MSSNYeNews – Surprise Bills – Deal or No Deal: December 13, 2019

Arthur Fougner MSSNY Presiident

Arthur Fougner, MD
MSSNY President

December 13, 2019

Vol. 22  Number 46



As the year slowly draws to a close, Congress is still wrestling with a fix for Surprise Medical Bills. Despite your pressure and persistence, some of the Committee Chairs still favor setting benchmark rates for out of network care based on insurers’ data for in network payments. Can you say WHAT? I knew you could.

This weekend, the story broke that there was a bipartisan deal in the works to resolve the issue. However, there was just one small problem – the purported deal was an early holiday gift to the insurance companies by setting the payment at the median in-network rate. Oh, they were throwing in a form of arbitration should doctor and insurer not agree, but this would be nothing close to NY’s. Moreover, physicians could only submit one claim every ninety days. Such a deal.

As often in DC, when rumors abound, others arise to take their place.  At this juncture, there is no deal. It is committee against committee and leader against leader. Your advocacy is working, folks. In June, insurers’ benchmarking was a done deal. Apparently, thanks to you, the deal has been slow cooking for so long that it’s not well done, it’s burnt to a crisp. But that’s today. There’s still some time before we can truly say benchmarking is dead for this session. While the bill we favor, based on elements of NY’s law, is also stalled, it’s clear that no bill is better than a bad bill. The backers of benchmarking want to get this done by Friday 13th (irony?) .Many in Congress would agree that it’s better to slow down and get it right. Therefore, it’s imperative that we keep the pressure on.

One easy way you can advocate on this issue is to go here. Just enter your information and send a note to your Representative and also to Senators Schumer and Gillibrand. Many of us have been active on social media as well, advocating for our patients and colleagues, so let’s keep it up.

Make no mistake; it could still be Merry Grinchmas.

For this session, it’s The Final Countdown.

Comments?; @sonodoc99

Arthur Fougner, MD
MSSNY President

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MSSNY Together with Physicians Nationwide Raise Concerns with One-Sided Surprise Billing Proposal
Physicians are urged to continue to contact Senators Schumer and Gillibrand, as well as their US Representative, to urge that they continue to fight for a balanced solution to help protect patients from “surprise” out of network medical bills.  Physicians can send a letter here.

Competing legislative proposals were advanced this week. MSSNY, as well as the AMA, numerous state medical associations and national specialty societies raised huge concerns with the insurance industry-friendly proposal advanced by Senator Alexander (R-TN) and Rep. Frank Pallone (D-NJ) that would provide health insurers with new incentives to drop physicians from their networks by enabling them to make payment for such surprise bills at the insurer-determined median in-network rate.  While an appeal arbitration mechanism would be available, it would practically offer little recourse for a physician to be paid above the median in-network payment because it would not permit the consideration of regional charges for these services.

MSSNY President Dr. Art Fougner issued a statement urging Congress to “go back to the drawing board”, noting that “the just announced Alexander-Pallone proposal Congress would hand market dominant health insurers a shiny new club to enable it to drop more physicians from their networks, and make it even harder for physicians to negotiate fairly with these insurers”, it would also “make it harder for hospitals to have needed on/call specialty care in their emergency departments for patients in need of this critical care.”

The statement also praised “the many members of the NY delegation, including Rep. Morelle and Senator Schumer, for their efforts to assure the passage of a far more balanced approach that protects patients’ access to timely needed care.”

On Wednesday, House Ways & Means Committee Chair Richard Neal (D-MA) and W&M Ranker Kevin Brady (R-TX) announced their own proposal to address surprise medical bills that, according to a press release “respects the private market dynamics between insurance plans and providers and first allows them to work out differences without interference. If the parties cannot come to agreement on their own, the agreement provides for a robust, impartial, and structured process to settle payment”.  However, no other information has been made available beyond this general description.

While some have speculated that this issue could be punted into January, with Congress looking for revenue for a December 20 Budget extender bill, physicians must continue to advocate for a fair solution to this issue that will not adversely impact patient access to needed care.

Governor Signs Bill Into Law to Reduce Some Prior Authorization Hassles
This week Governor Cuomo signed into law legislation (S.5328, Breslin/A.2880, Hunter) that would reduce the need to obtain prior authorization from a health insurer when a prior authorization for a related procedure has already been obtained from that insurer.  MSSNY supported this legislation and sent a letter to the Governor’s Counsel urging that this measure be signed into law.

This legislation would help to provide additional needed clarity to existing law to prevent patient inconvenience and unnecessary administrative hassles.  It would ensure that if a physician providing a treatment to a patient for which a prior authorization (PA) has already been received determines that providing an additional or related service or procedure is “immediately necessary as part of such treatment”  and would not be “medically advisable to interrupt the provision of care to the patient” in order to obtain a PA, then the insurer shall not deny the claim, except under limited circumstances.

Specific patient scenarios this legislation seeks to address include when a patient receiving chemotherapy needs to quickly receive treatment for related health issues, such as nausea, low platelet count or allergic reactions, without the need for the physician to request an additional PA from the insurance company.   We were also been made aware of several instances from the New York State Society of Orthopedic Surgeons where additional necessary health care services performed for a patient in the context of providing previously authorized arthroscopic surgery have been denied for lack of prior authorization and/or submission of different CPT codes.

The law takes effect in March.

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MSSNY Participates in Efforts to Assure Enforcement of NY’s “Step Therapy”
MSSNY Governmental Affairs staff this week participated in a roundtable discussion of patient and provider advocacy organizations to discuss issues related to the implementation of New York’s groundbreaking Step Therapy Reform law.  Adopted by the State Legislature and Governor Cuomo in 2016, it was fully implemented in January 2018.

The goal of the law is to ensure that patients have timely access to the most effective medications to treat or manage their particular condition, by assuring physicians have clearly defined criteria to quickly override a health insurer’s step therapy protocol with a minimum of hassle.  The law also requires health insurers to use evidence-based and peer reviewed clinical criteria in establishing a step therapy protocol.

A recent MSSNY survey reported that many physicians were unaware of the law’s protections.  Moreover, many other physicians reported that health plans’ step therapy override process was “challenging” or “extremely difficult”.

MSSNY has a dedicated webpage to help physicians better understand this important law and how they can effectively override these step therapy protocols when warranted by patient circumstances.  It is noteworthy that, according to DFS data, in 2018 there were only 13 attempted external appeals of a health insurer’s denial of a step therapy override request.

The group also discussed potential next steps to ensure that the law is working as intended, including arranging meetings with state regulators. MSSNY Governmental Affairs staff will continue to actively participate in efforts to ensure the law is being implemented as it was intended when it was enacted.

MSSNY Calls Upon Legislature and Governor to Prohibit the Sale of Flavored Nicotine and Tobacco Products
The Medical Society of the State of New York, working with close to 50 medical and public health organizations, called upon leadership in the New York State Legislature and the Governor to enact policies that would prohibit the sale of flavored nicotine products in e-cigarettes and tobacco products, such as cigarillos and chewing tobacco.

In December, MSSNY began meeting with members of the Governor’s staff and with key Assembly and Senator staff asking for enactment of policy either within the 2020 New York State Budget or early 2020 passage of two bills that would accomplish these important public health goals.  Assembly Bill 47A/Senate Bill 428A, sponsored by Assemblywoman Linda Rosenthal and Senator Brad Hoylman, would prohibit the sale and distributions of all flavored e-liquid, including menthol, for use in e-cigarettes.

Equally important, is Assembly Bill 8808/Senate Bill 6809, sponsored by Assemblywoman Rodneyse Bichotte and Senator Brad Hoylman, which would prohibit the sale and distribution of flavored tobacco products and accessories.  The Medical Society is urging physicians to send letters of support on these two bills to their legislators and to the Governor by going to MSSNY Grassroots Action Center (GAC) here.

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NYS Public Health and Planning Council Approve Continuation of Emergency Regulations on E-cigarettes
The Public Health and Health Planning Council’s Committee on Codes, Regulations and Legislation met on Thursday to continue emergency regulations that included requiring signage warning against the dangers of illegal products and the prohibition on the sale of electronic liquids with characterizing flavors.  The first proposal would require entities to post signage about the dangers of vaping illegal e-cigarettes liquid products. The second proposal would prohibit any individual or entity to possess, manufacture, distribute sell or offer to sell any e-liquid flavor product.

New York State Department of Health Deputy Commissioner Brad Hutton explained that the department was seeking approval from the committee to adopt the proposal to make the signage permanent. It would require retailers to post warning signs on their products.  Mr. Hutton noted that the committee had previously approved the emergency regulation prohibiting flavoring in September. Due to the court recently issuing a restraining order in preventing the department and local health departments from enforcing the ban the emergency regulation will expire December 15. Thus, the department seeks the committee’s approval to have the emergency regulation renewed for another 90 days in the same form as previously approved.

MSSNY Raises Concern to SED with Overbroad Practice Affidavit Form
MSSNY has reached out to top staff to the New York State Education Department (SED) to raise concerns with a problematic new affidavit form required to be completed when a physician practice notifies SED of its proposed formation or a practice name change.  For more information about this development, please see this “alert” prepared by MSSNY’s General Counsel, Garfunkel Wild.

Specifically, SED is requiring that new professional practice entities submit an affidavit when applying for Certificates of Authority to operate in New York State, or for professional practice entity name changes. The affidavit requires that a licensed professional who is either an owner or an authorized shareholder attest to whether the professional practice entity has any “relationship, ownership interest, affiliation or association with any other business and/or professional practice entity.” If there is such a connection, the licensed professional must name the affiliated/associated entity, state the nature of relationship, and attest that the relationship is fully compliant with all applicable rules and regulations of the New York Education Law and Business Corporation Law.

In addition to the confusion this generates, and the breadth of information being requested, there are concerns with the risk of significant penalties because of a component of the affidavit that states, “I understand that any misrepresentation or any false or misleading information in, or connection with, my application may be cause for denial, professional discipline or criminal prosecution.”

SED staff has indicated that revisions to the affidavit form are likely to be made.

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DFS Advises NY Insurers to Provide Vaping Cessation Coverage
The Department of Financial Services has issued a circular letter advising New York insurers to provide coverage for vaping cessation treatment that uses methods recommended for smoking cessation, including screening, behavioral interventions and federally approved pharmacotherapy for adults, as well as behavioral interventions for children and adolescents. Go here.

Transgender New Yorkers Less Likely to Receive HIV Treatment, PrEP
The city health department attributed the lack of HIV-negative transgender New Yorkers receiving care to misinformation circulating online, an official said at a joint hearing of City Council committees today.

Pre-exposure prophylaxis, or PrEP, is a medicine that reduces the risk of getting HIV through sex by 90 percent. It is often a free or low-cost medicine for insured people, while the uninsured will qualify for a new federal program; uninsured New Yorkers can receive PrEP through the city health department and other city services like NYC Health + Hospitals, Dr. Demetre Daskalakis, the city’s deputy health commissioner for disease control, told lawmakers on the health and hospitals committees.

“I’ve heard from a lot of our PrEP programs [that] we don’t have a lot of trans people,” Daskalakis said. “We think there is some misinformation about how PrEP interacts with hormones.”

He said he has seen advertisements falsely state the drugs interact with each other, as well as inaccurate information circulating online. Transgender individuals, regardless of status, are still less likely to receive HIV-related care.

HIV diagnoses in most groups declined in 2018, though transgender people and New Yorkers with a history of injection drug use are receiving care at lower rates, the city health department announced last month. (Politico 12/9)

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Flu is Prevalent in New York State, Health Officials Say
New York officials have declared that the flu is ‘prevalent’ in the state.” The state Department of Health said that as of Nov. 30, “there have been 3,158 laboratory-confirmed cases, 691 hospitalizations and one child death.” New York officials have declared that the flu is “prevalent” in the state.

This declaration initiates a state regulation that will require healthcare professionals who are not vaccinated for influenza to wear masks in areas where patients are present.

“Getting vaccinated remains the best way for all New Yorkers to protect against the flu, and it is vital for caregivers who come in contact with patients to get vaccinated to help prevent the spread of flu,” State Health Commissioner Howard Zucker said.

As of Nov. 30 there have been 3,158 laboratory-confirmed cases, 691 hospitalizations and one child death, according to the state Department of Health.


First Time: More Women than Men Enrolled in Medical School
Women comprise the majority of enrolled U.S. medical students for the first time, according to 2019 data released December 11 by the AAMC (Association of American Medical Colleges). This progress builds on the milestone reached in 2017, when, for the first time, women comprised the majority of first-year medical students.

The proportion of women students has been rising over recent years, from 46.9% in 2015 to 49.5% in 2018. In 2019, women comprise 50.5% of all medical school students.

The number of applicants to medical schools rose by 1.1% from 2018 to 2019, to a record 53,371, and the number of matriculants (new enrollees) grew by 1.1%, to 21,869. Across applicants and matriculants, the number of women increased while the number of men declined.

The 2019 data also show that the nation’s medical schools continue to make modest gains in attracting and enrolling more racially and ethnically diverse classes, although these groups remain underrepresented in the overall physician workforce.

  • Applicants who are Hispanic, Latino, or of Spanish origin increased 5.1%, to 5,858, and matriculants from this group grew 6.3%, to 2,466.
  • The number of black or African American applicants rose 0.6%, to 5,193, and matriculants increased by 3.2%, to 1,916. Among black or African American men, applicants and matriculants increased 0.5%, and the total enrollment of black or African American men rose 3.7%, to 3,189.
  • American Indian or Alaska Native applicants grew by 4.8%, to 586, and matriculants rose 5.5%, to 230. Data tables are available here* (Dec. 11 American Assocation of Medical Colleges)

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First Time: More Americans Dying at Home Rather than in Hospitals
In 2017, 29.8 % of deaths by natural causes occurred in compared to 30.7 percent at home, according to research reported on Wednesday in the New England Journal of Medicine. That marks the first time in 50 years that a plurality of Americans were dying at home according to The New York Times.

Low-Dose Aspirin May Fail To Lower Dementia Risk Among Adults with T2D
HELIO reported, “Japanese adults with [T2D] assigned a long-term low-dose aspirin regimen did not lower their risk for dementia vs. similar adults who did not routinely take aspirin,” investigators concluded in a “post hoc analysis of the Japanese Primary Prevention of Atherosclerosis with Aspirin for Diabetes trial.” The findings of the 2,536-participant study were published online in Diabetes Care.


The New Medicare Beneficiary Identifier (MBI)
Effective 1/1/2020, the new Medicare Number, commonly referred to as the MBI, will be required for all Medicare inquiries and transactions. If you would like to learn more about the MBI, we have a section of our website with all the information you need to comply with the CMS initiative.
1. Select “Claims & Appeals” then select “Medicare Beneficiary Identifier (MBI).” Or
2. Click on the MBI scrolling banner on our home page. OR
3. Select “Learn About MBI” on our home page.
Avoid your claims being rejected. Use the MBI today.

Members Only: Year-End Car Deals You Won’t Want to Miss

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Most HICN Claims Reject – Regardless of Date Service
Use Medicare Beneficiary Identifiers (MBIs) now to avoid claim and eligibility transaction rejects. Starting January 1, 2020, regardless of the date of service on the Medicare transaction, most Social Security Number – based Health Insurance Claim Number (HICN) Medicare transactions will reject with a few exceptions.

If you do not use MBIs on claims after January 1, you will get:

  • Electronic claims reject codes: Claims Status Category Code of A7 (acknowledgment rejected for invalid information), a Claims Status Code of 164 (entity’s contract/member number), and an Entity Code of IL (subscriber)
  • Paper claims notices: Claim Adjustment Reason Code (CARC) 16 “Claim/service lacks information or has submission/billing error(s)” and Remittance Advice Remark Code (RARC) N382 “Missing/incomplete/invalid patient identifier”

Thank you for transitioning to MBIs during the 21-month transition period, protecting your patients from identity theft.

  • You are currently submitting 87% of claims with MBIs.
  • If your patient doesn’t have their new card, give them the Get Your New Medicare Card flyer in English or Spanish.
  • Get MBIs through the MAC portals (sign up (PDF) now and after the transition period. You can also find the MBI on the remittance advice.

See the MLN Matters Article (PDF) for more information on getting and using MBIs.




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Great Career Opportunities for Clinical Physicians
Physicians, are you looking for a change?  Tired of working long shifts with an overwhelming patient load?  Come work at a well-equipped and staffed correctional facility where you can MAKE a difference, working with a smaller number of patients for reasonable hours.

Starting salary is $143,381 – $171,631 *Additional $20,000 geographical differential for Clinton & Franklin CF, and $10,000 for Five Points, Greene and Groveland CFs. We offer full-time, part-time & hourly/per-diem positions.

We have openings in the following counties offering a choice of urban, suburban or rural living:

Clinton*                 Clinton Correctional Facility (sporting and recreational outlets)
Chemung               Elmira and Southport Corrl Facilities (Gateway to the Finger Lakes)
Columbia*             Hudson Correctional Facility (antiquing, arts & collectables)
Dutchess                Green Haven Correctional Facility (Hudson River Valley Beauty)
Franklin*                Franklin & Upstate Corrl Facilities (North Country, 1 hour to Montreal)
Greene*                 Greene Correctional Facility (rural charm yet only 2 hours to NY City)
Livingston*            Groveland Correctional Facility (State Parks, hiking, fishing)
Oneida                   Mohawk Correctional Facility (Cooperstown, breweries)
Orleans                  Albion Correctional Facility (Greater Niagara Region & Canal Town Culture)
Sullivan                  Woodbourne Correctional Facility (mountains, outlets, entertainment)
Seneca*                 Five Points Correctional Facility (heart of wine country)
St. Lawrence          Riverview Correctional Facility (hiking, boating and museums)
Ulster                     Shawangunk and Wallkill Corrl Facility (Catskill Mountains, Casinos)
Washington           Great Meadow Corrl Facility (Between Vermont & Green Mountains)
Westchester           Bedford Hills Correctional Facility (Less than 1 Hour to NYC)
Wyoming               Wyoming Correctional Facility (waterfalls, family farms, natural beauty)

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Inquire with the Facility Personnel Office regarding benefits and anticipated opportunities: Contact: or DOCCS Personnel Office at (518) 457-8132 for more information and to apply.

Physician Insights Wanted to Help Shape the Future of Primary Care
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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