The Fifth Circuit Court of Appeals has upheld the dismissal of U.S. Anesthesia Partners' (lawsuit against the Department of HHS and CMS, which contested aspects of the Merit-based Incentive Payment System, according to court documents accessed by Becker's.
The lawsuit, filed by USAP's Texas, Florida, and Colorado divisions, challenged the Total Per Capita Cost measure used in MIPS to evaluate clinicians' performance and adjust Medicare reimbursement rates. The measure attributes patient costs to clinicians who have billed for qualifying primary care services.
In 2019, CMS revised the TPCC methodology, excluding certain specialists, including anesthesiologists, from being held accountable for primary care costs. However, non-physician practitioners such as physician assistants and nurse practitioners within these specialty practices remained included in the measure.
USAP argued that applying the TPCC measure to their practices, based on services provided by their non-physician employees, was arbitrary and unfair. They claimed this methodology resulted in unfavorable MIPS scores and significant financial losses in Medicare reimbursements.
A district court initially dismissed USAP's claims, ruling that judicial review was barred under a statute preventing administrative or judicial review of certain aspects of MIPS, including cost evaluations and measure identification. USAP appealed, but the Fifth Circuit Court of Appeals affirmed the dismissal, agreeing that the TPCC measure's attribution methodology was not subject to judicial review.
“USAP is proud of the high-quality anesthesia care our clinicians provide. We’re disappointed the court held it did not have jurisdiction to correct CMS’s miscalculation of our overall MIPS scores based on a primary care cost program that explicitly excludes anesthesia providers," USAP's Chief Quality Officer Richard Dutton, MD, said in a statement shared with Becker's. "It’s important to note that nothing in the court’s ruling undermines USAP’s consistently high MIPS scores for clinical quality and improvement activities. Rather, the court’s ruling highlights that the 10-year-old MIPS program has never worked well for anesthesia clinicians and is even more out of step today. We hope Congress and the new administration look for new ways to reward investments in clinical care that save lives and improve patient outcomes.”