WISeR than What?

The Trump Administration’s Planned Attack On Traditional Medicare Is Really Dumb—And Vulnerable In Court

By Jack Hannold

It’s not just Medicaid and Affordable Care Act (ACA) subsidies that are under attack. The Trump administration is also poised to begin an assault on traditional, fee-for-service Medicare next year, and hardly anyone has heard about it.

On June 27, the Centers for Medicare and Medicare Services (CMS) announced a pilot program that would require prior authorization (PA in CMS speak) for a list of 15 medical procedures. The program is called the Wasteful and Inappropriate Service Reduction Model. Their cynical acronym for it is WISeR. Here are the important points:

• The program is scheduled to be in operation in six states—Arizona, New Jersey, Ohio, Oklahoma, Texas and Washington—for six years, from January 1, 2026 through December 31, 2031.

• The program will require prior authorization for certain procedures—initially for only 15 procedures, though the list will be expanded during the six-year period.

• CMS will hire contractors with “experience with enhanced technology-enabled prior authorization processes” (as in for-profit health insurance, including Medicare Advantage) to administer the program. The contractors will use artificial intelligence (AI) to screen for “inappropriate” treatments.

• Contractors will get a cut of the money they save the Medicare program—an incentive to deny, or at least delay, necessary care. 

The ostensible purpose of WISeR, as outlined in a CMS “fact sheet”, is to “de-incentivize and reduce use of medically unnecessary care” and “focus health care spending on services that will improve patient well-being.” Of course, the real purpose is not only to reduce Medicare spending, but also to make traditional Medicare less attractive both to patients and to health care providers by making it more like Medicare Advantage and other commercial health insurance.

Medicare Advantage (MA) plans have not been good for patients, health care providers or Medicare itself. Patients are often denied care that traditional Medicare would pay for. Doctors are often not paid. And research shows that CMS pays MA plans billions of dollars more than it would be paying providers directly if MA patients were enrolled in traditional Medicare.

How can that be? It’s because CMS pays MA plans more for sicker patients, and MA plans pressure doctors to “upcode” diagnoses so that patients can be classified as sicker than they really are.  Then CMS pays the MA plans more for those patients. It’s ongoing scandal.

So why would CMS want to make traditional Medicare in some states more like Medicare Advantage? Because Republicans want to destroy traditional Medicare—not only because they object to any program the benefits ordinary Americans, but also because the success of Medicare is irrefutable, empirical evidence that a government-operated single payer system can save money while providing superior care.

Despite the dearth of mainstream media coverage, the WISeR plan has not gone entirely unnoticed. On July 16, the American Medical Association sent a letter to CMS opposing WISeR, as did a group of 23 surgical societies. 

Some Democrats in Washington have also opposed WISeR.  A letter signed by 42 Representatives was sent to CMS on July 31, and another from 18 Senators on September 18. But what can Congress do through legislation when both chambers are under Republican control?

Still, the WISeR project might be stopped in court. Both the AMA letter and the Senators’ letter noted that CMS circumvented the required notice and comment period in the rule-making process.

From the AMA letter:

Although CMS frames WISeR as voluntary, physicians in the selected regions cannot avoid its requirements... Calling it “voluntary” does not alter the reality that physicians must either comply with the new workflow or accept slower, more uncertain reimbursement. This functional mandate also raises a statutory concern. Section 1395hh of the Social Security Act calls for notice-and-comment rule-making whenever CMS changes a substantive condition of payment. By introducing the WISeR Model through a single Federal Register notice, the Agency appears to have bypassed that process. The AMA is concerned that physicians and other stakeholders were not given the opportunity to review and comment as the statute envisions.

If you go to the July 1 Federal Register notice on WISeR and click on “Public Comments,” you’ll get a pop-up that reads, “This feature is not available for this document.”

A comment period is not just a recommendation or a suggestion. Section 1395hh of the Social Security Act strictly requires a 60-day comment period for any Medicare rule-making.  And SCOTUS has already voided at least one other CMS rule-making on that basis.

In 2019, in Azar v. Allina Health Services (139 S. Ct. 1804), SCOTUS ruled in favor of a group of hospitals and against CMS. That 7-1 decision was written by Neil Gorsuch and joined by John Roberts, Clarence Thomas, Samuel Alito, Elena Kagan and Sonia Sotomayor. All six of them are still on the Court. The late Ruth Bader Ginsburg also joined the majority decision. Only Stephen Breyer, who is now retired, dissented. (Brett Kavanaugh did not participate in the hearing or the vote.)

So the prospects of blocking the implementation of WISeR in court look good, even at the SCOTUS level. But who would be the plaintiff? The AMA or some other medical group? Not likely when the Trump regime is already intimidating the media, universities, corporations and even elite law firms so effectively.

That leaves us with the Democrats—and not the ones on Capitol Hill, who might not have standing. 

We have to look to state Democratic officials, acting on behalf of their constituents. While Ohio, Oklahoma and Texas are hopelessly red hellholes, Arizona, New Jersey and Washington have Democratic governors and attorneys general. 

Officials in those blue states could sue in federal court to stop WISeR.  But will any of them have the courage to do it?