–11. 9. Hsiao WC, Braun P, Dunn D, Becker ER, DeNicola M, Ketcham TR. Results and policy implications of the resourcebased relative-value study. N Engl J Med 1988;319:881–8. 10. Mayer JE. Is there a role for the medical profession in solving the problems of the American health care system. Ann Thorac Surg 2009;87:1655–61. 11. Schelling TC. Micromotives and macrobehavoir. New York: W.W. Norton & Company; 1978:111. 12. Orringer MB. Unity and participation: embracing counterintuitive survival skills. Ann Thorac Surg 2002;74:3–12. 13. Smith PK, Mayer JE Jr, Kanter KR, et al. Physician payment for 2007: a description of the process by which major changes in valuation of cardiothoracic surgical procedures occurred. Ann Thorac Surg 2007;83:12–20. 14. Major components of the RBRVS payment system In: Smith S, ed. Medicare RBRVS: The Physicians’ Guide 2012. Chicago: American Medical Association; 2012. Chapters 4-8: 26–79. 15. Alhassani A, Chandra A, Chernew ME. The sources of the SGR “Hole.” N Engl J Med 2012;366:289–91. 16. Harrington P. Perspective: quality as a system property: section 646 of the Medicare Modernization Act. Health Aff (Millwood); 2004. Suppl Variation:VAR136–9. 17. Thomas B. Strengthening Medicare for future generations. In: Advisory from the Committee on Ways and Means, Subcommittee on Health, September 22, 2005 No. HL-9. Available at https://bulk.resource.org/gpo.gov/hearings/ 106h/65698.txt. Accessed August 21, 2013. ˇ

Fig 4. Jack M. Matloff, MD.

CMS to adopt criteria, proposed jointly by STS and the ACC, for health care institutions to qualify for Medicare reimbursement for the clinical use of these transcatheter devices. Later, STS and ACC efforts helped to create a rational process for the dissemination of transcatheter aortic valves. A vital factor in the Society’s ability to engage in activities related to health policy and advocacy was the experience of a number of STS members who attended executive programs at the Kennedy School of Government at Harvard University, beginning in 1996. These courses were conceived and designed by Jack M. Matloff, MD (Fig 4), who had acquired a Masters in Public Administration during a sabbatical year in the late 1980s. The tuition for these courses was partly supported by grants from the Thoracic Surgery Foundation for Research and Education. More than 200 cardiothoracic surgeons attended one or more of these courses over the next several years. The Kennedy School experience resulted in a cadre of members who had acquired knowledge and experience in the legislative and health policy process and were prepared to “go to the Hill” to educate legislators and their staffs regarding important health policy issues. Every STS President between 1996 and 2008 attended the Kennedy School course, as did all of the leaders of the STS health policy-related committees and workforces. Since 2002, STS and the American College of Surgeons have offered an annual scholarship to underwrite attendance at the Executive Leadership Program in Health Policy and Management at Brandeis University. These courses have provided participants with a more complete understanding of the “big picture” issues in health care. This understanding has manifested itself in numerous ways. One notable example was the

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18. Quality first: better health care for all Americans. A Report of the President’s Advisory Commission on Consumer Protection and Quality in the Health Care Industry. 1998. 19. Kohn LT, Corrigan JM, Donaldson MS, eds. To err is human: building a safer health system. Institute of Medicine Report. Washington DC: National Academy Press; 2000.

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20. Committee on Quality of Health Care in America. Crossing the quality chasm: a new health system for the 21st Century. Institute of Medicine Report. Washington DC: National Academy Press; 2001. 21. Clark RE. The STS National Database: alive, well, and growing. Ann Thorac Surg 1991;52:5. 22. Eastman, EB. Personal communication with JE Mayer, 2009.

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