July 15, 2016 – Possible MACRA Delay

Dr. Reid
Dr. Malcolm Reid

July 15,  2016
Volume 16, Number 25

Dear Colleagues:

We received some modestly good news this week suggesting that CMS is beginning to hear our concerns about the overwhelming complexity of the soon to be implemented Medicare Merit Based Incentive Payment System (MIPS) and Alternative Payment Model (APM) programs.  As many of you know, these programs have the potential to significantly cut or increase Medicare physician payments.

CMS Acting Administrator Andy Slavitt stated publicly that the agency is considering delaying the January 1, 2017 start date for implementation of the MIPS and APM programs, and creating a shorter reporting period for physicians. The comments were made at a US Senate Finance Committee hearing this week examining CMS’ implementation of the MACRA law passed by Congress in 2015 to repeal the SGR and creating the MIPS and APM programs.

You can watch the roughly 90 minute hearing here 

We were pleased that Acting Administrator Slavitt, the only hearing witness, repeatedly stated that the success of small and rural practices under MACRA is a “very high priority” for CMS, and that CMS is considering policy measures to ensure that these providers are “set up for success” under the finalized MACRA rule.

Of course, the proof will be in the final rule that gets released by CMS in the fall.

Delaying the start date and creating a shortened reporting period were among the many suggestions offered by MSSNY and many other medical associations in their comments to CMS last month regarding how to revise the proposal.  MSSNY noted that the proposal by CMS to implement the MIPS and APM programs required by MACRA are “far too complex for many physicians who are already drowning in required paperwork from public and private payers”.  You can read MSSNY’s comments here

In addition, MSSNY has joined on to letters to CMS with the Coalition of State Medical Societies  and with 110 state and specialty medical societies initiated by the AMA .  Both joint letters stress to CMS the physician community’s strong concerns with the overwhelming complexity of this proposal, and the need to assure that physicians are exempted who have little possibility of earning more than it takes to comply.

While MACRA provides that payment adjustments under the MIPS and APM programs are not applied until 2019, it will be based upon care delivered to Medicare patients in 2017.  Under MIPS, Medicare payments could be adjusted up or down by 4% beginning in 2019, and up to +/ – 9% by 2022, with additional bonus payments possible.

Of course, it all comes down to whether our patients can continue to receive the timely and quality care they expect and deserve.  MSSNY and other advocacy associations have raised concerns that seniors’ access to needed physician care could be harmed if some or many physicians are forced to leave the Medicare program due to excessive administrative hassle.

Maybe, just maybe, policymakers are starting to understand this.

Malcolm Reid, MD, MPP
MSSNY President

Please send your comments to comments@mssny.org


enews large

NYC: First Suspected Woman-to-Man Zika Infection Reported
The first case of sexual transmission of Zika virus from a woman to a man appears to have occurred in New York City, health officials there reported today.

The unnamed woman “engaged in a single event of condomless vaginal intercourse with a male partner the day she returned to NYC from travel to an area with ongoing Zika virus transmission,” according to Alexander Davidson, MPH, and colleagues in the city’s Department of Health and Mental Hygiene, during which she had already begun to show symptoms of infection.

A week later, the male partner also developed Zika symptoms, including fever, rash, joint pain, and conjunctivitis, the officials said in an early online release from Morbidity and Mortality Weekly Report. By this time, the woman had already tested positive for Zika infection, and subsequent testing in the man confirmed that he, too, had contracted the virus.

Because the man appeared to have no other opportunity to acquire the infection, Alexander and colleagues concluded that it must have been transmitted during the sex act.

“This case represents the first reported occurrence of female-to-male sexual transmission of Zika virus,” the researchers wrote in MMWR.

The Deadline for Nominations to Leadership Positions Is August 1
The deadline for nominations for MSSNY Councilors, Officers, Trustees and AMA Delegates is August 1. There is a link to the nomination form on the home page at www.mssny.org.

Physicians Urged to Send Letters of Support to Governor for ERX Changes
All physicians are urged to send letters to Governor Cuomo in support of 2 bills to address issues which have arisen with the implementation of the e-prescribing mandate.

The first bill, S. 6779, Hannon/A.9335-B, Gottfried would ease the onerous reporting burden on physicians every single time that they need to issue a paper prescription in lieu of e-prescribing.  The letter urging the Governor to sign the bill can be accessed by clicking on this link.

In March, the Bureau of Narcotics Enforcement announced that when a physician invokes one of the three statutory exceptions and writes/faxes or calls in a paper script because:  their technology or power has failed; the prescription will be filled outside of New York; or it would be impractical for the patient to obtain medications in a timely manner, they must electronically submit to the department an onerous amount of information about the issuance of the paper prescription. DOH asks that each time a paper/fax/oral prescription is issued, the prescriber must electronically inform the DOH of their name, address, phone number, email address, license number, patient’s initials and reason for the issuance of the paper prescription.

This creates an onerous burden for all physicians, particularly in situations where there is a protracted technological failure, and the physician needs to report dozens upon dozens of paper prescriptions. In fact, Surescripts has stated publicly that there is a 3-6% e-prescription transmission failure rate. This means that in the state of New York anywhere between 7.6 million to 15 million e-prescriptions will fail every year and each prescriber involved with these failures who subsequently write a paper prescription will need to file this information with the state.  In some small communities, even the patient’s initials can convey information that will enable others who access this information to identify the patient who will receive the medication.

The bill passed by the Legislature affords a much more preferable alternative by allowing physicians and other prescribers to make a notation in the patient’s chart indicating that they have invoked one of the three statutory exceptions.

The second bill (A.10448, Schimel/S. 7537, Martins) would authorize a pharmacy which does not have a particular medication in stock to transfer the prescription to another pharmacy. The letter urging the Governor to sign the bill can be accessed by clicking on the following link.

Currently, e-prescriptions cannot be transferred by one pharmacy to another thereby requiring the patient to return to or call the prescriber’s office to ask that he/she transmit the e-prescription to another pharmacy creating unnecessary burdens on the patient and delaying timely access to their medication.

Urge Governor Cuomo to Sign Step Therapy Override Bill
All physicians are urged to send a letter to Governor Cuomo requesting that he sign into law a bill (A.2834-D/S.3419-C) that would establish specific criteria for physicians to request an override of a health insurer step therapy medication protocol when it is in the best interest of their patients’ health.

MSSNY strongly supported this bill, and worked with a wide array of patient advocacy organizations, specialty societies, hospitals, and pharmaceutical manufacturers to achieve passage of this legislation.      We know the insurers are strongly fighting this bill, so the Governor’s office needs to hear your support.

Long Island Newsday recently had an editorial in strong support of the bill.

The bill would require a health insurer to grant a physician’s override request of an insurer step therapy protocol if one of the following factors are present: 1) the drug required by the insurer is contraindicated or could likely cause an adverse reaction; 2) the drug required by the insurer is likely to be ineffective based upon the patient’s clinical history; 3) the patient has already tried the required medication, and it was not effective or caused an adverse reaction; 4) the patient is stable on the medication requested by the physician; 5) the medication is not in the best interests of the patient’s health.

While the legislation would generally require the health insurer to make its decision within 3 days of the override request of the physician, the insurer would be required to grant the override request within 24 hours of the request if the patient has a medical condition that places the health of such patient in serious jeopardy if they do not receive the requested medication.  Perhaps most importantly, if the physician’s request for an override is denied, it would enable a physician to formally appeal the decision both within the plan’s existing appeal mechanism as well as taking an external appeal.

DFS Approves Aetna’s Purchase of Humana with Conditions to Reduce Impact on Consumers and Health Providers; Still Requires DOJ Approval
The New York Department of Financial Services has reportedly sent a letter to Aetna indicating that it conditionally approved its proposal to acquire Humana.  While Humana has very little market penetration (limited almost exclusively to Medicare Advantage) in New York, DFS imposed several significant conditions in its approval of the purchase.  While a formal publication of the agreement or a summary has not yet been publicly released, several media reports (including Crains and Bloomberg) note that these conditions will include:

  • That the purchase must first be approved by the federal Department of Justice (DOJ), whose review is still ongoing;
  • No assets from New York insurance products can be used to finance the transaction;
  • None of the acquisition costs including executive compensation can be passed along to New York consumers or providers;
  • No dividends (ordinary or extraordinary) for 3 years from the date of the closing of the transaction;
  • The companies would be prohibited from reducing benefits within plans for 3 years except as required by Medicare
  • The companies would be prohibited from eliminating products for 3 years;
  • The companies would maintain adequate networks “as determined by the Department” for all plans including Medicare Advantage with additional levels of concerns in adequacy for rural and underserved areas.

At the same time, MSSNY, along with hospital and consumer groups, continues to strongly oppose the proposed merger between Anthem and Cigna, which would if approved have a far greater impact in New York’s health insurance market than the Aetna purchase of Humana.  This merger is still under review by DFS and the DOJ.  To read MSSNY’s letter in opposition to DFS, click here.  To read a letter in opposition to DFS from the Coalition to Protect Patient Choice, click here.

Congress Passes Comprehensive Addiction and Recovery Act (CARA) to Address Opioid Epidemic
Early this week, Congress reached agreement and passed the Comprehensive Addiction and Recovery Act (CARA) to address the opioid epidemic. This measure provides a comprehensive framework that includes prevention, treatment and recovery support and also recognized that addiction is a disease.

The legislation calls for the creation of a task force on pain management and calls upon the Secretary of Health and Human Services to advance an educational and awareness campaign regarding prevention and detection of opioid abuse.  In addition, the bill will:

  • improve access to overdose treatment and allow prescribers to co-prescribe naloxone.
  • provide grants to states to establish, implement and improve state-based prescription drug monitoring programs (PDMPs).
  • expand drug take back locations with state and local law enforcement agencies, manufacturers and distributors of prescription medications, retail pharmacies, narcotic treatment programs, hospitals with one site pharmacies and long term care facilities.
  • authorize nurse practitioners and physicians’ assistants to prescribe buprenorphine in an office based setting for up to 30 patients in the first year and 100 patients after the first year.
  • Clarifiy that a doctor or patient may request that a Schedule II prescription be “partially filled.”

A full summary of CARA can be found HERE.

MSSNY has advocated for many of these provisions and has worked with the American Medical Association’s Task Force to Reduce Opioid Abuse in developing positions on many of these issues related to opioids. MSSNY’s Assistant Treasurer, Frank Dowling, MD and Pat Clancy, Vice President for Public Health and Education, are MSSNY’s representatives to the AMA’s Task Force.

In support of the passage of CARA, MSSNY signed onto a joint thank you letter to Congress and also urged that Congress build upon CARA’s achievement by ensuring that appropriate funding is made available for providers to have the resources they need to “prevent opioid addiction from claiming more livers and causing more devastation to families and communities.” MSSNY and 77 other health care advocacy organizations signed this letter. A copy of the letter can be found HERE.

CMS Releases Proposed Medicare Rule for 2017
Late last week, CMS released its proposed rule to update the Medicare Part B physician fee schedule effective January 1, 2017.  To read the CMS summary of highlighted changes, click here.

To read the entire 856-page rule, click here.  A chart detailing the specialty by specialty impact of the proposed changes to the Medicare fee schedule are on pp. 788-789.

In its press release, CMS has highlighted the following proposed changes to Medicare payment:

  • Primary Care and Care Coordination: The rule proposes revisions to payment for chronic care management, including payment for new codes and for extra care management furnished by a physician or practitioner following the initiating visit for patients with multiple chronic conditions.
  • Mental and Behavioral Health:CMS is proposing to pay for specific behavioral health services furnished using the Collaborative Care Model, in which patients are cared for through a team approach, involving a primary care practitioner, behavioral health care manager, and psychiatric consultant. CMS is also proposing to pay more broadly for other approaches to behavioral health integration services.
  • Cognitive Impairment Care Assessment and Planning: CMS is proposing a new code to pay for cognitive and functional assessment and care planning for patients with cognitive impairment (e.g., for patients with Alzheimer’s).
  • Care for Patients with Mobility-Related Impairments: CMS is proposing to pay physicians more accurately for furnishing services to beneficiaries with mobility-related impairments.

As is required every 3 years, CMS also proposes changes to the Geographic Adjustment Factors that specify how to differentiate Medicare payments in over 100 different regions throughout the country, including within the 5 Medicare payment localities in New York State.

MSSNY will be working with the AMA and the federation of medicine to review the rule and to make comments on key components.

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MLMIC Advice: Treating Patients with Whom You Have a Close Relationship
The Risk: Physicians are often asked by close friends, relatives, or colleagues for medical advice, treatment, or prescriptions both inside and outside of the office. At times, these individuals may be seen at no charge as a courtesy. Although the American Medical Association advises physicians not to treat immediate family members except in cases of emergency, or when no one else is available, this practice continues to exist.

Unfortunately, over the years, we have seen a number of lawsuits filed against physicians by close friends, colleagues, and even their own family members because of care provided by our insureds. The defense of these suits is frequently hampered by the fact that there are often sparse or entirely non-existent medical records for the patient. The failure to maintain a medical record for every patient is defined as professional medical misconduct in Education Law § 6530(32). Providing care under these circumstances may pose unique risks. Here are some suggestions on how to handle these situations:


  1. Always create a medical record for friends, relatives, and colleagues for whom you provide care of any kind.
  2. All patient encounters must be documented in the medical record, including those that occur outside the medical office.
  3. A thorough medication history should be obtained to avoid potential drug interactions and identify any contraindications.
  4. Take a complete history when seeing friends, relatives, or colleagues as patients. If indicated, this should include issues that may be uncomfortable to discuss such as the use of psychotropic medications and sexual history.
  5. Perform a thorough physical examination. Sensitive portions of a physical examination should not be deferred when pertinent to the patient’s complaints. These may include a breast, pelvic, or rectal examination. A chaperone may be necessary for those portions of the exam.
  6. Do not write prescriptions for individuals with whom you do not have an established professional relationship and always document the reasons for prescribing the medication and dose. If narcotics are prescribed, the Prescription Monitoring Program (I-STOP) must be checked.
  7. If a surgical procedure is to be performed, a signed informed consent must be present in the record, with accompanying documentation that the requisite risks, benefits, and alternatives to the treatment have been discussed with the patient.

This risk management tip was published in the spring 2016 issue of Dateline.  For a more detailed analysis of the subject of treating friends and family, including two pertinent case studies, please visit MLMIC.com to review the summer 2016 issue of Case Review.

This article has been reprinted with permission from: MLMIC Dateline (Spring 2016, Vol. 15, No. 2), published by Medical Liability Mutual Insurance Company, 2 Park Avenue, Room 2500, New York, NY 10016.  

MSSNY’s Dr. Frank Dowling and AMA Panel Offer Recommendations to Treat Chronic and Acute Pain
At the AMA Annual Meeting last month, a panel of physician experts—which included MSSNY’s Dr. Frank Dowling—offered actions every physician can take to appropriately treat patients with acute or chronic pain, including using PDMPs to improve care and managing chronic pain by focusing on the patient’s goals.

The panel was comprised of physician representatives from the AMA Task Force to Reduce Prescription Opioid Abuse. In light of the opioid epidemic, the task force has put forth recommendations for physicians. “These recommendations come from our colleagues,” Patrice A. Harris, MD, psychiatrist and chair of the AMA Board of Trustees, said. “We are better physicians when we learn from one another.”

Dr. Dowling specifically addressed NY’s PDMP—called I-STOP—and noted that the tool is not just for when a physician plans to prescribe but can also aid in treatment.  “Any time I’m assessing and making a treatment decision, I can look up that information that may be useful, even if I’m not going to prescribe,” Dr. Dowling said. “Some docs will look up all patients in their practice who may be on the schedule … others may look up only when they feel it’s clinically indicated because of a suspicion or a worry or they’re considering a prescription.”

To read the full story, go here.

Governor Announces Crackdown on Synthetic Marijuana after Massive Overdose
The AP (7/14) reports New York Gov. Andrew Cuomo (D) said on Thursday that the state will take steps to crack down on the illegal sale of the drug K2, a type of synthetic marijuana, after 33 people were hospitalized in Brooklyn after overdosing on the drug. Gov. Cuomo said state police, health officials, and others will focus on stopping sales of the drug in bodegas and other shops.

·        AMA Wire – 06/22/16
3 things every physician should do when treating pain
(MSSNY Assistant Treasurer, Dr. Frank Dowling, MD quoted)

(MSSNY Mentioned)

Dr. Michael Goldstein, President of the New York County Medical Society quoted)

(MSSNY Mentioned)

Also ran in:


Syracuse.com – 07/08/16
·        Company News: David Moorthi joined St. Joseph’s Physicians Spine Care
(MSSNY member Dr. David Moorthi mentioned)

·        Politico Pro Health Newsletter – 07/14/16
Listen Up! – Zika Press Release picked up


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Physician Opportunities

Crown Medical PC Needs a New Internist and Pediatrician to Join Our Team! Salary $200,000 + plus benefits.
As a part of our continued growth, we are searching for a new Internist and Pediatrician to join our team. Salary is $200,000 + plus benefits.
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Examines, diagnoses and treats patients for acute injuries, infections, and illnesses
Counsels and educates patients and families about acute and chronic conditions or concerns
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Prescribes and administers medications, therapies, and procedures
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Responsible for the coordination of care with specialists and appropriate ancillary services
Completes all documentation and paperwork in a timely manner
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Active and unrestricted New York medical license
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