Tracking the RUC Lawsuit

Brian Klepper

In early August, six primary care physicians from the Center for Primary Care in Augusta, GA, filed suit against the US Department of Health and Human Services (HHS) and its subsidiary agency, the US Centers for Medicare and Medicaid Services (CMS).

The filing was a critical step in a campaign that David Kibbe MD and I began in January 2011 against the excesses that have arisen from CMS’ inappropriate relationship with the American Medical Association’s (AMA) Relative Value Scale Update Committee (RUC). But the effort was really given life by Paul Fischer, MD, the Augusta physician who brought a focused, practicing primary care perspective to the issue, and Kathleen (Kitty) Behan, the DC-based constitutional attorney who has orchestrated the legal process.

The case’s foundational argument is that the RUC’s near sole-source advisory relationship with CMS has rendered it a “de facto” Federal Advisory Committee (FAC). Therefore the RUC should be subject to the Federal Advisory Committee Act (FACA) rules that govern the behaviors of these entities, seeking to ensure that regulation is shaped in the public rather than the private interest. Even so, over time CMS has accepted more than 90 percent of the RUC’s valuation recommendations without further due diligence. The agencies’ clear failure to require the RUC’s financially conflicted and secretive behaviors to adhere to these requirements has resulted in Medicare payment distortions and excesses that have directly harmed primary care, as well as patients and purchasers.

We believe that this case has profound ramifications that go to the heart of the ways American health care is practiced and the cost crisis that has resulted.

For those who wish to monitor the progress of the suit, here are the first three primary legal documents. If you’re willing to wade into the world of legal argument, you’ll find the volleying both fascinating and compelling.

First is the initial complaint, which lays out the legal argument. Next is the Defendants’ Motion to Dismiss. Third is the Plaintiffs’ Opposition to the Motion to Dismiss.

We will continue to make materials available as the process unfolds.

Thanks for your ongoing interest in this.

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