MSSNYeNews: December 20, 2019 – Merry Grinchmas – Stupid Insurance Tricks

PRESIDENT’S MESSAGE Arthur Fougner, MD MSSNY President MSSNY eNews December 20, 2019 Vol. 22  Number 47

Colleagues:

This is the last MSSNY Enews of the year. I was thinking of a holiday theme. Unfortunately, the Grinches of United Healthgroup have managed to drop a ton of coal in my stocking. So what has set me off? Well, this afternoon, I received a disturbing email about the Minnesota Miscreants. It seems that all claims are being systematically denied and requests for audits of medical records issued for each claim.

Procedures and visits are routinely downcoded. Remember, United just reported earnings for the third quarter of over 60 Billion Dollars. That’s roughly forty times the largest Powerball jackpot ever. In 2018, United CEO David Wichmann received total compensation of over $21 million. Let that all sink in for a moment. A man received a sum that would make even Midas jealous for denying claims for the care of folks whose only mistake was in paying premiums to his company.

We have been fighting this War on Doctors for many years. This year, much of my time has been occupied by the issue of unexpected Out of Network bills, dubbed Surprise Bills. Physicians are being portrayed by Health Policy wonks as “Greedy Doctors.” Yet the late Uwe Reinhardt offered that if you compared doctors to the talent pool from which they are recruited, physicians are woefully underpaid.

Moreover, about half of their revenue is absorbed by practice overhead. In addition, this doesn’t take into account college and medical school debt. Medicare payments for over twenty years have been essentially flat compared with the rising cost of living. But the doctors are greedy. Physicians account for, at most, 7.5% of total US healthcare spending. The doctors are greedy— really? Physicians contribute to local, state and federal economies both directly and indirectly by providing jobs, being consumers, and, oh yes, paying taxes. But hey, let’s pillory those greedy doctors.

I have spoken to Albany and NY’s Department of Financial Services has been alerted. However, they need data. So here’s my ask – send me as much information as possible about the insurer, the numbers of claims, what’s being denied, what info is being demanded, etc. The more specificity the better. Send it to me directly. I promise that I will collate the information and dispatch it to Albany if I have to walk it up myself.

We have fought these adversaries before – taking on Oxford and winning a class action suit, working with then Attorney General Cuomo to take down Ingenix. We have called them on their Stupid Insurance Tricks and won. To quote the late President George HW Bush, “This aggression will not stand.”

And to quote his son, President George W. Bush, “We will not waver; we will not tire; we will not falter; and we will not fail.”

And to you and yours, I, along with everyone at MSSNY, wish for you a Happy and a Merry. May the blessings of this holiday season last the whole year long.

Comments? comments@mssny.org; @mssnytweet; @sonodoc99

Arthur Fougner, MD
MSSNY President

MSSNY Together with Physicians Nationwide Raise Concerns with One-Sided Surprise Billing Proposal
With the passage of a 6-month federal Budget resolution this week by the US Congress that did not contain provisions to address “surprise” out of network medical bills, consideration of this issue will continue into 2020.  As consideration continues, physicians should continue to contact Senators Schumer and Gillibrand, as well as their US Representative, to urge for a balanced solution to protect patients from “surprise” out of network medical bills.  Physicians can send a letter here.

Last week, competing legislative proposals were advanced.  MSSNY, together with organized medicine, 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 appears it would practically offer little recourse for a physician to be paid above benchmark payment.

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.”  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.”

This week, Dr. Fougner also responded to an adverse article in Crains that cited statistics from New York union 32 BJ that had paid $10 million in out of network claims over the last 3 years.  Dr. Fougner’s response noted that: “Employer and union plans, such as 32BJ, should not be able to both have their cake and eat it too. They should not be able to both severely limit their physician/hospital networks and then complain about having to pay out of network claims when their insureds—our patients—inevitably need to be treated by an out of network physician due to an inadequate network.”

Separately, 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.

Physician Action on Key Health Care Legislation Needed
As we approach the end of the year, several bills of strong interest to physicians and patients that passed the Legislature have been sent to the Governor for his consideration.  As noted below, please urge the Governor to sign TWO bills that would limit the power of health insurers and PBMs to limit patients’ access to needed prescription medications.   At the same time, please urge opposition to TWO bills that would expand already outrageously high liability costs facing physicians.

• Protect against Insurer Mid-year formulary changes– would prohibit a health insurer from removing a prescription drug from a formulary during the patient’s policy year.  Moreover, if the plan’s drug formulary has two or more tiers of drug benefits with different deductibles, copayments or coinsurance, the plan may not move a drug to a tier with higher patient cost sharing during the policy year. It also prohibits the plan from adding new or additional formulary restrictions during the policy year. Please urge the Governor to sign this bill into law.

• Support Regulation of PBMs– This legislation would enable the State Department of Financial Services for the first time to oversee the practices of the PBM industry, and help to provide greater assurance that PBMs develop their prescription formularies fairly.  Please urge the Governor to sign this legislation into law.

• Oppose Liability expansion– two bills passed the Legislature that will further tip the scales in lawsuits against physicians and the business community generally, adding costs and potentially increasing your liability premiums while doing nothing to reform the current broken system. One would force physician defendants into making a “blind gamble” in cases involving multiple defendants where one defendant settles prior to trial and would enable in many cases the total payout to a plaintiff to actually exceed a jury’s award. The other would allow plaintiffs to collect a judgment from a third party that is not a direct party to the lawsuit in question. The bill would permit this to occur even though the plaintiff had not sued or perhaps could not have sued the third-party defendant in the first instance. Please urge the Governor to veto these bills.

Physicians Ordering Home Care for Your Patients – Are You Aware of the Impact of the New Medicare PDGM Methodology?
Starting in 2020, Medicare is significant revising how it will pay for patient home care services through a new methodology known as the Patient-Driven Groupings Model (PDGM).

The PDGM is a new payment methodology for home care that relies more heavily on clinical characteristics and other patient data to classify home health services into more meaningful payment categories. It is part of CMS’ effort to shift Medicare payment away from volume-based payment towards value-based payment.   However, the new model could produce significant new documentation responsibilities for physicians.

In particular, the PDGM will break up the standard 60-day episode of care into one of two 30-day periods. That means 30-day periods will be implemented as a basis for payment vs. the 60-day periods used now. Each 30-day period is grouped into one of 12 clinical categories based on the patient’s main diagnosis. Moreover, the PDGM will increase the number of payment groupings and unique case-mix potential from 153 to 432. The current system allowed for 153 combinations, but with PDGM each 30-day period can be categorized into one of 432 case-mix groups.

The National Association for Home Care & Hospice (NAHC) has developed a suite of resources for physicians interested in learning more about the PDGM.  To read more about what physicians ordering home care services need to know about this program, please review here.

At the November 7, 2019 meeting of the MSSNY Council, a resolution was adopted to monitor implementation of the PDGM “to determine whether this new program will impose additional administrative burdens on physicians certifying home care services for their patients, and/or whether it will impede patients from receiving needed home care services”.

First Long-Term Study of Health Impact of Vaping Points Way to Regulation of All Tobacco Products
On December 16, 2019, the first long-term study of e-cigarette use was published in the American Journal of Preventive Medicine. The results show conclusively that the use of e-cigarettes dramatically increases the risk of lung disease. It also found that dual use of combustible and electronic cigarettes increases risk beyond using either product alone. This information should be used immediately to inform tobacco regulation at the national, state and local levels. Unfettered access to these products is a public health threat.

The study did not conclude whether vaping is as dangerous as smoking combustible cigarettes, nor did it set out to do so. This question is largely irrelevant. Traditional cigarettes are the most dangerous consumer product in history, killing nearly half a million Americans each year. E-cigarettes need not be as dangerous to warrant strict regulations or sales bans.

A number of cities and states have already taken decisive action to curtail youth e-cigarette use by banning flavors or even overall sales. ASH believes that a flavor ban is a reasonable approach, provided it covers all flavors, including mint and menthol. Other studies have shown that the vast majority of youth e-cigarette users use flavored products. ASH also urges the Food and Drug Administration to re-open its efforts to reduce nicotine in all tobacco products to non-addictive levels.

As legislators consider how to address the e-cigarette epidemic, they should take a broad view of tobacco product sales. Addressing only e-cigarette sales can lead to inconsistent public health policy, for example: eliminating menthol e-cigarettes but leaving menthol cigarettes – which have killed millions – on the shelf.

The most comprehensive and defensible approach is to phase out the sale of all commercial tobacco products, as Beverly Hills, CA has done.

Study: Adding Genetic Testing to Management of Patients with IBD May Help Determine Which Patients May Be At Greater Risk for Loss of Response
Healio (12/18) reports, “Adding genetic testing to the management of patients with inflammatory bowel disease [IBD] may present an opportunity to determine which patients are at greater risk for loss of response and help select the best therapies for each individual patient,” research indicated. In a presentation given at the Advances in Inflammatory Bowel Disease annual meeting, researchers discussed “the HLA-DQA15 allele and its ability to help predict loss of response.”

In a “study comprising more than 1,600 patients in Europe,” investigators “found that the presence of the allele was associated with a significant likelihood of loss of response due to antibody formation to both Remicade (infliximab, Janssen) and Humira (adalimumab, AbbVie),” with the “highest rate for loss of response…found among patients on infliximab monotherapy without an immunomodulator.”

Cold and Flu Rarely Strike at Same Time, Study Finds
People may be less likely to get the flu if they already have a common cold, according to a study published in Proceedings of the National Academy of Sciences.

For the study, researchers analyzed data on 44,230 respiratory illness samples from 36,157 patients in Glasgow, Scotland, between 2005 and 2013. Researchers tested each patient for 11 different virus groups.

Thirty-five percent of samples tested positive for a virus, and 8 percent were infected with more than one type of virus at the same time. Researchers also discovered an inhibitory interaction between flu and rhinoviruses, which are responsible for the common cold, at both an individual and population level.

“When there is a lot of flu in the population, there is little rhinovirus, and vice versa,” said study author Dr. Pablo Murcia, a researcher at the University of Glasgow Centre for Virus Research.

This trend may explain why cold and flu seasons peak at different times of the year on a cyclical basis. It also highlights the need for researchers to study viruses together like an ecosystem, rather than studying one at a time, Dr. Murcia said in a press release.

Trump Administration Proposes New Rules to Increase Organ Transplants
The AP (12/17) reports the Trump Administration “proposed new rules Tuesday to increase organ transplants – steps to make it easier for the living to donate and to make sure that organs from the deceased don’t go to waste.” The article outlines the proposed rules that would increase potential reimbursement for donors and hold “organ procurement organizations” to higher standards.

The Hill (12/17, Sullivan) reports HHS “said that 20 people die each day while on the waitlist for a life-saving organ transplant, and that the new rules are intended to reduce that number and save lives.”

Health Exec (12/17, Baxter) also covers the story.

VA Discontinues Star Ratings System for Hospitals
The U.S. Department of Veteran Affairs has discontinued its star ratings system in an effort to improve transparency and allow veterans seeking healthcare to more easily compare VA and non-VA facilities.

The star ratings system, developed as an internal tool, enabled veterans to compare quality and performance at VA facilities.

However, the ratings did not “provide insight as to how our hospitals stack up against nearby non-VA facilities and are therefore of little value in helping veterans make informed healthcare decisions,” VA Secretary Robert Wilkie said in a news release.

Instead, each VA hospital’s website now features links to tools that will allow users to compare wait times, quality of medical care and patient experience ratings at facilities in their local area.

The VA will, however, continue to publicly release its Strategic Analytics for Improvement and Learning data that is used to internally manage hospital performance within the VA’s health system. Strategic Analytics for Improvement and Learning data assesses 60 quality metrics, overall efficiency and physician capacity.

Study Suggests Eliminating H. Pylori Tied To 75 Percent Reduction In Gastric Carcinoma Risk
A recent research study indicates, “eliminating Helicobacter (H) pylori from a patient’s gastrointestinal tract could lead to a 75% reduction in risk of gastric carcinoma.” The retrospective study  https://www.gastrojournal.org/article/S0016-5085(19)41464-9/fulltextof over 370,000 veterans published in Gastroenterology “also found that racial and ethnic minorities, as well as smokers, were at significantly higher risk of gastric cancer after detection of H pylori.”

Hospitals Sue HHS to Block 2020 Medicare Drug-Rate Rule
Bloomberg Law (12/17) reports behind a paywall that hospitals across the US “are suing the Health and Human Services secretary in federal court in the District of Columbia to stop implementation of a 2020 rule governing the rate the agency will reimburse them for certain medications.” The challenged rule “reduces by nearly 30% Medicare reimbursements to certain public and not-for-profit hospitals for prescription drugs they purchase at a discounted price under the 340B program.” It “takes effect Jan. 1, 2020, and expands the facilities subject to the reduction to include off-campus provider-based departments.”

Information Re WC Deposition Fees for Depos Given on or/after October 2018
When a depo is ordered, the standard direction provides “A medical witness is entitled to a witness fee pursuant to Part 301 of Title 12 of the Official Compilation of Codes, Rules and Regulations of the State of New York. Within ten days of the completion of a witness’s deposition, the party responsible for such witness’s fee, if any, pursuant to the Workers’ Compensation Law and regulations, shall remit payment of the fee to the witness.  The fee is to be awarded in like manner as a witness fee, awarded for attendance at a hearing, irrespective of the location where the deposition takes place (including telephone and video testimony).  If the witness believes that the fee in excess of that set in Part 301 is warranted, such witness must submit a request to the Board within ten days of the deposition.  The Board will review such request and issue a subsequent decision concerning whether an additional fee is warranted.”

This standard language has been used by the WCB for many years.  When a claimant’s physician testifies, the fee must be paid within ten days.  If the doctor is not timely paid, the doctor should send a letter to the carrier, saying “I was deposed on X date, directing that I be paid within 10 days of my testimony. I have not been paid to date.  Please pay me within 10 days of this letter.”

If the carrier still does not pay within the demanded time frame, the doctor should send a letter to the Board, laying out the dates, saying “ I still have not been paid”, and attach the letter that was sent to the carrier.  The WC Board can issue an Administrative Determination directing payment of the standard fee under Regulation 301 (the Administrative Determination cannot provide for any requested extra fee— as the standard language above says, that has to be ordered by the WCLJ in the decision regarding the disputed issue for which testimony was taken).

If this process is followed, the WCB can then identify recalcitrant carriers, and penalize them.  It is expected that this process could very quickly put an end to this practice, and more importantly, will get doctors paid timely.

For your ease in complying with the process, MSSNY has created these templates for your use.

FDA Clears First Interoperable, Automated Insulin Dosing Controller
The FDA on Friday authorized the first interoperable, automated glycemic controller device. The Tandem Diabetes Care Control-IQ Technology adjusts insulin delivery to a patient with diabetes by connecting an insulin pump to a continuous glucose monitor.

Previous software to automate insulin delivery was approved as part of a single system. The Tandem Control-IQ technology, meanwhile, is designed to communicate with numerous compatible devices.

In a news release, an FDA official said that the authorization “help[s] ensure the safety and efficacy of innovative and customizable diabetes management systems that may help patients better tailor their treatments to their individual needs.” FDA news release

US Deaths from Alcohol-Related Liver Disease at Highest Levels since 1999
CDC data revealed that “U.S. deaths from alcohol-related liver disease (ALD) are at their highest levels since 1999 and have risen every year since 2006 in nearly every racial, ethnic and age group.” After analyzing “causes of death for people aged 25 and older in the two decades since 1997,” investigators “found that 2017 had the highest rates of death from ALD, at 13.1 per 100,000 deaths in men and 5.6 per 100,000 in women,” which “compares to 1999 ALD mortality rates of 10.6 per 100,000 in men and 3.3 per 100,000 in women.”

In particular, “mortality rates and recent increases in ALD diagnoses were…pronounced among middle-aged adults, Native Americans and non-Hispanic whites,” the study found. The findings were published online in the American Journal of Gastroenterology

Decline in US Life Expectancy
The decline in US life expectancy U.S. residents for decades had seen improvements in average life expectancy, but the trend reversed in 2014, according to a study published in JAMA. Researchers found that, since 2014, more U.S. residents have been dying at middle age from drug overdoses, diseases, obesity, suicide, and dozens of other causes.

New Drug Formulary FAQs
Now that the NY WC Formulary for new prescriptions has been in effect for almost two weeks, the Board has received some frequently asked questions and would like to make all stakeholders aware of them.

Please visit the Board’s Drug Formulary Overview webpage for:

• An overview of the NY WC Formulary and the prior authorization process
• The latest version of the NY WC Formulary: A Quick Guide and Video            overviews
• A NY WC Formulary Dashboard Guide for Payers/TPAs

1. Can a provider submit a prior authorization request via the Medical Portal for a non-formulary medication that is a continuation/refill of an existing prescription? 

Yes. The Board required that carriers provide prescribers with a list of their patients currently taking non-formulary medications by December 5, 2019. This requirement was put in place so that prescribers can immediately start either (a) switching their patients to formulary medications, or (b) submitting prior authorization requests in advance of the June 5, 2020, date.

2. Should carriers process prior authorization requests for continuation/refill of medications submitted prior to June 5, 2020?

Yes. All prior authorization requests submitted via the Medical Portal (whether for new or continuation/refills) should be processed and reviewed.

Although refills/renewals of medications are not required to comply with the New York Workers’ Compensation Drug Formulary (NY WC Formulary) until June 5, 2020, if a prescriber submits a request via the Medical Portal, the carrier must process and review the request.

3. What documentation is required from the prescriber to support a prior authorization request for the renewal/refill of a non-formulary medication?

The prescriber must provide the clinical rationale/justification for the use of the non-formulary medication.

4. How should a prior authorization request for a refill/renewal of a non-formulary medication be processed by the carrier that is submitted prior to June 5, 2020?

If the prior authorization request provides appropriate clinical rationale/justification that would justify the use of the non-formulary medication, it may be approved for up to a one-year supply.  Said differently, if you were reviewing this on June 5, 2020, and would approve it, then approve it now for up to one year.

If the prior authorization request does not provide appropriate clinical rationale/justification for use of the non-formulary medication, then an approval (for up to a 30-day supply of the medication) should be granted. The reviewer should indicate that it is being approved as a refill/renewal for no more than a 30-day supply in anticipation that a subsequent request will be submitted with appropriate documentation to fully support the use of the non-formulary medication.

While a variance is not necessary for a refill/continuation of a medication, if an Attending Doctor’s Request for Approval of Variance and Carrier’s Response (Form MG-2) for a refill/continuation is submitted, the carrier should process the request using the current procedures until June 5, 2020, at which time all requests must go through the Medical Portal Prior Authorization process. Please be reminded that all requests for new medications must go through the Medical Portal Prior Authorization System effective December 5, 2019.

5. I received a denial for a non-formulary request stating that the request was denied because the drug is not on the NY WC Formulary. Isn’t that what the non-formulary prior authorization requests are for, drugs not on the NY WC Formulary?

Yes, that is correct. If a drug is not on the NY WC Formulary, and the provider wishes to prescribe it, a non-formulary prior authorization request should be submitted using the electronic Prior Authorization System located on the Board’s Medical Portal.

If for any reason, the prescriber does not agree with the Level I or Level II denial or partial approval of their request, they should request the next level review.

6. I requested oxycodone/acetaminophen 5mg/325mg for a patient that has been on it for five years. The patient is back to work, doing well, fully functional, but needs ongoing opioid medication for breakthrough pain. I requested prior authorization for a 365-day supply but received partial approval for a 30-day supply with the instruction that I need to wean the patient.  Is this an appropriate use of the prior authorization process?

The prior authorization request initiated by the provider was correct. The carrier’s advisory comment regarding weaning is not a direction to wean. A weaning direction can only come through the RFA-2OP process, which can only be ordered by a Workers’ Compensation Law Judge.

7. If a medication (e.g., an opioid) is recommended per the Medical Treatment Guidelines, is it still necessary to get a prior authorization?

Opioids are considered formulary during Phase A only, and for a one-time seven-day supply only. Use of opioids outside of the Phase A one-time seven-day supply needs prior authorization. Documentation must support that the injured worker who requires long-term opioids demonstrates objective gains/maintenance of function with improved pain control consistent with the Non-Acute Pain Medical Treatment Guidelines recommendations.

8. How many days’ supply of a formulary or non-formulary drug can I prescribe?

Phase A formulary drugs may be prescribed for up to a 30-day supply. Phase B formulary drugs may be prescribed for up to a 90-day supply.

When a prescriber submits a prior authorization request for a non-formulary medication, the request can be submitted and approved for up to a 365-day supply; however, the prescription can only be written for a maximum of a 90-day supply. If a prior authorization request for a 365-day supply is approved, the clinician can write the prescription for a 90-day supply with three refills.

Prior authorization requests for controlled substances (NYS CII – CV) can also be approved for up to a 365-day supply.  Prescribers would need to follow NYS Controlled Substances laws (e.g., NYS CIII – CV; 30-day supply with up to five refills, CIIs and benzodiazepines 30-day supply with zero refills). The 365-day supply prior authorization request could be approved, but multiple prescriptions would need to be written to encompass the 365 days.

For more information, visit the Drug Formulary Overview Page; General NY WC Formulary questions: WCBFormularyQuestions@wcb.ny.gov;

Technical support questions:

WCBCustomerSupport@wcb.ny.gov

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Program Year 2018 Open Payments Data Available for Review/Dispute through December 31, 2019
On June 28, 2019 the Centers for Medicare & Medicaid Services (CMS) published Program Year 2018 Open Payments data along with updated and newly submitted data from previous program years (2013-2017). Program Year 2018 data and newly submitted payment records are actively available for review and dispute through December 31, 2019. Learn more about reviewing and disputing public data.

Review Now

Physician and teaching hospital review of the data is voluntary, but strongly encouraged. If you have not previously reviewed the Program Year 2018 data visit https://openpaymentsdata.cms.gov/ to review the publically available data. If you believe any records attributed to you are inaccurate or incorrect in any way you may initiate a dispute and work with the reporting entity to reach a resolution. CMS does not mediate disputes.

For more information on the review, dispute and correction process visit the Open Payments resource page at: https://www.cms.gov/OpenPayments/About/Resources.html.

·       Questions – Contact Live Help Desk

Submit questions to the Help Desk via email at openpayments@cms.hhs.gov or by calling  1-855-326-8366 (TTY Line: 1-844-649-2766), Monday through Friday, from 9:00 a.m. to 5:00 p.m. (ET), excluding Federal holidays. Visit the Resources page on the Open Payments website for many of the above resources.