MSSNY eNews: July 24, 2020 – How Soon They Forget They Called Us Heroes

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How Soon They Forget They Called Us Heroes
Despite MSSNY’s best efforts, including several thousand physician contacts to their legislators during this week the New York State legislature passed legislation (S.6678-A/A.7991-A) requiring “all physicians’ practice settings to conspicuously post signage, visible to their patients, directing patients to the office of professional medical conduct’s website for information about their rights and how to report professional misconduct”.

The distrust that will be fostered by legislation would be concerning at any time but passage at this time in the middle of a healthcare crisis is particularly ill timed and harmful on multiple fronts.  Patients are often nervous when they arrive at a physician’s office and even more so now in the middle of a pandemic.  Our staffs are committed to ensuring patients feel welcome, and comfortable upon entering our offices and a prominent sign about how a patient can file a complaint against their physician upon entering the office is counter-productive to initiating and developing a positive, collaborative doctor/patient relationship.

This signage will increase patient anxiety and create unnecessary confusion.  On the physician end it will contribute to increased physician demoralization, further threatening the health and well-being of our physician work force, already under significant stress.

We as physicians and a medical society are committed to ensuring a strong disciplinary process to remove those aberrant practitioners who betray the trust of their patients and their professional oaths.  However, this legislation entirely misses the mark.  This is not re-imaging healthcare in a constructive positive fashion.  This serves to drive a wedge between a doctor and a patient and potentially increase the number of frivolous claims brought to OPMC. We will be urging Governor Cuomo to veto this legislation.

You can join us in this effort by sending a letter to the Governor urging a veto here. 

Bonnie Litvack, MD
MSSNY President

This Week’s MSSNY Podcast

Notes from Governor Cuomo’s Briefing:
OF NOTE: Governor said Congress is looking at August (now) for COVID-related legislation.

COVID:

– Day 146 of COVID
– 650 hospitalizations, 56 lower than yesterday
– 156 total ICU COVID patients
– 9 lives lost on 7/23: 7 in hospitals, 2 in nursing homes
– 76,000 tests completed yesterday, 0.98% positive
– Gov. stated enforcement of safety protocols is improving
– SLA and State Police Task Force conducted compliance checks in NYC yesterday, 37 violations were issued

RESPONSE TO DHS

– Dept. of Homeland Security (DHS) recently issued statement they are dropping opposition to NY’s lawsuit for stopping the Trusted Traveler Program
– This statement cited the amendment of Green Light Law being the reason
– Dept. of Justice (DOJ) then filed a brief stating DHS position was not truthful
– It was found that other states also have Green Light Laws and action taken toward NY to cease Trusted Traveler Program was “punitive” and unjustified
– Gov. stated DHS Secretary Wolf “violated his oath of office” by claiming it was unknown that other states besides NY had Green Light Laws
– Gov. called on U.S. AG Barr to launch an investigation
– Gov. also called for a congressional investigation
– Gov. stated he believes NY entitled to damages

Q&A

– Asked if Gov. is asserting stopping TTP contributed to spread of COVID
– Gov. stated it’s possible stopping the program caused backlogs which contributed to COVID spread
– Gov. again discussed inadequate federal response allowing COVID to reach NY
– Asked if CDC guidelines are consulted for school reopenings
– Gov. stated he looks at CDC guidelines but will open schools if it is safe
– Asked about deadline for budget, potential bill in Congress
– Gov. said Congress is saying August, which is acceptable
– Asked about DOH internal report on nursing homes and why an independent investigation isn’t being conducted
– Gov. said this issue is politically motivated, and facts do not support those politically-charged claims
– Asked about municipal departments of health claiming to be “usurped”
– Gov. said local departments of health can issue guidelines, and counties have “primary responsibility”
– Asked about immunity law for hospitals and nursing homes passed earlier this year
– Gov. stated we asked hospitals to take on burden during COVID, that law made sure they had no liability as a result of those burdens. Law passed yesterday is consistent with that, but specifies they are not relieved of liability for non-COVID related issues.

State Legislature Passes Bill Over Objection of Health Care Groups to Limit COVID Liability Protections
Over the objection of MSSNY, numerous specialty societies, and hospital and nursing home associations, the State Legislature passed a bill this week (S.8835/A.10840) that would limit previously established liability protections prospectively so that it would only apply to care which is provided to patients related to the diagnosis and treatment of a patient with a confirmed or suspected case of Covid-19.

MSSNY worked with the specialty societies to send a letter to the entire Legislature objecting to this measure and will be urging the Governor to veto this bill.  Specifically, we raised concerns that, should there be a second surge, this legislation would eliminate these important protections and unfairly invite lawsuits for care to non-Covid patients that may need to be delayed to prioritize health care resources, as we had to do in March in April.

As noted in this article in the NY Times from Thursday and many other news articles, several legislators and the AARP have been aggressively pushing for legislation to retroactively and entirely eliminate these essential liability protections for health care workers and health care entities that had been enacted in the State Budget adopted in early April.

While the focus of these legislators has been on the several thousand nursing home patients that died during the height of the pandemic, the legislation they seek would invite lawsuits and second guessing of all care provided by physicians in any health care setting.

These essential liability protections were not only applicable for treatment of patients with Covid-19 but also extended to other patients whose care may have been impacted by the Covid emergency response, such as the countless numbers of patients whose scheduled surgery or other treatment was postponed due to the Executive Order prohibiting elective surgery. The State Legislature is planning multiple hearings next month examining the impact of the nursing homes’ response to the pandemic.

Last week, MSSNY President Dr. Bonnie Litvack’s letter to the editor of the Albany Times-Union was published objecting to this short-sighted legislation.

The provisions of the bill that passed this week would eliminate liability protections for care to non-Covid patients based upon “acts or omissions” that occur on or after the effective date of the legislation.  It is not clear yet whether Governor Cuomo will sign or veto this legislation.

Today, the American Medical Association(AMA) sent a joint letter with the American Hospital Association and the American Nurses Association asking Congress to allocate as part of the next COVID-19 relief package at least an additional $100 billion for the emergency relief fund to provide direct funding to front line health care personnel and providers, including physicians, nurses, hospitals and health systems, as they continue to respond to the COVID-19 pandemic.

Please send a letter to the Governor here.

Litany of Adverse Legislation to Expand Damages, Change Scope and Create New Mandates Not Taken Up
While 2 bills strongly opposed by MSSNY passed both Houses of the Legislature this week, there were also a litany of adverse bills that had been on the floor of both Houses or moving in either House that were not passed following MSSNY advocacy together with the specialty societies and other allied groups.  These include bills that would have:

• greatly expanded damages in wrongful death actions (S.4006/S.5612);
• Inappropriately granted optometrists the right to prescribe certain oral medications without proper training and/or documentation of training (S.4035-A/A.1193-C);
• Bypassed recently adopted state regulations establishing criteria for the creation of midwife led birth centers (A.10440/S.8307);
• Mandated co-prescribing of naloxone for many patients on opioid medications (A.5603/S.5150-B)
• Mandated posting in a physician’s office of where a patient can obtain information about Consumer Product Safety Commission recalls (A.2631/S.3583);
• Mandated notification to epileptic patients of the risk of sudden death due to epilepsy (A.7807-A/S.5397-A)
• Mandated reporting to the Statewide Immunization system of a prescription of a rescue inhaler (S.7337/A.10085).

The AMA also sent a sign-on letter with over 100 Federation members to the Centers for Medicare & Medicaid Services (CMS) supporting many of the temporary regulatory waivers that CMS issued in response to COVID-19. However, we express concern about and urge CMS to sunset the waivers involving scope of practice and licensure.

We also affirm our organizations’ support for the physician-led team-based approach to care and vigorously oppose efforts that undermine the physician-patient relationship during and after the pandemic. There has been concern from some physicians who strongly disagree with a recent Joint Commission letter that took the opposing view on the scope waivers. This sign-on letter was already being circulated to the Federation at that time.

AMA Partners with Project N95 to Make PPE Available to AMA Members
The AMA partnered with Project N95 (a not-for-profit, National COVID-19 Clearinghouse) to make personal protective equipment (PPE) available exclusively to its members. Starting June 22, AMA members receive a series of three emails which describe the program. Members sign in using their AMA Sign In username and password and complete the Registration Form to express an interest in ordering PPE shown below.

1. Makrite 9500 N95 surgical respirator; size S

    2. Makrite 9500 N95 surgical respirator; size M/L

    3. Disposable Isolation gown

All AMA member orders will be aggregated and shipped no later than August 26, via UPS ground.  Gowns may start shipping as early as August 17. Members receive email and text order status and shipping confirmation notices.

Project N95 has written policies on order cancellations, refunds, and handling of damaged goods. See attached Frequently Asked Questions (FAQ) for those and other details about the program and order process.

This pilot program has specific deadlines for registration, orders, and shipping, which are summarized below:

Registration: Last date to submit registration form (July 30, 3:00 PM, CST)

Orders: Last date to submit an order (August 30, 3:00 PM, CST)

1. Cancel Order: Last date to cancel order (August 2 – open timeframe)
2. Shipping:  Orders shipped by date (August 26 – open timeframe)

For this program, AMA and Project N95 established the purchasing business guidelines shown below in order to support as many members as are interested in participating.

Minimum Purchase

1 box of Surgical N95 Respirator (20 masks) or 1 bag of Isolation Gowns (15 gowns)

Maximum Purchase

Surgical N95 Respirator, Size S & Standard (M/L): 50 boxes (20 masks/box) – 1000 masks

Isolation Gowns: 66 bags (15 gowns/bags) – 990 gowns

Questions about this collaboration should be directed to Kristen Tinney at a href=”mailto:kristen.tinney@ama-assn.org”>kristen.tinney@ama-assn.org.

HHS Extends COVID-19 Emergency for Another 90 Days
HHS extended COVID-19 public health emergency designation for another 90 days.

Significant funding and regulatory relief for hospitals and other healthcare providers are tied to the emergency, which was set to expire on July 25. HHS officials had repeatedly signaled HHS’ intention to continue the emergency designation, and the agency previously renewed it in April.

The renewal gives the healthcare industry certainty through the fall on several key policies to assist with the COVID-19 response. Some notable policies tied to the public health emergency are the 20% Medicare inpatient add-on payment for COVID-19 patients, increased federal Medicaid matching funds for states, a mandate that insurers cover medically necessary COVID-19 tests without cost-sharing, relaxed telehealth restrictions, and Section 1135 waivers that give providers additional flexibility to respond to COVID-19.

The public health emergency length is also connected to CMS’ adjustments to the Medicare Shared Savings Program for accountable care organizations. The number of months the emergency lasts affects the amount of shared losses an ACO must pay back to CMS.

The public health emergency doesn’t have any bearing on how long providers have to spend their grants from the $175 billion Provider Relief Fund. (Modern Health, 6/23)

Emergency Physicians’ Main Stresser: 96% Said Availability of PPE
A vast majority of emergency medicine physicians said increasing the availability of personal protective equipment would relieve their stress related to the COVID-19 pandemic, a new survey shows.

The survey was emailed to all emergency medicine physicians at seven U.S. academic emergency departments. A total of 426 physicians responded. Survey results were published in the journal Academic Emergency Medicine.

When asked what measures would relieve their stress related to the COVID-19 pandemic, respondents said:

1. Enhanced availability of PPE: 96.2%
2. Rapid turnaround testing (less than six hours): 92%
3. Testing for COVID‐19 for patients at my discretion (instead of being limited by current protocols): 82.4%
4. Clearer communication about changes in protocols: 73.5%
5. Assurances that I can take leave to care for myself and family members: 71.8%
6. Ability to request testing of myself for COVID‐19 even if I don’t have symptoms: 69.2%
7. Greater clarity about my risk for exposure: 66.7%
8. Assurances that my medical care and that of my dependants will be covered by my employer: 63.4%
9. Assurances about disability benefits: 57%
10. Easily available mental health consultations for me and other healthcare providers: 56.8%
11. Departmental video sessions to discuss COVID-19 response and changes: 55.4%

Academic Emergency Medicine Physicians’ Anxiety Levels, Stressors, and Potential Stress Mitigation Measures During the Acceleration Phase of the COVID‐19 Pandemic

First published: 22 June 2020 https://doi.org/10.1111/acem.14065