MSSNY eNews: August 5, 2020 – Gov. Rolls Back Med Liability Protections
Cuomo Signs Bill to Roll Back Medical Liability Protections
Gov. Andrew Cuomo signed a bill that would reverse some of the medical liability protections provided to doctors, hospitals and nursing homes during the pandemic.
The bill was opposed by lobbying groups representing the health care industry as potentially adding to medical malpractice costs after workers risked their own health to treat Covid-19 patients. The law, which will be applied prospectively, reduces the level of legal immunity for doctors treating non–Covid-19 patients whose care is affected by the pandemic.
Hospitals and doctors had sought that cover as they were asked to take dramatic steps to respond to the pandemic, such as converting non-clinical spaces into treatment areas and asking doctors and nurses to work outside their specialty areas.
“We pray that such a drastic situation will not come again, but if it does, many physicians will again find themselves with the unimaginable choices of triaging which patients are to receive care first, knowing full well that this new law means that the ‘wrong choice’ could result in that physician losing everything they own to a lawsuit,” Dr. Bonnie Litvack, president of the Medical Society of the State of New York, said in a statement.
The Legislature passed the bill in late July following anger among lawmakers that the provisions protected providers, particularly nursing homes, at a time when patients were vulnerable. During Monday’s joint legislative hearing on Covid-19, state Sen. Julia Salazar raised the issue to state Health Commissioner Dr. Howard Zucker, noting the case of Sha-asia Washington, a 26-year-old woman who died during childbirth at NYC Health + Hospitals/Woodhull.
“Is it acceptable that her care team has blanket legal immunity and that her family doesn’t have any recourse?” Salazar asked. Zucker said the budget provision had not shielded doctors who commit egregious acts from lawsuits.
The state would not “allow any kind of egregious behavior to happen whether it’s in a hospital, nursing home or anywhere. That is the premise long before coronavirus and will be long after coronavirus is gone,” he said. “The objective here was to make sure that those who were working there would be able to provide the care while we were in the upsurge of an absolutely unbelievable pandemic, which is still going on.” (Crains, Aug 5)
Statement of MSSNY President Dr. Bonnie Litvack, in Reaction to Governor Signing into Law Rolling Back COVID-19 Liability Protections
“We are deeply concerned with the consequences of the significant narrowing of these liability protections, particularly when there remains a very real possibility of a second surge of cases this fall. It will put our physicians and other health care workers, who not long ago were regularly lauded as ‘heroes’, into even more extraordinarily challenging circumstances. During the height of the pandemic, in many downstate hospitals, physicians and physicians in training were regularly being asked to provide health care services outside of their areas of expertise to help manage the overwhelming patient flow. They did so because of their dedication to helping their patients.
We pray that such a drastic situation will not come again, but if it does, many physicians will again find themselves with the unimaginable choices of triaging which patients are to receive care first, knowing full well that this new law means that the “wrong choice” could result in that physician losing everything they own to a lawsuit. Moreover, this narrowing of these liability protections also puts a physician at much greater risk of a lawsuit if the state once again requires the postponement of elective surgeries to preserve resources for patients with Covid-19. This is a grossly unfair position in which to be placed.
We are very concerned that the practical effect of this legislation will be that hospitals will face far more difficulties in attempting to manage a huge influx of patients in the event of a second surge.
Governor Cuomo: August 4 Report
The numbers here in New York continue to remain low, with total hospitalizations at 568, down from the April peak of nearly 20,000. For the third straight day in a row, there were no reported COVID deaths in New York City. Yesterday, the State conducted 70,993 tests, of which 746, or 1.05%, were positive — a positive rate that has hovered at around 1% for weeks. While we have worked hard to achieve this progress, we need to work just as hard to maintain it.
Video of the Day: NYS released their third Mask Up America PSA. Watch it here.
MSSNY Survey on COVID-19 Testing Delays
Recently, New York Governor Cuomo had an op-ed in the New York Times that touted the results of labs operating in New York State whereby 85% of the lab tests took a median of 2 days to complete. We have heard anecdotes from physicians regarding instances where it is taking far longer. As we continue to dialogue with the New York State Department of Health and Governor’s office regarding addressing testing delays, would you place take just a few minutes to complete this survey?
CDC: Polio-Like Condition in Kids Likely to Spike in Coming Months
Based on previous trends, cases of acute flaccid myelitis, a polio-like condition in children, may spike in the U.S. between August and November, a new CDC report shows.
Acute flaccid myelitis is a serious neurologic syndrome that affects mostly children and is characterized by the acute onset of limb weakness or paralysis. The report, published Aug. 4, includes an analysis of data from 238 patients with confirmed acute flaccid myelitis during 2018.
A majority of the patients (86 percent) experienced the onset of the condition between August and November. Most (92 percent) had prodromal fever, respiratory illness, or both, beginning a median of 6 days before experiencing limb weakness.
Overall, 98 percent of patients were hospitalized, 54 percent were admitted to an intensive care unit, and 23 percent required endotracheal intubation and mechanical ventilation.
Another peak acute flaccid myelitis year is anticipated this year, but it is unclear “whether or how the COVID-19 pandemic and recommended social-distancing measures will affect” trends, the report states.
As of July 31, there have been 16 confirmed cases of acute flaccid myelitis in 2020. There have been 633 confirmed cases since CDC began tracking the condition in August 2014. (Becker’s Hospital Review, Aug. 7)
2021 Medicare Payment Rule Proposes Office Visit Payment Increases, but Steep Conversion Factor Cut
On August 3, 2020, CMS issued the proposed 2021 Medicare Part B payment rule. Please see here for a preliminary AMA overview of the 1355-page rule of the highlights of the payment rule. They also issued this press release, noting concerns with the far-ranging changes this rule could impose: “The AMA appreciates that CMS will implement significant increases to the payment for office visits, based on recommendations on resource costs from the AMA/Specialty Society RVS Update Committee (RUC).
Unfortunately, these office visit payment increases, and a multitude of other new CMS proposed payment increases, are required by statute to be offset by payment reductions to other services, through an unsustainable reduction of nearly 11% to the Medicare conversion factor. For this reason, the AMA strongly urges Congress to waive Medicare’s budget neutrality requirement for the office visit and other payment increases. Physicians are already experiencing substantial economic hardships due to COVID-19, so these pay cuts could not come at a worse time.”
Former HHS Officials Explore Vaccine Hesitancy in Black Community — COVID-19 burden for African Americans Will Only Worsen if They Refuse Immunizations
Past and present U.S. Surgeons General, speaking at the National Medical Association’s virtual annual convention, said vaccine hesitancy in the Black community could worsen the disparate impact of COVID-19.
Current Surgeon General Jerome Adams, MD, MPH, who moderated the online discussion Saturday, said he believes that a COVID-19 vaccine will be ready by the end of this year or early next. “But a safe and effective vaccine means nothing if people don’t actually get vaccinated,” Adams said.
Recent public opinion polls found that just under 50% of those surveyed said that they are either “unlikely” to get a COVID- 19 vaccine or “uncertain” about taking one if it were available today, said Vivek Murthy, MD, who served as surgeon general under President Barack Obama.
Studies have shown that African Americans and Latinx people were more skeptical of the measles vaccine, according to the Pew Research Center.
The Black community hasn’t forgotten the infamous Tuskegee study and remains distrustful of the medical establishment, noted Louis Sullivan, MD, secretary of Health and Human Services under President George H.W. Bush and is founding dean of the Morehouse School of Medicine in Atlanta.
Partnering with Churches, Celebrities
Adams asked his predecessors — also including David Satcher, MD, surgeon general in the Clinton administration — what can be done to increase buy-in for a COVID-19 vaccine among African Americans. Murthy encouraged partnerships with “messengers” inside the communities that health professionals are trying to reach. “We’ve got to do that right now,” said Murthy, even before a vaccine has been developed.
Satcher said that during his tenure, the government partnered with a national group of Black churches to promote immunizations in children before age 2 — rates of which were then below 30% overall, and even lower in the Black community.
Sullivan said there needs to be more diversity in the healthcare workforce — by gender, race, and ethnicity — to improve communication and trust among people of color.
“More trust leads to more understanding and results in better adherence to health recommendations, such as utilization of vaccines, of prescription medicines and other health behaviors,” he said.
Duane M. Cady, MD, MSSNY Past President, Past Chair AMA Board of Trustees, Died August 3
Duane M. Cady, MD, MSSNY Past President, and a general surgeon of more than 30 years New York died at home on August 3 in Lafayette, NY. Dr. Cady was elected to the AMA Board of Trustees in June 2003. He became chair in June 2005 and served on the board’s executive committee. Dr. Cady is also a past president of the AMA Foundation. Dr. Cady’s AMA responsibilities have included membership on the Council on Medical Service (CMS), chair of the CMS Committee on Medical Payments and Review, as well as the CMS Committee on Health Care Access. Dr. Cady served as medical staff president, chair of the department of surgery and member of the board of trustees at St. Joseph’s Hospital in Syracuse, N.Y.
Dr. Cady is also past president of the Onondaga County Medical Society. He was appointed by Gov. George Pataki as chair of the New York State Medicaid Managed Care Advisory Council and was a member of the governor’s Task Force on Hospital Reimbursement Reform and the New York State Public Health Council’s pain management task force. Dr. Cady received a bachelor’s degree in chemistry at Atlantic Union College in Lancaster, Mass., and a medical degree at Loma Linda University School of Medicine in Loma Linda, Calif. Dr. Cady is a former captain of the U.S. Army Medical Corps and served as an Army surgeon in Vietnam.
He and his wife of 65 years, Joyce, have five grown children and 10 grandchildren. A private Celebration of Life will be held in the Fall. Contributions in his memory may be made to the Duane and Joyce Cady Scholarship, AMA Foundation, 330 N. Wabash Ave., Suite 38300 Chicago, IL 6061-5885. The link for online donations is https://amafoundation.org/mssny.
An overnight camp for children and teens in Georgia experienced a large COVID-19 outbreak the first week it opened, demonstrating how quickly the virus can spread among youth, according to an MMWR article.
On June 17, staff members arrived at the camp for orientation, and campers arrived on June 21. The camp followed some COVID-19 mitigation guidelines, but it did not require masks for campers and did not make sure doors and windows were open for increased ventilation. On June 23, a staff member left camp after developing symptoms and later tested positive for SARS-CoV-2. Campers began departing the next day, and the camp closed on June 27.
Nearly 600 Georgia residents attended the camp, including staffers. Of the 344 who were tested, 76% were positive. Researchers calculate an overall attack rate of 44%, but they say this is likely an underestimate. The attack rate was highest among the youngest campers (51% for those aged 6 to 10 years), staff members (56%), and people who stayed in the largest cabins (53% for cabins that held 16 to 26 people).
“Relatively large cohorts sleeping in the same cabin and engaging in regular singing and cheering likely contributed to transmission,” the authors write.
In other COVID-19 news:
- For patients with COVID-19 who may be candidates for dexamethasone, the authors of a JAMA viewpoint say that ivermectin is a reasonable presumptive treatment for those who have moderate-to-high risk for Strongyloides infection but haven’t been previously tested or treated. Strongyloides hyperinfection or dissemination syndrome is frequently fatal and is often associated with use of an immunosuppressive medication (e.g., corticosteroid) in people who have unrecognized chronic infection with the Strongyloides roundworm. People at risk for Strongyloides infection include those who have lived in endemic areas (e.g., Asia, Oceania, sub-Saharan Africa, South America, Caribbean, Middle East, North Africa, Indian sub-continent). A history of rural residence and labor associated with soil exposure are also risk factors. The authors caution that there are no data to support the use of ivermectin in COVID-19 management, and no group currently recommends it.
- Clinicians can be reimbursed for counseling patients who are being tested for COVID-19 about the need to self-isolate before they develop symptoms and the need for other members of their household to be tested, the Centers for Medicare and Medicaid Services and the CDC announced.
- The FDA has authorized the first semi-quantitative tests to display estimated, rather than precise, levels of antibodies to SARS-CoV-2. An FDA official said, “Patients should not interpret results as telling them they are immune, or have any level of immunity, from the virus.”
MMWR article on youth camp (July 31)
JAMA viewpoint on dexamethasone and Strongyloides hyperinfection/dissemination
CDC news release on reimbursement (July 30)
FDA news release on antibody tests (Jul 31)
NEJM Journal Watch COVID-19 page (August 1)
NEJM COVID-19 page (July 29)
Now Available: 2019 MIPS Targeted Review
If you participated in the Merit-based Incentive Payment System (MIPS) in 2019, you can now review your performance feedback, including your MIPS final score and payment adjustment factor(s), on the Quality Payment Program website.
Your final score will dictate the payment adjustment you will receive in 2021, with a positive, negative, or neutral payment adjustment being applied to the Medicare paid amount for covered professional services furnished by a MIPS eligible clinician in 2021.
MIPS eligible clinicians, groups, and virtual groups (along with their designated support staff or authorized third-party intermediary), including APM participants, may request CMS to review the calculation of their 2020 MIPS payment adjustment factor(s) through a process called targeted review.
When to Request a Targeted Review
If you believe an error has been made in your MIPS payment adjustment factor(s) calculation, you can request a targeted review until October 5, 2020. Some examples of previous targeted review circumstances include the following:
- Errors or data quality issues for the measures and activities you submitted
- Eligibility and special status issues (e.g., you fall below the low-volume threshold and should not have received a payment adjustment)
- Being erroneously excluded from the APM participation list and not being scored under the APM Scoring Standard
- Performance categories were not automatically reweighted even though you qualify for automatic reweighting due to extreme and uncontrollable circumstances
Note: This is not a comprehensive list of circumstances. CMS encourages you to submit a request form if you believe a targeted review of your MIPS payment adjustment factor (or additional MIPS payment adjustment factor, if applicable) is warranted.
How to Request a Targeted Review
You can access your MIPS final score and performance feedback and request a targeted review by:
- Going to the Quality Payment Program website
- Logging in using your HCQIS Access Roles and Profile System (HARP) credentials; these are the same credentials that allowed you to submit your MIPS data. Please refer to the QPP Access Guide for additional details.
CMS may require documentation to support a targeted review request that is under our evaluation. If the targeted review request is approved, we may update your final score and/or associated payment adjustment (if applicable), as soon as technically feasible. Please note that targeted review decisions are final and not eligible for further review.
For more information about how to request a targeted review, please refer to the 2019 Targeted Review User Guide. For more information on payment adjustments please refer to the 2021 MIPS Payment Adjustment Fact Sheet.
Contact the Quality Payment Program at 1-866-288-8292 or by e-mail at: QPP@cms.hhs.gov. To receive assistance more quickly, please consider calling during non-peak hours—before 10:00 a.m. and after 2:00 p.m. ET.
Elegant, Custom Built Home with Unparalleled Craftsmanship – Rhinebeck, NY
Set on 10.6 acres in one of the most sought-after neighborhoods in Rhinebeck, this stunning home borders Drayton Grant Park at Burger Hill (a conservation land and the highest point in Rhinebeck). Features beautifully landscaped gardens with sweeping hilltop views and a well established vegetable garden and barn. This handsome home is generously proportioned throughout, with an inviting foyer entry with tastefully designed staircase, millwork, high ceilings, cherry wood floors and custom windows.
A world class kitchen with a marble counter-topped island, enjoys both a cozy fireside seating area perfect for winter evenings, and glass doors in the hexagonal eat-in-kitchen opening onto the expansive stone terrace for three season enjoyment and entertaining.
A luxurious Master suite, with high vaulted ceiling design, his and hers walk-in closets and a gorgeous master bath with cast iron clawfoot tub. The second floor also includes two spacious bedrooms with generous closets and 2 full bathrooms, An additional large sitting room/office could easily make a lovely fourth bedroom. Lower level features a media room, exercise room, bar, wine cellar and full bathroom. Additionally there is a two story barn equipped with water and electricity.
Includes waiting room, 2 exam rooms and room for medical assistants. Flexible schedule. Call Bianca at 212-327-1851.
For Sale: 715 Park Avenue
Medical office, 1,800 sq. ft. Rectangular, 11 1/2 ft ceilings, street level access. Private entrance on 70th Street, side of the building. Windows on Park Avenue and 70th Street. Excellent office space for plastic surgeon, dermatologist or dental practice. Central air conditioning, high voltage electric service, two bathrooms. *Sale could include active Cardiac / Medical Practice. Please contact Janet @ 212-288-5468.
Plastic surgery office and/or quad A – certified operating room available for rent. We welcome you to tour our facility, where safety and luxury are combined in the most prime location on the upper east side. We assure you will be delighted by what you discover. We take pride in our facility, where your patients’ safety and satisfaction are our number one priority.
- Fully equipped operating room perfect for a board-certified plastic surgeon
- Pre-op and recovery areas
- A bright and modern waiting area
- 3 consultation rooms, administrative room, kitchenette, and 2 bathrooms
- Full day office rental per week / O.R. rental per case
For inquiries please call 212.737.8700, email email@example.com