MSSNY eNews: December 10, 2021 – Medicare Cuts Halted

Medicare Cuts Halted

Colleagues:

Events this week underscored the importance of grassroots physician advocacy. Thanks to sustained advocacy on the part of our MSSNY physicians and our colleagues around the country, we received good news. On Tuesday evening, by a 222-212 vote, the US House of Representatives passed the Protecting Medicare & American Farmers from Sequester Cuts Act to hold off most of the cumulative 10% Medicare cuts to physician payment that were scheduled to go into effect January 1, 2022.

And late last night we received more good news when the US Senate passed the legislation to halt the Medicare physician payment cuts. President Biden is expected to sign the bill into law. (See the fourth article below for more detailed information on the legislation).

This is an example of what can be accomplished when we pull together and present a united front to our legislators. The physicians of New York, and around the country, spoke—and Congress listened. We are grateful to the many members of the New York Congressional delegation who recently joined a letter to Speaker Pelosi and Leader McCarthy urging action to prevent these cuts. And we thank the many of you who contacted your local US Representative and Senators Schumer and Gillibrand highlighting just how devastating and ill-timed this cut could have been.

United we stand, divided we fall. While we have so many more areas where we need our legislators to act to help protect our patients’ access to care, this is an example of how we can accomplish great things when we work together.

Joseph Sellers, MD, FAAP, FACP
MSSNY President

Governor Announces Indoor Mask Requirement for Businesses
Governor Kathy Hochul today announced that masks will be required to be worn in all indoor public places effective Monday, December 13, unless businesses or venues implement a vaccine requirement.

The press release announcing the requirement noted that, since Thanksgiving, the statewide 7-day average case rate has increased by 43% and hospitalizations have increased by 29%.  The press release further noted that “While the percentage of New Yorkers fully vaccinated continues to increase—gaining 2% from Thanksgiving weekend to now—the uptick is not fast enough to completely curb the spread of the virus, particularly among communities with low vaccination coverage.”

“I have warned for weeks that additional steps could be necessary, and now we are at that point based upon three metrics: Increasing cases, reduced hospital capacity, and insufficient vaccination rates in certain areas,” Governor Hochul added.

The press release noted that businesses and venues who implement a proof of vaccination requirement can accept Excelsior Pass, Excelsior Pass Plus, SMART Health Cards issued outside of New York State, or a CDC Vaccination Card. In accordance with CDC’s definition of fully vaccinated, full-course vaccination is defined as 14 days past an individual’s last vaccination dose in their initial vaccine series (14 days past the second shot of a two-dose Pfizer-BioNTech or Moderna vaccine; 14 days past the one-shot Janssen/Johnson & Johnson vaccine).

The press release further noted that businesses and venues that implement a mask requirement must ensure all patrons two years and older wear a mask at all times while indoors.

MSSNY President Talks to CBS/Albany About Elective Surgery Postponements: “The solution is not unreasonable, but I don’t know if it’s enough”
In an interview with CBS/Albany last evening for a piece on elective surgery postponements in Capital Region hospitals, MSSNY President Dr. Joseph Sellers said  “The solution is not unreasonable, but I don’t know if it’s enough. They seem to have learned some lessons from the prior administration when things were done in a very centrally controlled manner,” said Dr. Joseph Sellers, Medical Society of New York President. “There is more leeway for physicians to attest that a patient would suffer if something was postponed. We have ways to assess the risks and benefits of going ahead with surgeries. So, it’s not a full ban, and that’s good. I think people will get the care they need.” Link to CBS6Albany video.

AMA, AHA File Lawsuit to Challenge Faulty HHS Rules Implementing Surprise Billing Law
The American Hospital Association (AHA) and American Medical Association (AMA) filed a lawsuit Thursday against several federal agencies challenging these agencies’ misguided implementation of the federal No Surprises Act (NSA).

The lawsuit challenges a narrow but critical provision of a rule issued on Sept. 30 by the U.S. Department of Health and Human Services (HHS) and other agencies. The provision being challenged ignores requirements specified in the NSA which could significantly adversely narrow care options for patients in hospitals across the country.   The rule and this flawed provision are set to take effect on January 1.

The AHA and AMA noted in an accompanying press release that “they strongly support protecting patients from unanticipated medical bills and were instrumental in passing the landmark No Surprises Act to protect patients from billing disputes between providers and commercial health insurers.”

However, the legal challenge is necessary because the federal regulators’ interpretation upends the careful compromise Congress deliberately chose for resolving billing disputes. As noted in the AMA/AHA press release “the new rule places a heavy thumb on the scale of an independent dispute resolution process, unfairly benefiting commercial health insurance companies. The skewed process will ultimately reduce access to care by discouraging meaningful contracting negotiations, reducing provider networks, and encouraging unsustainable compensation for teaching hospitals, physician practices, and other providers that significantly benefit patients and communities.”

Specifically, the federal regulation directs arbiters under independent dispute resolution (IDR) to presume that the health insurer’s self-determined median in-network rate is the appropriate out-of-network rate and limiting when and how other factors come into play. The lawsuit argues that the regulations are an improper deviation of the law as written by Congress which set forth a series of factors to be considered in the IDR without any one factor being the dominant consideration over the others.

Physicians should be aware that the lawsuit will not prevent the law’s core patient protections from moving forward on January 1, 2022. MSSNY has written several newsletter articles regarding other key provisions of the law that physicians should be sure they are following: MSSNY eNews: November 19, 2021 – 10 Key Provisions of No Surprises Act Implementation in NY –

Last month, the Texas Medical Association filed a lawsuit in a Texas federal court making similar legal challenges against HHS’ interpretation of the NSA. The Physicians’ Advocacy Institute is likely to file an amicus brief to support this action on behalf of itself and 10 other state medical societies including MSSNY.

Moreover, last month, a bipartisan group of 152 lawmakers urged the Administration to fix the independent dispute resolution provisions, noting the rule’s approach “is contrary to statute and could incentivize insurance companies to set artificially low payment rates, which would narrow provider networks and jeopardize patient access to care – the exact opposite of the goal of the law.”

For additional information, please see copies of the filed complaint and motion to stay by the AMA and AHA.  Please remain alert for further updates.

Senate Passes Legislation to Prevent Medicare Cuts; President Expected to Sign
Last night, the US Senate passed legislation to halt most of the cumulative 10% Medicare physician payment cuts that had been scheduled to take effect on January 1, after the US House had passed the legislation earlier this week. President Biden is expected to sign the bill into law.  Specifically, the legislation would:

• Delay the resumption of the 2% Medicare sequester for three months (January 1- March 31, 2022). The legislation then provides for a 1% sequester for the following three months (April 1-June 30, 2022), with the full sequester to be re-implemented on July 1, 2022.
• Provide for a one-year increase in the Medicare Physician Fee Schedule of 3% (0.75% less than the conversion factor boost provided for 2021).
• Eliminate through 2022 the scheduled 4% Medicare PAY-GO cut
• A one-year delay in the cuts to the clinical lab fee schedule.
• A one-year delay in the Medicare radiation oncology demonstration.

“The wheels of Congress don’t always move quickly, but today they did move toward preserving the viability of physician practices and maintaining access to care,” stated AMA President Dr. Gerald Harmon. “Potential reductions in Medicare payments for physician services hung over the heads of patients and practices like a sword of Damocles. The Senate action today, following a similar House vote this week, would delay the reductions and give Congress time to work on reforms to address the flaws in the Medicare payment system.

Earlier this week, MSSNY President Dr. Joseph Sellers issued a statement thanking the many members of the New York Congressional delegation who recently joined a letter to Speaker Pelosi and Leader McCarthy urging action to prevent these cuts, but noted that “we are nearly out of time” and urged “immediate action to help ensure that community-based physicians will still be able to provide the health care services that are expected and deserved by our patients.”

Certainly, the time-limited nature of these actions will necessitate more AMA, MSSNY and grassroots physician advocacy in 2022 to prevent further Medicare cuts.

MSSNY Calls on Governor Hochul to Sign Bill to Increase PBM Transparency & Limit Insurers’ Mid-Year Formulary Changes: Members Urged to Take Grassroots Action
Physicians are again urged to send a letter asking Governor Hochul to sign two bills into law that are critical to helping patients access the medications they need and to ensuring greater oversight of pharmacy benefit formulary development practices. The deadline to sign or veto both bills is the end of December.  Physicians can send a letter or tweet from here: Urge Governor to SIGN two RX bills – Regulating PBMs and Restricting Mid-Year Formulary Changes (p2a.co)

The first piece of legislation, (A.1396, Gottfried/S.3762, Breslin), will provide greater accountability and transparency of the practices of Pharmacy Benefit Managers (PBMs). The bill was amended from the version that passed the Legislature in 2019, but vetoed, to address concerns raised in Governor Cuomo’s veto message two years ago.

The bill requires that PBMs be licensed by the Department of Financial Services (DFS) and adhere to standards established by DFS. It also calls for disclosure of all possible revenue streams, terms, and conditions, that they place on their networks of pharmacies. MSSNY has supported greater oversight and regulation of PBMs as one manner to address restrictive formularies and excessive prior authorization requirements that interfere with patients obtaining needed medications.

The second bill, A.4668, People-Stokes/S.4111, Breslin, would significantly limit the ability of health insurers to move medications to higher cost-sharing tiers for their prescription drug formularies during a policy year. The bill was revised from the version that passed both chambers two years ago, but was vetoed by then Governor Cuomo. To address concerns raised in his veto message, the legislation now prohibits the applicability of a mid-year formulary change to a patient who was on the medication at the beginning of the policy year, or suffers from a condition for which the medication is part of a treatment regimen, for that condition. However, other mid-year formulary changes could still occur.

Physicians can send a letter to ask Governor Hochul to sign both bills here: Urge Governor to SIGN two RX bills – Regulating PBMs and Restricting Mid-Year Formulary Changes (p2a.co)

PHHPC Approves Three Regulations to be Adopted by NYS DOH
The New York Public Health and Health Planning Council (PHHPC) met on Thursday December 9. During their meeting, the Council approved the following three regulations to be adopted by the New York State Department of Health:

1. This regulation conforms existing DOH regulations relative to abortion services with the provisions of the Reproductive Health Act (S240) enacted two years ago by the state legislature, and it permits the clinical examination prior to the procedure to be performed through telemedicine.
2. This regulation allows the Department of Health to extend the deadline by which all hospitals designated as “stroke centers” must initiate a certification process with a certifying organization approved by the Department.
3. This regulation updates tables and corrects topographical/technical errors in NYS law. It allows the Department of Health to maintain full primacy for delivery, oversight, and management of NY’s public drinking water supply, and it ensures consistency with EPA regulations.

CDC Strengthens Booster Recommendations for 16- and 17-Year Olds
On December 9, the CDC strengthened its booster recommendations to indicate that everyone 16 and older receive a booster shot of the Pfizer-BioNTech COVID-19 vaccine six months after their primary series. This follows the CDC’s November 29 recommendation for booster doses for anyone 18 years or older either 6 months after their primary vaccine series of Pfizer-BioNTech or Moderna, or 2 months after their primary vaccine series of Janssen/Johnson & Johnson. At this time, only the Pfizer-BioNTech COVID-19 vaccine is authorized and recommended for adolescents aged 16 and 17.

For more information, click on the following links:

Guidance for The New York State COVID-19 Vaccination Program

Information for Health Care Professionals about the Screening Checklist for the COVID-19 Vaccine

Individuals 12 Years of Age or Older, and the COVID-19 Immunization Screening and Consent Form.

SUNY Upstate Medical University Physician Survey on Vaccine Knowledge, Attitudes and Practices
The COVID-19 pandemic has caused a dramatic decline in vaccine uptake. As more people remain un- or under-vaccinated, communities are increasingly susceptible to outbreaks of vaccine-preventable diseases. In an effort to combat this reduction in vaccinations, SUNY Upstate Medical University is conducting a survey study among healthcare professionals across the state to assess vaccine knowledge, attitudes, and practices. Your answers can help to impact changes in the community as these data will guide under-vaccination from a provider focus. After study closure, up to 5 members from MSSNY who have completed the survey will be randomly selected to win a free copy of the Committee on Infectious Disease, American Academy of Pediatrics Red Book – an important resource on pediatric infectious diseases and vaccinations.

Please consider completing this survey on vaccine knowledge, attitudes, and practices, which should take no more than 10 minutes.  Questions about the survey? Contact SuryadeM@upstate.edu.

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