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Trusting Government: A Tale Of Two Federal Advisory Groups



February 2nd, 2012
 
by David Kibbe and Brian Klepper

Americans increasingly distrust what they perceive as poorly run and conflicted government. Yet rarely can we see far enough inside the federal apparatus to examine what works and what doesn’t, or to inspect how good and bad decisions come to pass. Comparing the behaviors of two influential federal advisory bodies provides valuable lessons about how the mechanisms that drive government decisions can instill or diminish public trust.

The Health Information Technology Policy Committee (HITPC) advises the Office of the National Coordinator for Health Information Technology (ONC) on matters pertaining to the ARRA/HITECH legislation. ONC is responsible for deciding how to spend the roughly $25 billion Congress authorized in 2009 to stimulate doctors’ and hospitals’ adoption of electronic health records (EHRs) and other health information technologies. HITPC, a 24-member Federal Advisory Commitee (FAC) as defined and governed by the Federal Advisory Committee Act (FACA), makes recommendations to ONC on many topics – from certification of EHR technology and privacy/security regulations to governance and oversight measures for the Nationwide Health Information Network – that affect how that money will be spent, who is eligible to receive it, and what rewards and penalties will apply in the process.

The Relative Value Scale Update Committee (RUC) is far more influential. Over the past twenty years this group of 29 physicians convened by the American Medical Association (AMA) has been CMS’ primary advisor on how Medicare should value doctor visits and procedures. Many Medicaid and commercial health plans follow Medicare’s lead on payment, so the RUC’s influence on the $2.7 trillion health care economy is sweeping. While the RUC is not formally a FAC, it has been challenged as being a “de facto” FAC, a designation that has legal precedent.

Both HITPC and the RUC are comprised of volunteers. But the similarity stops there. A chasm separates their behaviors as advisory bodies, primarily because HITPC operates in the open and under public view, whereas the the RUC acts virtually in secret.

HITPC’s formal organization as a FAC obligates it and more than a thousand other similarly constituted entities to operate under FACA’s strict management and reporting rules, which seek to ensure that the regulatory agencies’ activities are in the public rather than the special interest. HITPC must have balanced representation in its membership. Its proceedings must be transparent, and its analytical methodologies must be scientifically credible. Indeed, FACA established a federal database that incorporates the proceedings of HITPC and all other federal advisory committees, and that facilitates government-wide advisory committee management and accountability audits.

HITPC is scrupulously compliant with FACA. Its mission and goals, membership roster, meetings schedules, and all documents issued by the committee are available to the public on its website. All HITPC meetings are open to the public and are broadcast over the Web or by teleconference. ONC makes audio recordings available within a day following a meeting, and a draft transcript is posted within a week. HITPC members must declare conflicts of interest, and must recuse themselves from votes that involve real or apparent conflicts.

By contrast, and despite its immense influence over Medicare and commercial health expenditures, the RUC proceedings are opaque. Its meetings are closed to the public – participation requires an invitation from the Chair – and transcripts are not publicly available. Members vote secretly by electronic ballot, and the AMA discards records of the votes.

Still, CMS has accepted more than 90 percent of the RUC’s 7,000 recommendations since 1991, often without further due diligence.

The RUC is also rife with conflict. Until 2009 the AMA would not reveal the RUC members’ names. While primary care physicians represent some 55% of all doctors, 27 of the RUC’s 29 members are specialists effectively lobbying their specialist societies’ interests. Roy Poses MD, who studies financial conflicts in medicine, recently wrote, “14 of 29 members of the RUC have financial relationships with pharmaceutical companies, biotechnology companies, device companies, companies that directly provide health care, and health care insurance companies.” None of these are publicly disclosed as a condition of RUC membership. Nor is there any publicly available record of whether real or potential conflicts of interest have caused RUC members to recuse themselves from votes.

These two advisory models represent different frameworks for operationalizing federal policy. The RUC’s secretive membership and proceedings hinder scrutiny. CMS near-total reliance on a clandestine special interest group is precisely the kind of governmental behavior that the public no longer trusts.

HITPC’s recommendations occur in the sunshine and are observable in real-time. Important regulatory decisions are forged in an environment of expert opinion, public discourse, and frequent opportunity for comment and debate. They follow FACA’s mandates for openness and broad representation, and offer a path to rebuilding trust that the American people now clearly desire.

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14 Trackbacks for “Trusting Government: A Tale Of Two Federal Advisory Groups”

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2 Responses to “Trusting Government: A Tale Of Two Federal Advisory Groups”

  1. Brian Klepper Says:

    We welcome Dr. Levy’s comments to our article, and we welcome open debate on these issues. As a RUC panelist since 2000, and now the Chair, Dr. Levy can be expected to protect the process. But given the seriousness of this issue and the RUC’s wide-ranging impact on America’s health care system, it makes sense to address her comments in order and place them in context.

    For example, she notes in her comment that “The work of the RUC benefits the entire Medicare system and is done at no cost to taxpayers,” as though the RUC is an altruistic activity. But in a 10/27/12 interview by Joe Eaton of the Center for Public Integrity, published on Kaiser Health News, Dr. Levy is on the record as saying that it is really about each specialty panelist advocating for as big a piece of the Medicare pie as possible. “We assume that everyone is inflating everything when they come in. They are wanting to fight for the best possible values for their specialties.” This makes it clear that the RUC is not primarily about what is in the public interest, for example how best to achieve quality, safety, or equity of care delivery.

    Nor are all specialties allowed to similarly volunteer their efforts, suggesting that the RUC is about about divvying up resources rather than about public service. While some specialities have had permanent seats, others have been denied participation. Those on the outside include the specialty of geriatrics, which focuses on health care for the elderly and which presumably would have something useful to contribute to a program dedicated to that population.

    Her spin on the RUC’s secretiveness is also not entirely accurate. So 300 physicians and CMS representatives attend meetings, and information is available on the AMA’s site. But the RUC’s recommendations directly influence the distribution of public dollars, and the meetings’ proceedings are not available to the public. Here, from the AMA page that Dr. Levy linked to in her comment, is a clear acknowledgement that they’ll control the information:

    “RUC participants, including members, advisors, staff, and other designated specialty society representatives, may access detailed and up-to-date information about the RUC process online. RUC participants must contact AMA staff to access the site.”

    The RUC may have a conflict of interest policy and members may indeed recuse themselves on issues when they have financial relationships with outside interests. We don’t know for sure because no record of this is available to the public. But the facts remain that the RUC is fine with its members having those relationships, and that, in the black box of RUC processes, we’ll just have to take her word that they’re rigorous about preventing financial conflicts. Of course, a reciprocal question would ask why organizations would seek financial relationships with RUC panelists unless they have come to expect a quid pro quo.

    Finally, we congratulate the RUC for voting to add two more primary care seats. But it is reasonable to suspect that this change in the panel’s makeup, which has occurred 20 years after the RUC’s formation and against a backdrop of significant recent public visibility and a legal challenge, might be more a political accommodation than a change of substance. After all, it would now mean that, instead of 2 of 29 members (7%), primary care represents 4 of 31 members (13%) of the RUC’s votes. In other words, the RUC can now argue that it is course correcting without needing to acknowledge that, in the real world, about 35% of physicians practice primary care, and so the panel still vastly under-represents them. Nor will the change in composition alter the balance of power between the RUC’s procedural and cognitive medicine physicians.

    In other words, there is much more to Dr. Levy’s public arguments than she would have us know.

    Perhaps more importantly, Dr. Levy’s comments do not address the primary argument of our blog post, which is that transparency and openness as required by the Federal Advisory Committee Act, and demonstrated by the behavior and accomplishments of the HIT Policy Committee that advises ONC/HHS, helps to create public confidence and trust in government process and resulting decisions. And that we are desperately in need of a government we can trust. And that the RUC serves as a counter-example which only underscores the need for transparency and openness.

    That the AMA and the RUC are reforming some of the practices of RUC, as Dr. Levy says is happening, is a very good thing in our opinion. The RUC has served for two decades as a virtual sole-source federal advisory body, but has not been required to adhere to the public interest rules specified by the Federal Advisory Committee Act. It is critical that, going forward, whatever replaces it should be required to do so.

    David C. Kibbe and Brian Klepper

  2. Barbara Levy Says:

    Barbara Levy, M.D, RUC Chair

    Physicians serving on the RUC bring valuable experience to the complex process of describing the resources used in providing care to patients. The work of the RUC benefits the entire Medicare system and is done at no cost to taxpayers.

    The truth is: The RUC is far from secretive. More than 300 attendees, including all types of physicians and representatives from Medicare, participate in typical RUC meetings. Information on the panel is publicly available, including at http://www.ama-assn.org/go/rbrvs.

    The RUC has a strict conflict of interest policy for both those presenting to the RUC and for members. RUC members would recuse themselves from discussion or voting on any issue related to a potential conflict.

    The RUC is an independent group of physicians from many different specialties, including those in primary care, which will have two new seats on the panel beginning this spring. This change will help the RUC continue to make recommendations to Medicare’s decision makers on the work physicians do to care for an aging population and those with chronic conditions. Adoption of RUC recommendations has resulted in $4 billion in annual increased payments for the services most commonly performed by primary care physicians.

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