Coalition Comment to CMS: Keep CME Exemption Under Sunshine Act

Sept. 2, 2014 – The Coalition for Healthcare Communication’s comment to the Centers for Medicare & Medicaid Services (CMS) asks the agency to retain the continuing medical education (CME) exemption that was established in the Physician Payment Sunshine Act final rule. CMS had floated eliminating that exemption in the physician fee schedule proposed rule, which was published July 11.

“It is the CHC’s position that CMS should retain the CME exemption from Sunshine Act reporting and allow industry members to provide grants that accredited CME providers can utilize to support programs and compensate speakers of the CME provider’s choosing,” the Aug. 29 comment states.

The Coalition’s comment also cites the recent letter sent to CMS Aug. 5 by more than 100 medical associations and medical specialty groups, and includes that letter’s statement that revoking the CME exemption “would have a significant, chilling impact on [CME], which runs contrary to the public interest.”

“Pursuing a revocation of the CME exemption would impose an additional Sunshine Act reporting burden on both physicians who participate as CME speakers and physicians and medical professionals who attend these educational events,” said Coalition for Healthcare Communication Executive Director John Kamp. “Because CME programs help to keep physicians up to date on best practices and treatment innovations, it is important for the public health that the reporting exemption be maintained as established in the Sunshine Act final rule,” he said.

Specifically, the Coalition suggests that CMS can bolster the CME exemption by stipulating that:

  • Accredited bodies must be recognized by a federal or state government to offer CE or CME programs;
  • CME grantors must not pay speakers directly;
  • CME grantors must not recommend speakers or faculty for educational programs; and
  • CME grantors must not select or recommend attendees.

The CHC also recommended that CMS clarify that CME attendee tuition and materials are excluded from Sunshine Act reporting, and that no application of the “awareness” standard applies under Section 403.902.

However, if CMS chooses to revoke the exemption and rely instead on the “indirect payment” provision in the final rule to cover industry grants for CME, as proposed in the physician fee schedule proposed rule, the Coalition advises CMS to rework the “awareness” standard to measure awareness of speakers, faculty and attendees at the time of the grant. “Indeed, ‘awareness’ is not the issue. Instead the issue is control of program content and choice of speakers as implemented by the ACCME,” the Coalition asserts in the letter.

“Attempting to preserve a window of awareness of [CME speakers or attendees] after the funds have been provided creates an unworkable standard whereby companies purportedly – and unrealistically – would have to put their heads in the proverbial sand to try to avoid hearing or reading about CME events in their community or industry,” the CHC comment states.

In closing its comment, the Coalition states that “eliminating the CME exemption … would create unnecessary and significant obstacles to providing important educational opportunities to physicians and other medical professionals who care for the nation’s patients, which is not a positive outcome.”