March 1, 2019- What We Got Here is a Failure to Communicate

Thomas J. Madejski, MD MSSNY President
Thomas J. Madejski, MD
MSSNY President

March 1, 2019
Volume 22  Number 9



My wife Sandra and I have been blessed with five wonderful children.  The Madejski children are a combination of scientists and thespians.  My oldest son, Greg, is the other Doctor in the family— a PhD in Biomedical Engineering at the University of Rochester.  His youngest brother, Joe, is following in his footsteps as a sophomore at the U of R.  Giovanni, our middle child, is an industrial engineer in Colorado.  My daughter Jacqueline is an actress, currently performing in Key West, and my son James is a writer, currently in London working on a film.  The engineers, but especially the artists are all film buffs and we have ongoing discussions about a number of family favorite movies.

I missed the Oscars on Sunday, but am always amused, and sometimes dismayed, when life imitates art.

The quote at the top of the page is from the movie Cool Hand Luke.  Our children didn’t require a lot of guidance growing up, but when they did I would often joke that I felt we had difficulty with communication.  I felt somewhat like Paul Newman this past week in my efforts to give care to one of my patients in a Medicare Advantage Plan.

Rationing by Inconvenience

My patient, Mr.  X., had a CT of his abdomen and pelvis to assess some abdominal symptoms.  He was found to have an incidental abnormality in one of his kidneys, and my colleague in radiology recommended an ultrasound for further delineation. The ultrasound did not provide enough information and the radiologist recommended a dedicated CT of the kidney to complete the evaluation.  My office reviewed with the radiologist the need for repeat imaging.  The patient’s Medicare Advantage insurance plan required prior authorization for non-emergent imaging studies. We submitted the request and copy of the radiology report and recommendation and were denied the additional study.  I reviewed the denial, and felt that the initial reviewer had erred and submitted an appeal, indicating that my colleague in radiology recommended additional imaging.

Second Denial

Monday, I received another denial and reviewed the rationale.  The denial letter indicated that the test was denied because the patient had a CT done recently—the initial CT that incompletely identified the abnormality.  It was not clear to me who reviewed the information (a physician— it appeared) and whether they had the full clinical picture when they refused to authorize the study.  If they did have the full picture, and denied the study, I had serious concerns about the quality of care that I could deliver to my patients enrolled in this plan.  I called the 1-800 number on the denial and was connected immediately to a very friendly woman who accepted the patient identification information and then, because I was a provider, transferred me to the provider 800 number. The phone rang, and then I received frequent, repeated messages indicating that due to high call volume, there would be a delay in response.  I left the phone on speaker and completed some of my other post clinical work.  After 10- 15 minutes I was still on hold.  I hung up and went home.

Different Day, Same Response

The next morning,   I asked my assistant to contact the plan and find a medical director to discuss the case with.  In my previous experiences with other health plans, I’ve had good success in discussing a case with a physician colleague and moving forward on behalf of the patient in a mutually satisfactory way.  The plan responded that the medical director could not override a determination of the external reviewer and would not arrange for me to discuss the situation with an in- house medical director.  I was intrigued, and dismayed.   There appeared to be a problem in this system in which a physician, advocating for the proper care of their patient, could not discuss with a physician involved in the administration of the plan, concerns regarding the care of an individual patient and the quality of the plans administration of benefits for their insured. I dialed up the pleasant supervisor of appeals who dutifully took down my concern.  I did question whether the supervisor understood my concern was not just the individual patient, but a potentially flawed process that could harm other patients.  She indicated she would review it further with one of their medical directors and get back to me.  I received a call back the next morning.  The appeals supervisor told me they had reviewed my concerns, but no physician was available to speak to me.

Pulling Rank?

 Metaphorically, there was some blood on my forehead, and some puffiness to the bridge of my nose.  We had some back and forth and I was informed my only option would be to speak to her supervisor.  Trying to maintain some humor, I indicated that I thought she was the supervisor, but found that there were a number of levels of supervisors.  In these types of situations, my inclination is to work through the system, but clearly the system was not working for my patient, and not for me.  My sense of humor was failing, and I indicated that I did not wish to speak to another supervisor, but wanted to speak with a physician working for the plan.  It appeared that we were at an impasse.  Bloodied, but unbowed, I related my displeasure and indicated that I would now pursue the matter outside of the plans process.  I mentioned that I had 20,000 or so colleagues in New York who were going to hear about my experience, and indicated that if there was a medical director who wished to call me to discuss my concerns further, it might be worth their while.

I received a call back from the Medical Director of the plan within the hour.  We agreed to speak at the end of the day.  We had a pleasant conversation about my individual patient’s situation and his explanation (and to some extent an apology) about the frustrating rules imposed on the plan and their participating physicians and patients due to Medicare regulations.  He agreed to review my concern about the quality of the review and we agreed to have further discussions about the process for appeals and to review communications policies with our MSSNY VP for Socioeconomics Regina McNally.  I look forward to further discussions to improve the care of our patients and the satisfaction of our physician members.  Hopefully, this will be to the benefit of all concerned, and I won’t end up like Luke.

P.S. Just yesterday, I did have a conversation with a medical director and I think the long story will have a satisfactory (not happy because of the hours expended) ending.

This story has a number of lessons which I think are instructive to some of the discussions we will be having over the next few months in Albany and Washington.

Medicare for All?

There are ongoing discussions about single payer in New York, and Medicare for All in Washington.  Without the ability to discuss clinical concerns with administrative physicians (who also will need to be protected from reprisal when they act on behalf of a patient) in a timely, easily accessible, collegial fashion, care will be even more disrupted than it is now. Patients and physicians will have no recourse or alternative pathway in the face of an adverse determination.   If New York is going to move towards single payer, we need to have Senator Rivera and Assemblyman Gottfried pass our Collective Negotiation Bill now, as a bridge to the future, to ensure patients can get the care they require.

Physician Wellness

Physician wellness will also be further eroded due to increasing frustration with a bureaucratic, Medicare Disadvantage for all type system.  Health plans need to review the quadruple aim and pay attention to physician satisfaction as a key quality indicator.  We need to continue to work with the AMA and our State representatives to Fix Prior Auth

All healthcare financing systems have limited resources.  Patients, their physicians and other providers have ever increasing desires for care.  This constant dynamic within the system determines what actual care occurs.  Which is worse, a bureaucratic system which rations by inconvenience and can be subverted by advocacy, or an overt system with price transparency and determination of value by the purchaser?  Which is more ethical?

It is humbling, and exciting, for each of us, to have the power of this fully operational Medical Society.  Our collective voice opens doors, and our members provide valuable input on crafting the best solutions for healthcare across the state.  Many of our patients are great, articulate advocates for their interests and problems.  MSSNY physicians can complement them well, and we are acting as our best selves when we advocate on behalf of our patients who, for many reasons (illness, stigma, impairment, and developmental issues) cannot advocate on their own behalf.

Come to Albany on Wednesday

I again invite you to join me in Albany March 6th to meet with our elected representatives and share your personal story to inform them about the issues critical to you and your patients.  We have physicians and students joining us from all corners of our great state.   It should be educational (CME provided) and fun.

Our incoming President Dr. Art Fougner has agreed to try and exceed the record number of hard boiled eggs consumed in one sitting by Cool Hand Luke!

Quod si veru est per se evident, non est opus facundia

Comments?; @mssnytweet; @TomMadejski

Thomas J. Madejski, MD
MSSNY President

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Capital Update

Will You Be Joining Us in Albany Next Wednesday?
Hundreds of physician leaders from across New York State are coming to Albany next Wednesday, March 6, to advocate for their profession and their patients. Will you be joining them?

These physicians will be meeting with their local legislators, and hearing from key health care policy leaders including the Chairs of the Health and Insurance committees in the New York State Senate and New York State Assembly.  Physicians will also be given the opportunity to ask questions of these legislators.

Please join us in Albany so that together we can advocate that the Legislature:

  • Reject State Budget proposals that would impose significant cuts to physicians treating patients covered by both Medicare and Medicaid;
  • Reject State Budget proposals that would add prior authorization burdens for care provided to Medicaid patients;
  • Support State Budget proposals to improve public health including raising the age for tobacco purchase, regulating Pharmaceutical Benefit managers, and enable the creation of a Maternal Mortality Review Committee;
  • Proceed very cautiously on paradigm shifting proposals such as legalization of recreational marijuana and creating a single payor health insurance structure.
  • Support legislation to reduce excessive health insurer prior authorization hassles that delay patient care.
  • Reduce the high cost of medical liability insurance through comprehensive reforms; and
  • Preserve opportunities for medical students and residents to become New York’s future health care leaders.

Advocacy Day reading materials can be found: here.

To view MSSNY’s Physicians Advocacy Webinar, please click here.

A brief informal luncheon to which members of each House are invited to speak with their constituents will follow the morning program. County medical societies will be scheduling afternoon appointments for physicians to meet with their elected representatives. If you have any questions/comments, please contact Carrie Harring at:


Physicians Urged to Oppose $80/Dual Eligible Patient Cut
Physicians are urged to continue to contact their state legislators to oppose a proposal in the 2019-20 Executive Budget that would significantly cut payments that Medicaid makes to physicians to cover the Medicare Part B deductibles of their patients covered by both Medicare and Medicaid.

You can send a letter in opposition to this harmful proposal by clicking: here

You can read MSSNY’s memo of opposition to the Legislature here: memo

While the exact cut for each physician would depend on the physician’s patient mix and services provided, we estimate that the cut would be $80 per patient.  That is because the 2019 Medicare Part B deductible is $185, and studies show that on average Medicaid only pays 56% of the Medicare fee schedule in New York.

Given that there are hundreds of thousands of patients in New York who are “dually eligible”, for practices that see a large number of dual eligible patients, this will have a profound impact.  For example, if a physician’s patient mix includes 500 such dual eligible patients, which could certainly be the case for many types of specialty physicians, it would cut payments by $40,000 per year – funds that could go toward upgrading electronic health records, hiring additional staff to allow for more time with patients, upgrading facilities or other medical equipment.

In past years, physicians have had to absorb significant cuts from Medicaid for the care that they provide to their senior and disabled patients covered by both Medicare and Medicaid, making it much harder for these physicians to deliver community-based care. Please urge your legislators know how unfair this cut is.  Please urge them to oppose balancing the state budget on the backs of dedicated community physicians seeking to deliver quality care to their patient.                                                                              (AUSTER)

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Measures Enacting Tighter Restrictions on Tobacco and E-Cigarettes Moves Forward in NYS Legislature
A series of bills to limit youth tobacco use moved out of the Assembly and Senate Health Committees this week including one that would raise the age of tobacco purchase to 21.  A.558/S.2833, sponsored by Assemblywoman Linda Rosenthal and Senator Diane Savino raises the purchase age of tobacco products from 18 to 21.  Also moving from the Health Committees was A.47/S.428, sponsored by Assemblymember Linda Rosenthal and Senator Brad Hoylman.

This measure prohibits the sale and distribution of flavored “e-liquids” for use in electronic cigarettes and electronic cigarettes containing such flavoring.  A.389/S.592, sponsored by Assemblymember Sandra Galef and Senator David Carlucci, would enact the “Tobacco-Free Pharmacies Act”, which would prohibit the sale of tobacco products in pharmacies. This measure was moved from the Assembly Health Committee; action is still pending in the Senate Health Committee. The Medical Society of the Society of the State of New York supports these measures. MSSNY also supports similar proposals that have been advanced in the Executive budget.  (CLANCY)

New York Health Act Reported from Assembly Health Committee
This week legislation to create a single payor system in New York (The New York Health Act A.5248, Gottfried) was reported from the Assembly Health committee to the Codes Committee. The bill passed the Health Committee by a vote of 17-8, with Democrat Robin Schimminger and all seven Republicans on the committee voting against the measure.

During the committee meeting there was extensive debate, including questions related to private insurance, out of state injuries, effects on Medicare recipients and costs of the bill related to a variety of factors such as pharmaceuticals and unemployment insurance. Gottfried estimated that it would take two years to start paying out claims. The current iteration of the bill adds long-term care insurance for New York State residents in addition to its goal of providing taxpayer-funded insurance coverage without premium or co-pays for all New Yorkers.

The bill has passed the Assembly four years in a row and is carried in the Senate by Health Chair Committee Gustavo Rivera. MSSNY continues to have a long standing policy position in support of a multi-payor system to achieve universal coverage and in opposition to a single payor system, but also recognizes that there is a wide array of physician perspectives on this issue.  MSSNY looks forward to continued open and honest dialogue and careful evaluation of the nuances such a far-reaching proposal related to our healthcare and insurance system to ensure that New York moves forward in a manner that assures that patients access to needed care from the physician of their choice is not impaired.

When the legislation was re-introduced a few weeks back, MSSNY President Dr. Thomas Madejski issued the following statement (Statement by Thomas Madejski, MD) that highlighted improvements to the legislation to place parameters around prior authorization requirements and provide a fairer process to negotiate payments for patient care, but also MSSNY’s ongoing strong concerns with moving away from a multi-payor insurance system. (AVELLA, AUSTER)

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Governor Signs Into Law “Red Flag” Law
Governor Andrew Cuomo this week signed into law S.2451/A. 2689, sponsored by Senator Brian Kavanagh and Assemblymember JoAnne Simon, which allows law enforcement officials, family and household members, and certain school officials to seek a court order requiring a person likely to harm themselves or others to surrender any firearms in their possession. This bill, commonly referred to as a “red flag” law, would establish an Extreme Risk Protection Orders (ERPO) which is an order of protection prohibiting a person from purchasing, possessing or attempting to purchase or possess a firearm, rifle or shotgun.    Under the measure, a police officer, a family or household member, a school administrator or his/her designee, can request a court-issued order of protection.  The bill provides grounds for the request and surrendering of the firearm.  MSSNY’s Taskforce on Firearm Safety recently recommended (and the MSSNY Council agreed) that MSSNY support the concept of “red flag” provisions.

Still awaiting the governor’s signature are a series of bills that would help ensure firearm safety.  S.2374/A.2690, sponsored by Senator Michael Gianaris and Assemblymember Amy Paulin, would establish a background check waiting period of up to 30 days.  S.2248/A.2448, sponsored by Senator Luis Sepulveda and Assemblymember Patricia Fahy, would prohibit the possession of a device (bump stock) that accelerates the rate of fire of a firearm.

Also passed by the Legislature was S.101A/A.1715, sponsored by Senator Todd Kaminsky and Assemblymember Judy Griffin that prevents K-12 schools from authorizing anyone other than a security officer, a school resource officer or a law enforcement officer from carrying a firearm on school grounds.  Senator Shelley Mayer and Assemblymember Linda Rosenthal sponsored legislation that directs the state police to devise regulations for gun buyback programs to ensure that such programs are operated consistently throughout the state.  Senator Anna Kaplan and Assemblymember Pamela Hunter were the sponsors of S.2438/A.1213, which would require out of state applicants for gun permits to allow NY permitting authorities to review out-of-state mental health records.

In March 2018, the MSSNY House of Delegates took action to support legislation that requires a waiting period and background checks prior to the purchase of all firearms, including person-to-person transfer, internet sales and interstate transactions for all firearms.  The MSSNY HOD also supported legislation that blocks the sale of any device or modification – including but not limited to bump stocks, which convert a firearm into a weapon that mimics fully-automatic operation.  MSSNY supports legislation that would ban the sale and/or ownership of high-capacity magazines or clips and high-speed, high-destruction rounds. (MSSNY Policy 260.898 and Policy 260.899). (CLANCY)

NY Health Foundation Issues Report Promoting NY’s Successful Law to Limit Patient Surprise Bills
With the United States Congress looking at legislation to address the issue of patients facing “surprise” out of network medical bills across the country, the New York State Health Foundation issued a report this week highlighting the success that New York’s 2014 law has had in reducing such bills.

While New York’s law contains a number of different components to expand network adequacy and comprehensive out of network coverage, its most notable component assures that patients are not financially responsible for medical bills for “surprise” Emergency Department and hospital out-of-network services that are above the patient’s standard in-network copayment, deductible, or coinsurance amount.  Physician payments for these services are determined through informal negotiation between the insurer and physician, with either party having the right to go to a simplified expedited independent dispute resolution (IDR) process if such negotiations for fair payment are not successful (for more information about the law, click here).  The report noted that the percent of out-of-network emergency department services that were billed decreased from 20.1% in 2013, before the law was passed, to 6.4% in 2015, after its implementation.

As Congress debates this issue, MSSNY has written to the New York Congressional delegation, urging that any legislation to be considered is consistent with New York’s comprehensive law (see MSSNY’s letter here).   New York’s comprehensive law addressing this issue has been hailed as a model for the rest of the country because of the delicate balance it struck among key health care stakeholders (such as physicians, hospitals and health insurers) to protect patients from large “surprise” medical bills, while at the same time being constructed in such a way that it did not adversely affect the ability of hospital emergency departments to have adequate on-call specialty physician care.

The NYS Health Foundation report also included some recommendations for improving New York’s law, including stronger insurer network adequacy requirements, enhanced insurer and provider disclosure of network participation, further limiting balance billing in ER out of network situations, and extending applicability to air ambulance services.  MSSNY is continuing to review the feasibility of these recommendations. (AUSTER)

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Assembly Passes Legislation to Exempt Nursing Home from E-Prescription Requirement
This week the Assembly passed Assemblyman Richard Gottfried’s bill (A1034-A) that would exempt nursing homes’ prescription of oral medication from the state requirement that all prescriptions be electronically submitted.   As was recently discussed at MSSNY’s Long-Term Care subcommittee meeting, nursing homes present unique circumstances that make compliance with the current mandate impractical. Physicians are not physically present 24 hours a day, so RNs are allowed to take orders for medication safely and without delay for the residents who need them. The physician would then sign the oral order within 48 hours. This is an extension of an already existing exemption established by the NYS Department of Health that is set to expire on 3/24/19. It would set forth in statute that a waiver from this requirement would be extended to March 2021. The bill does not yet have a Senate sponsor. (AVELLA)

DOH Announces Prevention Agenda 2019-2024 at 6th Annual Population Health Summit
On February 2nd, MSSNY staff and Dr. Geoffrey Moore (Tompkins County) participated in the 6th Annual Population Health Summit: “Becoming the Healthiest State for People of All Ages – Incorporating Health Across all Policies and Age Friendly Principles into the Prevention Agenda 2019-2024” hosted by the NYS Department of Health. The Summit sought to deepen and extend the understanding of ongoing efforts in New York State and nationally that demonstrate effective collaboration between public health, health care, and other sectors to advance population health.

The Prevention Agenda 2019-2024 will focus on preventing chronic diseases; promoting a healthy and safe environment; promoting healthy women, infants, and children; preventing mental and substance use disorders; and preventing communicable diseases. To learn more about the Prevention Agenda 2019-2024 click on this link (HARRING)

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Legislation to Help Prevent Sudden Cardiac Arrest in Student Athletes Moving in NYS Assembly
Legislation to create an educational program on sudden cardiac arrest moved out of the Assembly Health Committee this week.  A.4892/S.3269, sponsored by Assemblymember Michael Cusick and Senator Andrew Lanza, would add the development of an educational and outreach program preventing sudden cardiac arrest among student athletes to the Health Care and Wellness Education and Outreach Program that currently exists in the New York State Department of Health.

The Medical Society of the State of New York supports this measure.  Under the bill’s provisions, DOH will provide educational materials regarding sudden cardiac arrest to students and their parents and guardians. The materials would be developed in conjunction with the Commissioner of Education, the Medical Society of the State of New York, the New York Chapter of the American Academy of Pediatrics, and the American Heart Association.  They would include an explanation of sudden cardiac arrest, a description of early warning signs and an overview of options that are privately available for screening. This legislation would establish a program similar to one being used in New Jersey that requires the development of brochures that could be given to parents as well as pediatricians. (CLANCY)

Registration now open for Medical Matters: Disaster Medicine: Every Physician’s Second Specialty on March 27th at 7:30 AM
The Medical Society of the State of New York will conduct a webinar entitled Disaster Medicine: Every Physician’s Second Specialty on March 27, 2019 @ 7:30am.

Register now for:

Medical Matters: Disaster Medicine: Every Physician’s Second Specialty

Wednesday, March 27th @ 7:30am
Register here.
Faculty: Lorraine Giordano, MD, FACEP, FAADM

Educational Objectives:

Identify core preparedness competencies every physician should know

Explore essential elements of preparedness plans for staff, patients, and family

Describe available courses, resources and organizations to obtain disaster preparedness education and training. 

The Medical Society of the State of New York is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians.

The Medical Society of the State of New York designates this live activity for a maximum of 1.0 AMA/PRA Category 1 credits™.  Physicians should claim only the credit commensurate with the extent of their participation in the activity. (HOFFMAN, CLANCY)

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Registration Now Open for New Veterans Matters CME Webinar March 14th
The Medical Society of the State of New York is proud to announce our newest Veterans Matters webinar scheduled for March 14th at 7:30am. This webinar is entitled Military Culture: Everything Physicians Need to Know About Veterans as Patients.  Register for this program here.

Veterans Matters: Military Culture: Everything Physicians Need to Know About Veterans as Patients

When: Thursday, March 14 2019 at 7:30am – Register here.

Faculty: Lt. Col Lance Allen Wang, & Marcelle Leis, CM Sgt. (Ret)

Educational Objectives:

  1. Describe the unique aspects of military culture and how they impact patients who are veterans.
  2. Explain the Dwyer Peer-to-Peer program as a resource to assist veteran patients re-acclimating from a group to an individual mentality.
  3. Review and identify resources to improve physician’s ability to fully treat veterans who are transitioning back into civilian life.

Additional information or assistance with registration can be obtained by contacting Melissa Hoffman at or (518)465-8085                                 (HOFFMAN)

The Medical Society of the State of New York is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians.

The Medical Society of the State of New York designates this live activity for a maximum of 1.0 AMA/PRA Category 1 creditsä.  Physicians should claim only the credit commensurate with the extent of their participation in the activity.

For more information relating to any of the above articles, please contact the appropriate contributing staff member at the following email addresses:

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MSSNY Member Event at the Westbury Manor: “Is Single Payer Legislation Coming to New York? 

Moe Auster MSSNY, Single Payer Seminar, Westbury David Podwell, MD, Single Payer Seminar, Westbury
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Response to Claim that Majority Legalization of Assisted Suicide
Dr. Thomas Madejski, the president of the Medical Society of the State of New York (MSSNY), wrote in a letter to the editor of the Albany (NY) Times Union (2/22) that MSSNY “has strong concerns with the articulation in the article ‘State’s physicians support aid in dying,’ Jan. 29, that a majority of New York doctors are in favor of physician assisted suicide.” Madejski says that “the survey from Compassion & Choices that was referenced in the article, like the 2017 Medical Society survey, is not a scientific sample representative of the nearly 100,000 New York-licensed physicians as a whole.” Madejski adds that MSSNY’s “Task Force on End of Life continues to discuss many matters related to end-of-life care and whether Medical Society’s long-standing position on physician assisted suicide should be re-evaluated.”

NY Services for Senior Citizens Strained by Record High Elderly Population
The Wall Street Journal (2/27, King, Subscription Publication) reports a study published by the Center for an Urban Future indicates that people aged 65 and older now make up 16 percent of New York’s population, a record high. This in turn is straining state and county services for senior citizens, such as home-care aides and meal delivery.

A Patient Just Sexually Harassed An Employee of My Practice: What Can I Do?
By Andrew Zwerlingftnref1″>[1]

It seems like a normal day at your medical practice until one of your female physician-employees informs you that a male patient grabbed and tried to kiss her when she was conducting a routine examination.  The patient fled the practice immediately after this event.

Putting aside the issue of whether your employee may file criminal charges against the patient – she can – an issue confronting you as the physician-owner of the practice is whether it is appropriate to discharge the offender as a patient of your practice.   As the owner of the practice, under New York law you are required to intervene when put on notice of acts of sexual harassment and assault in your workplace and may be held accountable if you fail to do so.  Here, in order to ensure the safety of your staff, one measure you can take is to discharge or terminate the patient.

Significantly, however, there are myriad components to the termination process that should be undertaken in the effort to insulate you and your practice from a claim of patient abandonment.  You should inform the patient of the termination in writing and through a method of delivery that allows you to track and confirm receipt by the patient, and also send the letter by first class mail.

In the letter you should advise the patient 1) of the reason for the termination; 2) that your practice will be available to him for urgent or emergent care only for a period of thirty (30) days while he transitions his medical care to another qualified provider; 3) that he should contact his insurance provider to assist him in identifying local medical providers to manage or arrange for any ongoing treatment he may need; and 4) that when he finds another provider, that provider may contact your practice to arrange for the transfer of the patient’s clinical records.  You may, but are not required to, provide the patient with a list of other similar providers in the area that he can contact to arrange for ongoing treatment, but cannot recommend any particular provider.  Finally, you should maintain a copy of the termination letter in your files.

[1] Andrew L. Zwerling is a Partner-Director at Garfunkel Wild P.C. with over 36 years as a trial and appellate lawyer in State and Federal courts, including his successful argument before the United States Supreme Court.  He specializes in employment law, and conducts internal investigations for clients relating to sexual harassment and other personnel issues.   His may be reached at 516-393-2581 and by email at

Physicians Accepted $40M in Kickbacks from Texas Hospital, Feds Say
The federal trial for 10 defendants, including four surgeons and a pain physician, accused of participating in a $200 million healthcare fraud scheme kicked off last week, according to The Dallas Morning News.

Five things to know:

  1. The trial, which is expected to last up to two months, centers on bribes and kickbacks now-defunct Forest Park Medical Center in Dallas allegedly paid to physicians and surgeons to steer surgeries to the hospital.
  2. The scheme, which began in 2009 and ran through 2013, involved paying surgeons for referring patients to FPMC, which was out of network with payers. Instead of billing patients for out-of-network copayments, hospital executives and physicians allegedly assured patients they would pay in-network prices. Those involved in the scheme allegedly concealed the patient discounts and wrote off the difference as uncollected bad debt.
  3. There were 21 defendants charged in the scheme in 2016, 11 of whom have pleaded guilty and are expected to testify on behalf of the government at trial, according to The Dallas Morning News.
  4. The $200 million healthcare fraud scheme allegedly involved FPMC officials making $40 million in illegal payouts to surgeons and others in exchange for referrals. Although the $40 million in payments looked legitimate, they were really “bribes and kickbacks,” a government lawyer told the jury during opening arguments on Feb. 21, according to Law360.
  5. Several of the defendants have denied any wrongdoing. They claim healthcare attorneys told them the marketing agreements they entered into, which are at the center of the kickback allegations, were not illegal, according to The Dallas Morning News. (Becker’s Hospital Review, Feb. 27)

More Independent Hospitals Joining Systems Amid Financial Struggles
Modern Healthcare (2/23) reported “stand-alone hospitals’ financial situations are increasingly tenuous,” with 53.2 percent operating at a loss “for each of the past five years, which is more than twice the share of system-owned hospitals, according to an analysis of Modern Healthcare Metrics.” Among rural standalone hospital, the number increases to 60.5 percent. Meanwhile, “independent government-owned hospitals, many of them in rural areas, had an average annual operating margin of negative 16.6% and a $15.8 million operating loss in 2016 compared with a negative 7.9% operating margin and $8.4 million operating loss for their system-owned peers, according to a white paper from Healthcare Management Partners, Waller Lansden Dortch & Davis, and Taggart, Rimes & Graham.” Such financial struggles are leading independent hospitals to join larger health systems; “nearly three-quarters of all hospitals were part of multihospital systems in 2017, up from 70.4% in 2012, according to Metrics data.” (Becker’s Hospital Review, Feb. 27)

As Congress Looks at ‘Surprise’ Billing, a Review of NY’s Law
The New York State Health Foundation on Monday published a review of the state’s law regarding surprise bills, implemented in 2015, to highlight its successes and limitations.

Under the law, patients are responsible for their in-network payment only in cases when they did not give written consent to be treated by an out-of-network provider, including in emergencies. The law also created a dispute-resolution process for providers and insurers to enter binding arbitration over bills.

The law seems to have had its intended effect. The percentage of out-of-network emergency department services billed dropped from 20.1% in 2013 to 6.4% in 2015, according to a study from researchers at Yale University cited in the report.

“We found with our review that the law is working quite well,” said Sharrie McIntosh, vice president for programs at NYSHealth.

Study Underscores Cost Implications of Trend on Taxpayers and Beneficiaries
This study demonstrates that the overall trend continues and is dramatically reshaping the landscape for physicians by creating an increasingly concentrated health care system that costs more.  This is because the same services performed in the hospital outpatient setting are reimbursed by Medicare at higher rates compared to the independent physician office setting. Previous PAI-Avalere research underscored the impact of this policy as it relates to health care spending by taxpayers and patients:

  • Medicare paid $2.7 billion more for four specific cardiology, orthopedic, and gastroenterology services performed in the hospital outpatient setting than if the same services were delivered in the physician office setting from 2012 to 2015.
  • For these same services, Medicare beneficiaries faced $411 million more in out-of-pocket costs due to higher cost-sharing.

Sexual Harassment Webinar
Train the Trainers”: Impact on Healthcare System and Medical Profession

March 20, 2019


 The issue of sexual harassment in the workplace has been the center of a staggering amount of media attention and of a surge in litigation activity. Consistent with this momentum, New York State recently mandated that all employers are required to have a sexual harassment policy containing specified criteria in place by October 9, 2018, and to conduct sexual harassment prevention training by October 2019. (New York City requirements are slated to take effect in April 2019.)

The issue of sexual harassment takes on particular significance for the healthcare industry, because there is an established nexus between disruptive behavior, which includes sexual harassment, and adverse patient outcomes and medical errors.

Sexual Harassment Train the Trainer FREE Webinar on March 20 12 noon

At this time, Garfunkel Wild will be offering a complimentary “Train the Trainers” webinar on the issue of sexual harassment.  The live webinar will be presented on March 20, 2019, from 12 noon to 1:00pm.  For those individuals who are unable to participate in the webinar at that time, MSSNY will be placing a recorded version of that webinar on the MSSNY website to facilitate access to the webinar for MSSNY members.

By the conclusion of the “Train the Trainers” webinar, you will know how to teach your employees:

  • How to identify the more subtle forms of sexual harassment.
  • The impact of sexual harassment on the quality of care and the victim.
  • Practical advice on how to diminish and prevent sexual harassment at your practice.
  • How to respond to sexual harassment in the workplace.
  • Guidelines on how to comply with statutory mandates relating to sexual harassment.

Garfunkel Wild offers individual or group training, on-site or off-site training, as well as webinar modules that can serve to satisfy this new statutory mandate for your employees. If you would like to set up a personal training, please contact Andrew L. Zwerling at 516-393-2581 or


Two CME Programs at the HOD: Protect Your Patients and Women in Medicine
You don’t want to miss these! REGISTER NOW at

Thursday, April 11, 2019, 3:00 – 4:00 pm, Grand Ballroom D/E, Westchester Marriott, Tarrytown

Protect Your Patients, Your Practice, and You!*

Join us at the OMSS Annual Meeting for an interactive presentation by Garfunkel Wild on MEDICAL RECORDS, including the impact on records of the controlled substances “epidemic,” what to consider when emailing and texting, dealing with non-compliant patients, additional areas of exposure from EMRs, and what to include in a telemedicine record.

Business meeting to follow, 4:00 – 6:00, Putnam Room

Friday, April 12, 2019, 5:00 – 6:30 pm, Grand Ballroom B, Westchester Marriott, Tarrytown 

Women in Medicine: Reaching Your Potential Now!**

A panel presentation at the Women Physicians Caucus on PAY, PROMOTIONS and CAREER ADVANCEMENT in Academic Medicine, Private Practice and Organized Medicine

Gender imbalance in medicine and academic sciences still exists. Hear three women physicians who have achieved significant leadership positions describe their own pathways, provide advice on how to achieve success, and show how to overcome gender bias, gender pay gaps and system-wide barriers to career advancement. Learn how to achieve success in your career!

* The Medical Society of the State of New York (MSSNY) is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians.

The Medical Society of the State of New York designates this live activity for a maximum of 1.0 AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity. 

** The Medical Society of the State of New York (MSSNY) is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians.

The Medical Society of the State of New York designates this live activity for a maximum of 1.5 AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.




Office Rental 30 Central Park South.
Two fully equipped exam, two certified operating, bathrooms and consultation room.  Shared secretarial and waiting rooms. Elegantly decorated, central a/c, hardwood floors. Next to Park Lane and Plaza hotels. $1250 for four days a month. Available full or part-time.

5th Ave Medical Office for Share
Facing Central Park in exclusive building, ground floor, separate entrance.
Perfect for psychiatrist, physiatrist, osteopath, or other.
880 5th Avenue (between 69th and 70th Sts.), New York, N.Y.
Please call 917-715-2464

Rare Find — Great Office Share
Wonderful office share in terrific location at great price. Available Monday, Wednesday, Friday and weekends. Choice of smaller windowed consultation room with adjoining exam room or big windowed consultation room with one or two exam rooms. Beautiful bright rooms, lovely reception area and front . First-rate building on 58th Street between Park and Lexington. Rent by day (about $180). Front desk and office management available if needed, along with many other amenities, including internet, ultrasound, EMG Kitchen, optional C Arm. Willing to make changes for new tenant. Call 646-642-0700.

Are You Trying to Lease Your Medical Office or Sell Your Medical Practice? Trying to Sell New or Used Medical Equipment?
Clineeds, the new online platform designed for medical providers. With Clineeds you can lease your medical officeshared your office spacebuy and sell used medical equipment, or post healthcare job opportunities. LISTING IS FREE! Why wait? Click here to sign-up:


Nurse, RN Utilization Review Full-Time-Westbury, NY (In-office position only)
Excellent opportunity for a RN who is seeking a position performing utilization review.  We require 1-2 years recent experience in hospital and/or insurer utilization review and experience using Interqual criteria and/or MCG Guidelines. Data entry/PC skills a plus. Benefits include 401(k), paid vacation and holidays. Send resume and salary requirements to: Empire State Medical Scientific and Educational Foundation, Inc. Human Resource Department e-mail:  Fax: (1-516) 833-4760 Equal Oppty Employer M/F

Pediatrician BC, P/T
Seeking motivated, enthusiastic pediatrician for P/T position in solo practice in Long Island. Coverage will increase over time. Great opportunity for those seeking part time hours in an established practice.   Fax resume to 516-858-2389.

Physician Wanted to Help Shape the Future of Primary Care
98point6 is a healthcare technology company committed to delivering more affordable, accessible, high-quality primary care. To support our mission, the insights of forward-thinking physicians like you are invaluable. Members of our exclusive Primary Care Council have no clinical responsibilities and are generally compensated for participation, which requires only a few hours per year.

Interested? Learn more and apply today at