Medicare Doctor Payment Fix Legislation Is Best Vehicle for Sunshine Act Amendments

Feb. 10, 2014 – New legislation put forth last week by Committee leaders in both the House and Senate proposes a change to the Medicare physician payment system and could be a solid vehicle to which the publishing community can attach amendments to the Sunshine Act provisions. Specifically, industry is calling for medical textbooks and peer-reviewed journal reprints to be considered educational materials that do not have to be reported as transfers of value under the Sunshine Act.

“The doc payment bill is our best legislative vehicle for technical amendments that would specifically exclude texts and journal articles from the Sunshine rules,” said Coalition for Healthcare Communication Executive Director John Kamp.

In a nutshell, the Medicare legislation, unveiled Feb. 6, would repeal the “sustainable growth rate” (SGR) that Congress passed as part of a 1997 budget law and introduces a 0.5 percent increase for physicians every year for the next five years as Medicare makes the transition to a quality- or performance-based system. The 1997 SGR provision was widely viewed as unworkable and temporary fixes have been used to delay its effects since it was passed.

Although the new bipartisan legislation – sponsored by leaders of the Senate Finance Committee, the House Ways and Means Committee and the House Energy and Commerce Committee – does not include terms on how the SGR repeal would be financed, it appears to have support from many members of Congress as well as physician groups. As such, this legislation would be ripe for amendments that would clarify that textbooks and reprints are educational in nature and actually support high-quality patient care.

In January, Centers for Medicare & Medicaid Services (CMS) Administrator Marilyn Tavenner responded to a letter from 23 congressmen voicing their disagreement with the government’s decision to include textbooks and scientifically peer-reviewed medical journals as transfers of value reportable under the Sunshine Act (see related story: Tavenner stated that although CMS agrees that textbooks and medical reprints are educational, “we do not believe these materials fall within the statutory exclusion” of the Act.

Kamp is hopeful that technical amendments can be added to the new Medicare legislation and will move forward, but until that happens, he said, “the publishing community also is considering the possibility of filing a lawsuit. We simply must explore all options.”