June 9, 2017 – Lavern’s Law Down to the Wire

PRESIDENT’S MESSAGE Charles Rothberg, MD

June 9, 2017 Volume 17 Number 22

Dear Colleagues:

Thank you for answering our call.

Earlier this week, we sent out an urgent alert requesting physicians to contact their legislators to oppose several bills moving through the Legislature that could trigger drastic increases in medical liability insurance costs.  These include bills to change the nature of “wrongful death” awards and to greatly lengthen the medical liability statute of limitations to make it a “date of discovery” rule.

Of particular concern was an editorial in the Daily News this past Monday supporting changes to the Statute of Limitations that would likely trigger an immediate 15% increase in our liability premiums.  If you are employed, it would likely prompt significant cutbacks in your health system and/or other new financial pressures.

We immediately wrote to the paper to express our strong dismay that it would endorse a completely one-sided piece of legislation to greatly expand liability exposure, at a time when no new costs could be tolerated by our health care system.

We highlighted that physicians in New York City and Long Island already pay liability premiums that are among the highest in the country. And that New York has far more medical liability payouts than any other state, far exceeding states such as California, Florida and Texas, both cumulatively and per person.

We also noted the significant financial challenges facing some of the medical malpractice insurance companies operating in New York, as well potentially huge cuts our health care system could face in the years ahead as a result of proposals before Congress to repeal much of the ACA.

While well over 1,000 physicians answered out call to contact their legislators to oppose these adverse bills, many more contacts are needed.  If you have yet not called or written, please do so now here.

There are only two weeks left in the Legislative Session, a time when anything can happen.

Please let your legislators know how patient access to needed care could be harmed if physicians and hospitals would have to absorb enormous new overhead costs.

Please urge them to fight for comprehensive medical liability reform, instead of one-sided proposals.

Please do not wait to make these contacts.

Sincerely,
Charles Rothberg, MD
MSSNY President

Please send your comments to comments@mssny.org

Physicians Urged to Continue to Oppose Liability Expansion Bills
Physicians are urged to continue to contact their legislators (here) to oppose bills moving in the Legislature that could drastically increase the cost of medical liability insurance at a time when no increases can be tolerated.  We thank the many physicians who took the time this week to respond to MSSNY’s “Call to Action”, but more contacts are needed.  MSSNY has been working closely with hospital associations and specialty societies to demonstrate our shared concerns regarding the serious adverse consequences to our healthcare system were any of such one-sided bills to be adopted, including placing advertisements in “inside the Beltway” publications such as City & State and Politico-NY.

The timing of these bills could not be worse.  We now have multiple malpractice insurance companies operating in New York State that appear to be in serious financial jeopardy which can ill-afford to absorb the substantial costs of a brand new cause of action. Moreover there is a great uncertainty in the NY healthcare delivery system as a result of legislation before Congress that could profoundly restructure Medicaid spending.    Please urge you elected officials to oppose the following bills, all of which are before the full Assembly and can be voted on at any time:

Lengthening the Medical Liability Statute of Limitations (A.3339/S.4080) – would substantially lengthen the statute of limitations for medical malpractice actions and lead to enormous increases in the cost of liability insurance for physicians and hospitals.  If enacted this bill could increase your liability premiums by 15%.  

Expansion of Wrongful Death Actions (A.1386/ S.411) – would greatly expand the categories of damages which a plaintiff may recover in a wrongful death action.  Actuarial studies have predicted that this bill could increase liability premiums by over 50%. 

Direct Actions Against a Third Party Defendant (A.1500 / S. 412) – would permit a plaintiff to bypass the defendant he or she sued to collect a judgment from a third party defendant who or which had been sued by the defendant for contribution or indemnification as a result of the underlying action.  

Prohibiting Ex-Parte Interviews of Plaintiff’s Treating Physician (S.243/A.1404) – would prohibit a physician’s defense counsel in a medical liability action from conducting an interview with the plaintiff’s treating physician. This bill would present significant issues for physicians in a medical liability action by limiting the opportunity to fully examine the plaintiff’s health condition to evaluate the merit of the plaintiff’s claim.                                                   (DIVISION OF GOVERMENTAL AFFAIRS)

Governor Cuomo Announces Action to Protect New Yorkers’ Insurance Coverage Should ACA Be Repealed
Governor Cuomo announced earlier this week actions to be taken by the New York Department of Financial Services (DFS) and Department of Health (DOH) designed to protect New Yorkers from issues that could arise were legislation to be enacted by Congress that would repeal many of the protections contained within the Affordable Care Act (ACA).  Among the steps announced included:

• Directing DFS to promulgate new emergency regulations mandating that health insurance companies do not discriminate against New Yorkers with preexisting conditions or based on age or gender, in addition to safeguarding the 10 categories of “Essential Benefits” guaranteed by the ACA;

• Directing DOH to prohibit all insurers who withdraw from offering Qualified Health Plans on the State Health Insurance Exchange from future participation in any program that interacts with the Exchange, including Medicaid, Child Health Plus, and the Essential Plan; and

• Finalizing regulations that will ensure that contraceptive drugs and devices are covered by commercial health insurance policies without co-pays, coinsurance, or deductibles

MSSNY President Dr. Charles Rothberg issued the following statement praising the Governor for taking this action to better ensure comprehensive protections for patients:  “We applaud Governor Cuomo for taking action to assure that New Yorkers are able to maintain comprehensive health insurance benefits were the ACA to be repealed by Congress.

However, such coverage could become an illusory benefit based upon provisions in the AHCA legislation that would have the effect of replacing existing “first dollar” coverage with tax credits.  The proposed tax credits would provide nowhere near the same level of coverage as is currently available.  We call on New York’s Congressional delegation to assure that any health reform package enacted in Washington expands, rather than reduces, New Yorkers’ access to comprehensive health insurance options.”  Dr. Rothberg’s comments were picked up in several AP articles (here and here) across the State, as well as Crains Health Pulse.
(AUSTER)

Physicians Urged to Oppose Retail Clinic Legislation
As the Legislature enters its final days, big box store interests are aggressively pursuing legislation strongly opposed by MSSNY (A.958, Paulin) that would permit corporate-owned retail clinics, which would veer New York away from its long history of opposition to corporately owned care delivery.  Earlier this year, the bill advanced from the Assembly Health Committee to the Assembly Codes Committee despite opposition from several members of the Committee.  The bill has not been officially introduced in the Senate, but versions have passed the Senate in previous sessions.  Physicians are urged to send a letter in opposition here.
(AUSTER)

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Public Health Issues Pending in Final Days of the NYS Legislature
There are several public health legislative issues that physicians should be aware of in the final days of the NYS Legislative Session.   These include:

Placement E-cigarettes under the Clean Indoor Air Act— Assembly Bill 516, which would place electronic cigarettes under the Clean Indoor Air Act (CIAA) has passed the New York State Assembly.   The measure, sponsored by Assemblywoman Linda Rosenthal, would prevent the use of electronic cigarettes in public places and certain outdoor areas.   Its companion measure, S. 2543, sponsored by Senator Kemp Hannon, is on the calendar in the NYS Senate and can be voted at any time.

Raise the Age for Tobacco Purchase— S.3978/A.273, which would increase the purchasing age for tobacco products from eighteen to 21 years of age is in the Assembly Health Committee and the Senate Finance Committee.   MSSNY supports both these measures. Physicians are urged to send a letter in support of both these measures from MSSNY Grassroots Action Center (GAC) or can call their Senator at 518-488-2800. To send a letter, please click here.

Tanning Ban— A. 7218A/S5585A sponsored by Assemblywoman Ellen Jaffe and Senator Phil Boyle has moved out of the Assembly Health Committee to the Assembly Codes Committee.   This bill would remove the procedures to grant 17-18 year olds access to tanning booth and would prohibit anyone 18 years or younger from using a tanning both.   MSSNY supports this measure.  The bill is in the Senate Health Committee.

Three Day Limitation on Pain Medication— A. 7741/S.6246, sponsored by Assemblyman John McDonald and Senator Kemp Hannon would limiting the initial prescription of a Schedule II or III for the alleviation of acute pain from a seven-day supply to a three-day supply.  While the bill is still in the Assembly and Senate Health Committee, there is talk about an “opioid package” being enacted during the last days of session  The limitation proposed is not based on any clinical evidence that shows limiting medication is effective.  Most importantly, patients throughout New York State who are suffering acute pain, such as acute postoperative pain; acute back or chest pain; acute pain related to an injury, post-herpetic neuralgia, or acute pain related to disease or condition, could be significantly impacted. The Medical Society of the State of New York is strongly opposed to this measure.

Bill to Allow Parents to Sign A Religious Exemption for Immunization– A. 8123a/S.6141, sponsored by Assemblymember Richard Gottfried and Senator Martin Golden would expand the ability of parents to claim a “religious” exemption to avoid immunizing their children.  This bill has recently been amended and is the Education Committee of both houses.   Advocates for this measure are urging that this measure be brought to the floor.   New York State currently has religious exemption legislation and a functional regulatory structure.  Families who have true religious issues with immunization, can, and do meet the tenets of their religious beliefs within the context of current law.  This measure, however, would provide for huge expansion of this exemption by permitting parents to ask for this exemption without clearly stating the decision basis for such an exemption. Parent need only state that they are opposed to immunization for “religious” reasons.  MSSNY is strongly opposed to this measure and will work with other health organizations in opposition to this measure. 

Conversion Therapy—A.3977/S.263, sponsored by Assemblywoman Deborah Glick and Senator Brad Hoylman, would prohibit mental health professionals from engaging in sexual orientation change efforts with a patient under the age of eighteen years and expands the definition of professional misconduct with respect to mental health professionals.   The measure has passed the New York State Assembly and is in the Senate’s Mental Health and Development Disabilities Committee.   The Medical Society and the New York State Psychiatric Association are working together to secure passage of this measure.   Physicians are encouraged to go to the MSSNY Grassroots  Action Center (GAC) to send a letter to their Senator by clicking here

 Sepsis Awareness Program – A bill which would establish a sepsis awareness, prevention and education program to educate students, parents and school personnel about sepsis awareness on sepsis has passed the state Assembly.   This measure, A. 6053/S.4971, sponsored by Assemblywoman Catherine Nolan and Senator Carl Marcellino, would also amend New York State’s existing infection control CME requirement for health care professionals to require the inclusion of information regarding the  detection of  the signs  and  symptoms  of  sepsis  and would require that this coursework be completed before July 1, 2022.            
(CLANCY)

Please Call Your Legislators to Oppose Legislation to Further Empower Non-Physicians to Perform Laser Hair Removal
Legislation (S.6088, Savino/A.7977, Paulin) to expressly permit estheticians and others to perform laser hair removal with only minimal physician oversight advanced from the Senate Consumer Protection to the Rules Committee this week.  MSSNY along with other specialty societies have expressed their strong opposition to this legislation.

MSSNY has adopted policy that vigorously opposes certification of non-physicians (including non-medical personnel) to perform laser and intense pulsed light source skin enhancement procedures.   That is because lasers have the potential to cause painful burns and permanent scarring if not used properly.  MSSNY’s memo to the Legislature noted a 2013 article in the Journal of the American Medical Association that showed that, despite the fact that approximately only 1/3 of laser hair removal procedures are performed by non-physicians, 75.5% of hair removal lawsuits from 2004 to 2012 were performed by non-physicians, and that from 2008 to 2012, this percentage increased to 85.7%.

With laser hair removal largely unregulated in New York, legislation to provide strong physician oversight of this process is essential.   However, the only physician oversight this legislation would require is a once per year audit of policies and procedures.

Please call your legislators to oppose this bill.  Senate 518-455-2800.  Assembly 518-455-4100.
(AUSTER)

Please Take a Moment to Review Your Online Health Plan Participation Information Available Through New DOH Website
As previously reported, the New York State Department of Health, together with the NY State of Health, has announced the launch of the NYS Provider & Health Plan Look-Up, an online tool that consumers can use to look up the health insurance plans with which a physician participates. It also lists practice locations for each physician.  Previously, a consumer would have to go to the website of each health insurance company to determine if a physician participated with a particular plan.  Moreover, physicians seeking to assure the accuracy of the participation information about themselves made publicly available by a health insurance company would have to go to the website of each insurance company.

Physicians should take the opportunity to go to the website to see with which health plans they are listed to participate to determine if there are inaccuracies in their listings. According to a recent MSSNY survey, over 50% of responding physicians indicated that they were inappropriately listed as a participating provider on a health insurer’s website.  MSSNY has argued that these inaccurate listings could result in a situation where an inadequate physician network appears to be more comprehensive, and thereby able to meet state requirements for network adequacy.

So far we have heard from several physicians who have indicated that some of the information posted on this site is inaccurate.  DOH has advised that the most efficient way to report an error is for the physician or someone on his or her behalf to select the “Contact Us” button on the website (https://pndslookup.health.ny.gov/contact), and complete the electronic form.  The issue will be routed electronically to the DOH and to the selected health plan(s) for review and follow-up.

Again, your involvement is essential in MSSNY’s efforts to ensure health insurance plans truly have comprehensive health insurer networks.                                                                                                             (AUSTER)

Support Legislation to Repeal Arbitrary Limits on Compensation Arrangements with Billing Vendors
The New York State Senate passed legislation this week supported by MSSNY that would  the eliminate the “one of a kind” New York law that prohibits health care practitioners from entering into contracts with practice management companies that use percentage-based billing arrangements.

At the April MSSNY House of Delegates meeting, a resolution was adopted calling on MSSNY to “work for repeal of the New York State law barring percentage-based payment arrangements between physicians and their billing agents” and, to “oppose efforts by state government officials to demand refunds from physicians based upon allegations that claims were submitted to Medicaid using percentage-based arrangements between physicians and their billing agents”.  This legislation would accomplish one of the goals of this resolution.  Identical legislation (A.193, Buchwald) has been introduced in the Assembly and referred to the Health Committee.  Physicians are urged to send a letter to their legislators in support of this legislation here.
(AUSTER)

MSSNY Joins Many Others Advocacy Groups to Oppose Harmful Medicare Part B Reimbursement Cuts
MSSNY joined nearly 300 other physician and patient advocacy associations across the country in a letter to HHS Secretary Dr. Tom Price to express strong concerns with proposals recommended by the Medicare Payment Advisory Commission (MedPAC) and Center for Medicare and Medicaid Innovation (CMMI) to reduce reimbursement for medications covered by Medicare Part B.  These medications are primarily provided to patients in physician offices.  The recommendation is similar to a proposal that was advanced by CMS last year.

The letter noted the appreciation for the leading role that Dr. Price played “last year to raise awareness of the harmful impact that the Obama Administration’s Part B Drug Payment Model experiment would have had on physicians and patients. This model is problematic for many reasons, including pushing mandatory, disruptive, and near-nationwide policy changes under the guise of a ‘demonstration’ that could have significantly hurt the sickest and most vulnerable patients.”  Furthermore, the letter noted concerns that, if Medicare Part B drug reimbursements were to be cut, “patients would be left with fewer locations where they could receive care, resulting in less access and higher costs”, as well as forcing patients to “require traveling a longer distance to receive care and would result in higher out of pocket costs, particularly in rural communities.”
(AUSTER)

Physicians Must Take Pain Management Mandatory Education By July 1,2017!  Just 3 Weeks Away!
The Medical Society of the State of New York Pain Management, Palliative Care and Addiction modules are now available on-line here. 

These modules are being offered free of charge to all MSSNY members.  Physicians who are new users to the MSSNY CME site will be required to register as a new user.  As a new user, physicians and non-physicians will be required to enter fields that include: position; name (the name should be what you want to appear on the CME certificate); email address; and then create a password.  MSSNY members who encounter a payment page or have difficulty registering, please email cme@mssny.org for technical support.  Directions for creating a new account/or logging in can be found here.   Non-MSSNY physicians will be charged $50 per module. 

The MSSNY CME is a new site and while many MSSNY members have an account with mssny.org a MSSNY member may not necessary have an account with cme.mssny.org   If in doubt, try to create an account and if it tells you that the email address is unavailable or in use,  an account exists.   Passwords can be reset if you don’t know it.  Physicians who have previously had an account at the MSSNY CME site will need to log into the site using their email and password.

The MSSNY CME site provides the ability for physicians and other prescribers to view the archived webinar at their leisure, take the required test, and download their certificate. The online program covers all eight topics required in the New York State statute. MSSNY developed the program with the NYS Office of Alcoholism and Substance Abuse Services (OASAS).  MSSNY is listed as an accrediting organization by the NYS DOH Bureau of Narcotic Enforcement.   Information on the three CME modules is available here.  Additional information or technical support may be obtained by contacting cme@mssny.org                                                  (CLANCY)      

DOH Attestation Process for Pain Management CME Must Be Completed by July 1, 2017! Just 3 Weeks Away!
The New York State Department of Health has announced the attestation process for prescribers required to complete Pain Management CME. Prescribers must attest to the completion of the pain management, palliative care and addiction course work or training by July 1, 2017, and again every three years thereafter. The prescriber should only attest after completion of at least three hours of course work or training covering all eight topics.

A prescriber with a Health Commerce System (HCS) account will attest online using the Narcotic Education Attestation Tracker (NEAT) application.  Complete the steps to access the NEAT (Narcotic Education Attestation Tracker) application in the NYS Health Commerce System (HCS):

1. Log into the HCS
2. Under “My Content” click on “All Applications”
3. Click on “N”
4. Scroll down to NEAT (Narcotic Education Attestation Tracker) and double click to open the application. You may also click on the “+” sign to add this application under “My Applications” on the left side of the Home screen.

Complete the steps to ATTEST to the completion of the education requirement.   A full set of instructions can be found here.

Prescribers that do not have access to a computer can request a paper attestation form by calling the Bureau of Narcotic Enforcement (BNE) toll-free at 1-866-811-7957. They may then complete the form and return it by mail to the address provided in the form. The Bureau of Narcotic Enforcement has also released a Frequently Asked Questions (FAQs) on the prescriber mandate.   A copy of the FAQs can be found here. 

In certain limited circumstances, the New York State Department of Health may grant an exemption to the required course work or training to an individual prescriber who clearly demonstrates to the department that there is no need to complete such training.

Exemptions will be granted only in very limited circumstances, and not solely on the basis of economic hardship, technological limitations, prescribing volume, practice area, specialty, or board certification.  Prescribers may apply for an exemption through the Health Commerce System. Further information may be obtained by contacting BNE at 1-866-811-7957 or narcotic@health.ny.gov.           (CLANCY)

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

PAI Launches Free MACRA QPP Physician Education Initiative
The Physicians Advocacy Institute (PAI), of which MSSNY is a Charter Member, has developed educational resources to help physician practices succeed under the Medicare Quality Payment Program (QPP), enacted as part of the MACRA law of 2015. This valuable information is for MEMBERS ONLY.

PAI is sharing this comprehensive array of resources free of charge to help any physician practice, regardless of its level of readiness or knowledge, assess its preparedness and determine the best approach to succeed under the MACRA QPP payment rules.

PAI collaborated with Healthsperien, a Washington D.C.-based health care consulting firm, to develop the resources, which are housed on the PAI website.

The resources include: Twenty-four stand-alone issue briefs – providing a comprehensive, detailed understanding of the program, including MIPS/APM tracks, reporting mechanisms and much more, including:

• A “10-Step Guide” to Navigating the QPP for physicians with little understanding of the program
• A searchable online FAQ resource with detailed answers to questions shared by Work Group members from your state associations
• Five taped webinars and accompanying slide decks that allow physicians to learn more about specific aspects of the program

To access these resources and for more information about PAI, please visit the MSSNY website at www.mssny.org

Mount Sinai Residents Resist Signing New Contract without a Raise
Resident physicians at Mount Sinai St. Luke’s and Mount Sinai West have been locked in contract negotiations with their employer since October. They’re demanding a raise they say Mount Sinai has refused to put on the table. Instead, the health system has offered residents a one-time bonus of $850 during the three-year contract period, according to the Committee of Interns and Residents SEIU, the union representing the residents.Resident salaries at Mount Sinai are based on how many years they’ve been in their program.

They range from $62,682 for a first-year resident to about $80,000 for someone in their seventh year, according to CIR SEIU. New York-Presbyterian and NYU Langone pay residents similar starting salaries, while Northwell Health pays $68,500 to start, according to figures the union provided. (Crains 6/8)

Insurers Seek 16.6% Rate Hike in Individual Market in 2018
UnitedHealthcare is looking for the biggest premium rate hike in the downstate area in 2018, with a requested increase of 38.5% in the individual market. Overall, New York insurers are requesting an average rate increase of 16.6% in the individual market, and 11.5% in the small group market, according to the summary of rate requests the Department of Financial Services posted online Wednesday evening.
In the individual market, EmblemHealth is seeking a rate increase of 24.9%, Care Connect is seeking a 29.7% increase and Oscar is asking for an 11.1% hike.

Prepare Your Practice for Medicare’s Quality Payment Program (QPP) with CMS-Funded Technical Resources Webinar on June 15^th at 5pm for NY Clinicians & Staff
CMS will be hosting a webinar on June 15^th to provide an overview of some of the upcoming deadlines practices are facing to avoid payment adjustments under QPP and other CMS payment programs, and to provide an overview of the CMS-funded technical assistance available to assist them in successfully participating in QPP and in transforming their practices.

As you know, those practices that are successful can receive significantly higher reimbursement from CMS in the future, but many clinicians still have questions and concerns about this program, and are unsure where to go for help.

Please join our webinar on June 15^th at 5pm.  We will be joined by CMS grantees and contractors that are funded to assist clinicians with QPP, and we will be sharing information about other available resources. The link for the webinar and dial-in information will be emailed to those who register a few days before the call.

Improvements to the Medicare Claims Appeal Process and Statistical Sampling
When: Thursday, June 29, 2017

Time:   1:00pm to 3:00pm EST

Target Audience: All Medicare Fee-For-Service providers

To register or for more information, visit MLN Connects Event Registration

A question and answer session follows the presentation.

Are you aware of recent regulatory changes to the Medicare claims appeal process? During this call, CMS and the Office of Medicare Hearings and Appeals (OMHA) discuss the HHS Medicare Appeals Final Rule, published on January 17, 2017. Learn about changes intended to streamline the administrative appeal processes, reduce the backlog of pending appeals, and increase consistency in decision making across appeal levels.

For an overview of the Final Rule, see the HHS fact sheet. Did you know that certain appeals pending at OMHA may be eligible for more efficient adjudication through statistical sampling? Learn about the expansion of this program based on feedback from the pilot phase and how your participation may advance the adjudication of your appeals.

June Workshop at MET Museum! Medicine at The Met: The Art of Seeing
​How can art help you enhance visual diagnostic skills, increase your capacity for presence and give you the the tools to communicate more effectively? Join us for ArtMed inSight’s Medicine at the MET: The Art of Seeing at the MET Museum on June 23, 2017 from 6 to 8.30 pm and June 24, 2017 from 5 to 7.30 pm. For more information and to register go to: http://artmedinsight.org/?page_id=606

Fair Health Features Fee Estimator on Local Healthcare Pricing
When making strategic decisions about pricing in the context of their local markets, providers in individual or small-group practices often are working in the dark. The FH Fee Estimator^® is an affordable, easy-to-use online tool that sheds light on actual local market-level fees, procedure by procedure—and helps to inform decisions critical to a provider practice.

An FH Fee Estimator license provides access to current, reliable and independent fee-for-service charge data by specialty and geozip area—the same trusted benchmarks that payors nationwide frequently consult when establishing out-of-network fee schedules. (Geozips generally track to the first three digits of a zip code or groups of three-digit zip codes.)

Physicians and their practice managers have access to benchmark data for dentistry and over 40 clinical medical specialties, based on claims data from 493 geographic areas across the United States, updated twice a year. Access is provided to charge benchmarks from the 50th to 95th percentile for each procedure code/geographic area combination. Medicare facility and non-facility professional fees also are provided.

With just a few keystrokes, users select the specialties and geozips they are interested in, complete a payment and check-out process and then download their data or work with it online. Equipped with this data, providers and practice managers can:

• Review and design fee schedules;
• Evaluate network participation and inform negotiations with payors;
• Investigate practice expansion to new geographic areas;
• Project revenue associated with the purchase or lease of new equipment; and
• Compare their own fees to regional market data and Medicare fees and much more.

For more information about the FH Fee Estimator-mail at info@fairhealth.org or call us at 855-301-3247, Monday through Friday, 9 am to 6 pm ET.

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