December 14, 2018 – Am. Bd. of Specialties Wants Your Opinion!

PRESIDENT’S MESSAGE Thomas J. Madejski, MD MSSNY President MSSNY eNews December 14, 2018 Volume 21  Number 45

Colleagues:

My wife Sandra and I were honored to be able to join the New York State Society of Anesthesiologists for their Annual PGA in Manhattan last weekend.  Congratulations to outgoing President Dr. David Bronheim upon completion of a successful year.  I look forward to working on a number of issues of mutual interest to MSSNY AND NYSSA with incoming president Dr. Vilma Joseph. Special thanks to Stuart Hayman and Dr. Rose Berkun for their hospitality and friendship.

NYSSA provides a robust educational program in conjunction with their PGA and I participated in a panel discussion about possible passage of single payer legislation in New York State and other potential health care financing changes.  Subsequent to that, I traveled to Washington, D.C., along with MSSNY Senior Vice President for Legislative Affairs Morris Auster to participate in a discussion convened by the AMA about the last Medicare financing reform.

Medicare and You

The federal Medicare program continues to be the major driver in physician payment in the United States.  Medicare policies (and experiments) often create care and payment changes in the commercial insurance market and in Medicaid.  Medicare payment seems to be perpetually in need of reform.  The last major change in Medicare financing occurred with the passage of MACRA in 2015. MACRA was in part an attempt to provide a solution to the ongoing problem of the Sustainable Growth Rate formula, a flawed calculation that failed to compensate physicians and others fairly, and created an ongoing crisis of potential cuts that could have crippled a physicians’ ability to provide care and maintain their practice.  MACRA traded the SGR solution for a new payment system that promised to control costs while providing higher value care.  MACRA provides a carrot of bonus payments for participation in quality activities through the MIPS program for smaller practices, or through the QPP program in a variety of forms.  Unfortunately due to budgetary constraints the bonuses occur in the context of a tournament.  The lower performers receive a stick in the form of payment reductions.  Part of the design assumed that a movement away from fee for service Medicare would improve quality and restrain cost increases.  Due to the cost of replacing the SGR, payment increases have been limited and, with the sequestration process affecting the Federal budget, inadequate for practices to keep pace with inflation, and in many cases a poor return on the investment in resources required to participate and attempt to improve care.  In fact, from 2001 to 2017 while Medicare payments to hospitals and skilled nursing facilities have increased approximately 50% (8% above inflation), Medicare physician payments adjusted for inflation dropped 36%! (6% increase minus a 42% increase in the CPI)

Incentives Are Wrong

MSSNY continues to work with our partners at the AMA, and other State and Specialty Medical Societies to improve the care of our patients, and enhance physician satisfaction and practice sustainability.  Improper payment incentives and inadequate payment systems harm patients, and retard the development of a healthcare system that improves societal health and patient outcomes.

There was a wide ranging and robust discussion about issues and opportunities to improve patient care by changing the existing Medicare payment system at the Washington meeting.  Some of the challenges we face include:

• The overall fiscal situation of the United States:  In a country with an expanding national debt and budget deficits approaching 1 trillion dollars per year, adding additional funds to support practice sustainability will be very difficult.  Trying to redirect existing funds from other areas that have benefited from the increased value provided to the system by physicians’ activities will be politically challenging.
• After the first 5 years of MACRA, there is a five-year freeze on the Medicare Part B conversion factor. It was anticipated that there would be further modifications to the payment system before this went into effect.  This obviously would exacerbate the inequity in update differential payment highlighted above.
• Demonstrating to lawmakers and regulators what we believe to be true—the highest quality, and most cost effective care to a patient is provided by physicians in a non-institutional setting.
• Creating flexibility for physicians to have a real choice as to participation in new payment models. While there is much excitement about value based care, there is limited data that demonstrates its preference to traditional fee for service Medicare.  Some specialties may be best served by preservation of a fee for service model.  One of the great difficulties in MACRA implementation is the difficulty to come up with alternate payment models for physicians to consider across the spectrum of specialties and types of practice.  A bias toward large group structure to be able to afford the management tools for population health needed in risk contracting will not work in many rural or urban settings with limited resources, geographic challenges etc.
• Reducing the regulatory and documentation burden of practice, including assuring our EMRs are truly functional.  It’s lunacy to continue as is a system that has physicians spend two-thirds of their time on non-clinical activity to get paid and not get sued.  That’s a 21^st Century cure that I’d like to see.

MSSNY, through our House of Delegates, Socio-Economic committees, Council and AMA delegation, will continue to consider, explore, and advocate for policies that improve the our patients’ lives and that of our physician members.  I’m always interested to hear policy thoughts and feedback from our members.

Please share your suggestions or thoughts with me at comments@mssny.org.

Thomas J. Madejski, MD
MSSNY President

Measles Advisory Update – Webinar Available at MSSNY CME Website
The New York State Department of Health issued an update on Tuesday, December 11^th to the Measles Health Advisory in New York State.  You can view the advisory here.  There have now been at least 130 confirmed cases in the downstate region.  MSSNY conducted a just-in-time Medical Matters webinar entitled “The Continued Public Health Threat of Measles 2018” on Wednesday.  This webinar has now been posted to https://cme.mssny.org .  Please check it out and keep yourself informed about the ongoing measles outbreak in New York State. 

MSSNY Submits Comments to Department of Justice re CVS-Aetna
As reported last week, US District Court Judge Richard Leon has considering delaying the proposed mega merger between CVS and Aetna.   He has ordered a hearing for December 18 and told the companies to present arguments by December 14 to convince him why the acquisition should be permitted.

This week, MSSNY submitted comments to the US DOJ that included testimony MSSNY Immediate Past-President Dr. Charles Rothberg delivered at the October 18 NY DFS hearing examining this transaction, as well as summarizing the extensive concerns with this merger among corporate behemoths that had been raised by NY DFS Superintendent Maria Vullo, the American Medical Association, the American Antitrust Institute and New York State Assembly Insurance Committee Chair Kevin Cahill.

The US Department of Justice (DOJ) had approved the merger in October under the condition that the companies sell Aetna’s Medicare drug plan business to preserve competition.  The acquisition of Aetna by CVS had also been signed off by every state reviewing the transaction, including New York, which approved the merger in late November with numerous conditions.

While DFS’ conditional approval agreement addressed to some degree some of the concerns raised by MSSNY over the last year, MSSNY President Dr. Thomas Madejski issued a statement noting that physicians remained very concerned about the adverse impact to the health care delivery system in New York given the enormous reach of this transaction.

MSSNY’s letter to the DOJ highlighted that, even though the NY DFS had approved the acquisition, it did so highlighting several problems with the merger, including that the companies had not “provided any concrete analysis that the CVS/Aetna merger would result in specific reduced costs for New York consumers, or any business plan or study of asserted improved health outcomes to benefit New Yorkers.”

Moreover, MSSNY’s letter to the DOJ reiterated the extensive concerns articulated by the AMA.  Judge Leon’s concerns about the transaction included the strong opposition by the AMA, which had argued to the DOJ that it would leave consumers with fewer health care choices. In addition to Medicare prescription drug plan choices, AMA also raised concerns about reduced health insurance competition and patient community pharmacy options. 

Advocacy Alert – Please Urge Governor to Sign Bill Requiring Greater Transparency of Insurer Compliance with Mental Health & SUD Parity Laws
Physicians are urged to send a letter to the Governor requesting that he sign into law legislation (S.1156-C, Ortt/A.3694-C, Gunther) which directs the NY Department of Financial Services (DFS) to collect certain key data points and elements from health insurers in order to scrutinize and analyze if they are in compliance with the federal and state mental health and substance use (MH/SUD) disorder parity laws.   A letter can be sent from here.

MSSNY, working together with the New York State Psychiatric Association and other specialty societies, had strongly supported this legislation as it passed the Legislature nearly unanimously.   The bill was delivered to the Governor on December 11, which means he has until December 22 to act. 

If signed into law by the Governor, the information collected would be analyzed and used for the preparation of a parity compliance report that would be contained within in the annual “Consumer Guide to Health Insurers” issued by the DFS (https://dfs.ny.gov/consumer/health/cg_health_2018.pdf).

Although MH/SUD parity laws have been on the books for over a decade on the federal and state level, recent Attorney General settlements note that there continue to be patterns of disparity between coverage criteria imposed on MH/SUD care and treatment as compared to other covered services.  The goal of the legislation is to better ensure compliance with these laws.

NY DFS Approves Cigna-Express Script Merger with Several Conditions
The New York Department of Financial Services (DFS) announced late Thursday that it had approved the purchase by Cigna of PBM Express Scripts.  MSSNY had submitted to DFS a letter detailing its concerns with this transaction in connection with the hearing that had been scheduled by DFS for last Friday, December 7, but the hearing was postponed after only one other group had requested to testify.

As noted in the last week’s e-news, MSSNY’s letter urged DFS to place meaningful “guardrails…to ensure that our patients’ ability to receive the care or medication they need from the physician or pharmacy of their choice is not disrupted or made more burdensome.” Concerns included: the anticompetitive effects of a health insurer purchasing a PBM when that PBM continues to provide services to other health insurance companies; the lack of a regulatory structure in New York regarding the actions of PBMs; and the risk of even more burdensome prior authorization requirements.

While MSSNY is still reviewing the final Opinion and Decision, at first glance, many of the conditions of approval appear similar to those that were required by DFS as part of its approval of the CVS acquisition of Aetna, including:

• Prohibiting increased health insurance rates to pay for the cost of the acquisition;
• Prohibiting dividends to be paid by Cigna without the express prior approval of DFS for 3 years;
• Prohibiting preferential PBM pricing of Express Scripts to any Cigna-affiliated health insurer, to better ensure insurance competitors can continue to fairly purchase PBM services from Caremark;
• Limiting changes to Cigna’s healthcare provider networks for 3 years, including maintaining access to non-chain New York pharmacies;
• Contributing $20 million to New York State, to support health insurance education and enrollment activities and strengthen New York health care transformation activities, which may include payments to the New York State Health Care Transformation Fund
• Requiring an independent third-party audit to assess whether Cigna employees have accessed Confidential Information from Express Scripts in violation of firewall policies; and

Furthermore, the decision contained a requirement that the parties “agree to take no action to oppose legislation” to directly regulate PBMs in New York State.

Nevertheless, physicians remain concerned with the increasing consolidation in the health care system.  MSSNY’s letter to DFS expressing concerns with this transaction, as well as its letter to the US DOJ regarding the CVS purchase of Aetna (see related article) noted that “the efficiencies that are promoted and marketed to supposedly occur are hardly ever borne out after these transactions are consummated.  Inevitably, these mergers create market dynamics that almost always result in further administrative burdens placed on physicians seeking to assure their patients receive the care or medication they need.

MSSNY Addiction & Psychiatric Medicine Committee Paper: Medicine and Marijuana
The Medical Society of the State of New York convened its members on the Addiction and Psychiatric Medicine Committee, the Bioethics Committee and its Health Disparities Committee for comments on the possibility that New York State government may seek legalization of recreational marijuana.  Comments were also expressed by committee members on the existing marijuana program for medicinal purposes.    

American Board of Specialties on Continuing Board Certification: Vision for Future Commission Releases Report
The report, Draft Report for Public Comment which includes the Commission’s key findings and recommendations, will be posted on the Vision Initiative website for comment through Tuesday, January 15, 2019 at 10:00 p.m. EST.

We strongly encourage you to review the draft report and offer your comments by the January 15, 2019 deadline.

The American Board of Medical Specialties and its 24 Member Boards are committed to working with stakeholders to improve the continuing certification process so that it becomes a system that demonstrates the profession’s commitment to professional self-regulation, offers a consistent and clear understanding of what continuing certification means, and establishes a meaningful, relevant and valuable program that meets the highest standard of quality patient care. The Boards will seriously consider the Commission’s findings and recommendations once finalized, as they continue implementation of improvements and pilots currently underway.

Kristin Schleiter, JD
VP, Policy, Government Relations and Strategic Engagement
American Board of Medical Specialties
Direct 312-436-2686
Mobile 847-636-2779 

DFS Fines Aetna and Oscar More Than $2.5 Million For Violations Of Insurance Law
NY Department of Financial Services (DFS) Superintendent Maria Vullo announced this week DFS had imposed fines against Aetna and Oscar totaling more than $2.5 million for violations of New York Insurance Law.  According to the DFS press release, Aetna will pay a civil penalty of $1.95 million for violations including the failure to make prospective determinations, including pre-authorizations, and failure to acknowledge and respond to members’ complaints within required timeframes.  Oscar Insurance Corp. will pay a civil penalty of $576,950 for violations including the failure to adhere to deadlines for utilization reviews and failure to include detailed explanations of adverse determination notices.

Regarding Aetna, a DFS market conduct examination found that from 2012 through 2015, Aetna failed to comply with a number of consumer/provider protections, including: completing pre-authorizations determinations within three business days of receipt of all necessary information; Responding to members’ complaints within the required time frames; sending initial adverse determination letters to the insured and providers within 30 days; and making an appeal determination within 60 days of all necessary information to conduct an appeal.

Under the consent order, Aetna will review and revise all of its procedures related to utilization review, appeals, grievances and complaints to ensure that timely determinations and notifications are given to insureds, providers, and other recipients.  Moreover, Aetna will reprocess all preventive care claims where cost sharing was inappropriately applied and make overdue payments, including interest; and reprocess all claims that were inappropriately denied, and make overdue payments, including interest.

Regarding Oscar, a DFS market conduct examination found that from 2013 through 2015, Oscar failed to comply with a number consumer/provider protections, including: failing to make a determination for prospective utilization reviews within three business days; Failing to make a determination for concurrent utilization reviews within one business day; and failing to include an accurate and detailed explanation of the clinical rationale for the denials in the adverse determination notices;

Under the consent order, Oscar Insurance will be: revising EOB statements to include the appropriate forfeiture language; revising adverse determination notices to include a detailed explanation of the clinical rationale for denials; and reviewing and revising all procedures, related to utilization review to assure that timely determinations are made.

A copy of the Aetna consent order can be found here.

A copy of the Oscar Insurance Company consent order can be found here.

NY Hospitals Reach Settlement, Agree To Stop Improper Billing of Rape Survivors
A group of New York hospitals has agreed to pay restitution to rape survivors and revise billing procedures as part of a legal settlement, state Attorney General Barbara Underwood announced Nov. 29.

The settlement resolves allegations that the hospitals illegally billed at least 200 forensic exams to rape survivors, ranging from $46 to $3,000 each, according to Ms. Underwood.

Hospitals are Brookdale University Hospital Medical Center in Brooklyn; Montefiore Nyack (N.Y.) Hospital; New York Presbyterian/Brooklyn Methodist Hospital; New York-Presbyterian/Columbia University Irving Medical Center; Staten Island-based Richmond University Medical Center; and Bronx-based St. Barnabas Hospital. Columbia University, which employs physicians, is also included.

The hospitals have agreed to pay restitution to rape survivors, in addition to costs, and implement written policies to prevent rape survivors from receiving bills for their rape exams. The settlements follow an investigation of billing practices for forensic rape examinations at Brooklyn Hospital Medical Center. Ms. Underwood said the investigation resulted in an agreement with the hospital, and her office initiated a statewide investigation of billing practices for rape exams at other facilities.

New York law requires that hospitals bill rape exams to the state Office of Victim Services directly, unless the sexual assault survivor voluntarily decides to assign the costs to a private health plan. (Becker’s Hospital Review 11/30)

Free Dinner Symposium for Physicians in Independent Practice
To address the needs of physicians in independent practice, PrescRXptive Communications and E Central Medical Management are co-sponsoring the third annual Toolkit for Independence: Tips and Techniques for a Successful Medical Practice, a complimentary dinner symposium packed with insights to help independent medical practices thrive. The event will be held on Thursday, January 10, from 5:30 – 9:30 p.m. at Jewel Restaurant in Melville.

The symposium is free for physicians and office managers who are accompanied by a physician. The evening includes a cocktail hour and sit-down dinner. There are limited seats available. For additional information, call 631-606-0525. To register, visit http://toolkit-for-independence.eventbrite.com/. 

2019 ACPH Call for Abstracts Now Open through March 29, 2019
Showcase your work at the American Conference on Physician Health (ACPH)! The conference, which is being hosted by the American Medical Association, Mayo Clinic and Stanford University School of Medicine, is being held September 19-21, 2019 at the Sheraton Charlotte Hotel/Le Meridien in Charlotte, NC. Authors are invited to submit abstracts for consideration as part of the 2019 ACPH. Submissions will be accepted from December 10, 2018 to March 29, 2019.

Submit your abstract in one of two categories:

• Research: submitted as either a poster or oral presentation
• Workshop: submitted as an interactive session

*research and non-research workshops considered

Be sure to visit the conference website physician-wellbeing-conference.org to review important details in our “Call for Abstracts” section, as well as the instructions for submitting abstracts. Submissions for all abstracts must be made electronically via the abstract submission form, information available at the ACPH 2019 Call for Abstracts website. Please contact us at physicianhealth@ama-assn.org with any questions or requests.

“Public Health Preparedness 101” CME webinar
January 16, 2019 at 7:30am – Registration now open

Are you prepared for a public health emergency?  And are you ready for one as well?  MSSNY’s next Medical Matters webinar is Public Health Preparedness 101 on January 16, 2019 at 7:30am.  Registration is now open for this program here.  Faculty for this program will be Kira Geraci-Ciardullo, MD, MPH and Arthur Cooper, MD, MS.

Educational Objectives:

• Inform physicians and staff on how to prepare professionally and personally for a public health emergency.
• Describe the importance of readiness in addition to preparedness

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. 

What Should Clinicians Know About Disability?
Approximately 1 in 5 adults reports a disability, and health care professionals play distinctive roles in defining disabilities and treating individuals with them. Better care for the great diversity of people with disabilities “requires better engagement with and reflection upon the rich and complex meaning of disability,” writes Joel Michael Reynolds, The Hastings Center’s Rice Family Fellow in Bioethics and the Humanities, in the AMA Journal of Ethics. Reynolds outlines a set of recommendations and duties clinicians have when encountering patients with disabilities, including the responsibility to recognize the authority of these people as experts about their own experiences. Read the article.

QPP Tip: Avoiding 2020 MIPS Payment Adjustment – The Minimum to Report
The “test” and “partial” participation options that were available for the CY 2017 MIPS participation period are no longer available for the CY 2018 MIPS participation period. To avoid the 2020 MIPS payment adjustment, based on 2018 MIPS participation, physicians will need a minimum of 15 points across all four MIPS categories – quality, improvement activities, promoting interoperability, and cost. Potential ways to achieve the minimum 15 points include:

• 100 percent score in improvement activities category – reporting medium/high weight activities to achieve a total of 40 points
• Achieving 18 points out of a total of 60 points (if reporting 6 measures) for the quality category
  • Reporting six measures for at least 60 percent of applicable patients
  • Earning the maximum 10 points for a high-performance score for at least two measures, which have benchmarks and are not “topped out” measures
• Reporting the ACI base score measures and either:
  • Reporting at least one quality measure for at least 60 percent of applicable patients
  • Reporting one improvement activity
  • Receiving a small practice bonus
  • Receiving a complex patient bonus of at least three points

For additional information, please see Step 5 of the Navigating the QPP Resource  available on PAI’s MACRA QPP Resource Center.