MSSNY eNews: December 15, 2021 – Provider Relief Fund Phase 4 Payments Going Out This Week


Provider Relief Fund Phase 4 Payments Going Out This Week
Yesterday, the U.S. Department of Health and Human Services (HHS), through the Health Resources and Services Administration (HRSA), announced the distribution of approximately $9 billion in Provider Relief Fund (PRF) Phase 4 payments to health care providers who have experienced revenue losses and expenses related to the COVID-19 pandemic.  This includes nearly 5,000 providers in New York State totaling over $750 million.

The average payment announced yesterday for small providers is $58,000, for medium providers is $289,000, and for large providers is $1.7 million. More than 69,000 providers in all 50 states, Washington, D.C., and eight territories will receive Phase 4 payments. Payments will start to be made later this week.

The PRF Phase 4 payments, in addition to the $8.5 billion in American Rescue Plan (ARP) Rural payments to providers and suppliers who serve rural Medicaid, Children’s Health Insurance Program (CHIP), and Medicare beneficiaries, are part of the $25.5 billion the Biden-Harris Administration is releasing to health care providers to recruit and retain staff, purchase masks and other supplies, modernize facilities, or other activities needed to respond to COVID-19. The AMA has advocated for more of the PRF to be distributed, particularly those providers who serve in rural areas and who see low-income patients. In response, HHS is reimbursing smaller practices at a higher percentage of their revenue losses and expenses due to COVID-19, as well as using Medicare reimbursement rates to calculate payments for practices that care for Medicare, Medicaid, and CHIP patients.

It is important to keep in mind that funds received over $10,000 in the aggregate during a PRF reporting period will trigger a reporting requirement through the Provider Relief Fund Reporting Portal. Additional information on PRF reporting and auditing may be found here.

For more information on the PRF Phase 4 monies, please the materials below:

Various Lawsuits Underway to Challenge Faulty HHS IDR Rules; Most Other Provisions of the No Surprises Act to Go Forward January 1
As reported last week, the AMA and the American Hospital Association (AHA) have filed a lawsuit in the DC Federal Court against several federal agencies challenging these agencies’ misguided implementation of the federal No Surprises Act (NSA).  This follows a lawsuit filed by the Texas Medical Association (TMA) last month in a Texas Federal Court against various federal agencies challenging a narrow but critical provision of a rule issued on Sept. 30 by these agencies.

Both lawsuits allege that the federal regulators’ interpretation upend the careful compromise Congress set forth for resolving billing disputes.  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 TMA and AMA lawsuits argue that the regulations are an improper deviation of the law as written by Congress which detailed a series of factors to be considered in the IDR without any one factor being the dominant consideration over the others.

With the TMA filing a motion for summary judgement last Friday, the Physicians’ Advocacy Institute (PAI) will be filing an amicus brief to support this action on behalf of itself and 10 other state medical societies including MSSNY.  It is likely that many specialty and state medical associations will file an amicus in the AMA/AHA action as well.

New York State to Issue Guidance on Implementation of NSA in New York

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

A New York State Department of Financial Services (DFS) Circular Letter will be issued shortly that seeks to provide clarification of several components of New York’s law that may be inconsistent with the NSA, such as provisions that would:

  • Ensure that that the provisions of New York’s surprise bill law will apply to all out of network providers, not just hospitals and physicians;
  • Clarify that the “visit” subject to patient protection under New York’s surprise bill law includes: equipment and devices, telemedicine services, imaging services, laboratory services, preoperative and postoperative services, and other such services as HHS may specify;
  • Clarify that New York’s surprise bill law applies to all safety net hospitals;
  • Clarify that previously exempted CPT codes 99281 – 99285, 99288, 99291 – 99292, 99217 – 99220, 99224 – 99226, and 99234 – 99236 are no longer exempted from NY’s surprise bill law;
  • Clarify that the insured’s cost-sharing will be calculated based upon the health insurer’s initial payment amount to the physician, hospital or other care provider
  • Clarify that patients cannot be asked to waive protections for both emergency and surprise out of network bills
  • Clarify that, even if a patient does not sign an assignment of benefits form, upon receipt of a claim from a provider for a surprise bill or for emergency services, an issuer must send the initial payment or notice of denial of the payment directly to the provider
  • Remind health care providers of the federal NSA requirement to post on their website and in their practice location a model form that sets forth patient protections against balance billing

There are also likely to be DFS Circular Letters regarding addressing NSA rules related to continuity of care for patients after a provider leaves a network, and consequences of provider directory misinformation, that will be issued soon as well.


Health Department Update on COVID-19 for New York: Oral Antiviral Treatment, General Updates, and Co-Circulation with Influenza
Join the NYS and NYC Health Departments for a COVID-19 informational webinar tomorrow, Thursday, December 16, 2021, from 1-2 p.m.

To access the webinar visit YouTube Live on December 16 at 1 pm.
Audio number: 844-512-2950. Click here to view the flyer with additional details and to share with interested colleagues. There are no capacity limits, and no registration is required.

MSSNY Calls SCOTUS Ruling on Vaccination Requirement for Health Care Workers “An Important Win for Our Collective Public Health”
Fierce Healthcare (12/14, Landi) reports the Supreme Court on Monday rejected “a challenge to New York’s requirement that health care workers be vaccinated against COVID-19 even when they cite religious objections,” a decision applauded by the Medical Society of the State of New York. The organization called the move an “important win” for public health. MSSNY President Joseph Sellers, MD, said, “We are confident that the Supreme Court ruling signifies another step toward bringing this pandemic to an end. We once again encourage every eligible New Yorker to roll up their sleeves and get vaccinated and boosted against COVID-19.”

MSSNY’s Press Statement

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Mark Your Calendars: MSSNY’s Virtual Lobby Day is on March 8th
Please plan to put aside Tuesday, March 8th for MSSNY’s Annual Physician Advocacy Day. To view the flyer, click here: MSSNY 2022 Lobby Day. To register, click here: Physician Advocacy Registration

The format will be similar to previous years, where assembled physicians and allies will hear from legislative leaders in the morning (via Zoom), and then have virtual visits with their respective legislators in the afternoon (coordinated by their county medical societies).

With COVID cases on the rise across NYS, we will be advocating for policies that encourage vaccination and support fair payment for telehealth care. We will also advocate for proposals that reduce prior authorization hassles. At the same time, we will voice our opposition to policies that would inappropriately expand the scope of practice for non-physicians and mandate how physicians provide care to their patients.

Please plan to join hundreds of colleagues from around the state on March 8th!

Legislation Introduced to Extend and Expand Provide Contract with All Health Care Providers
Legislation (A.8511/Dinowitz, D-Bronx) was introduced this week that would extend contracts between health plans and health care providers that are unilaterally terminated or not renewed, for 120 days from the date of the termination or non-renewal. This will enable patients to continue to see their provider under the terms of the former contract, providing for continuity of care.

Current law requires a 60-day “cooling off” period when either a hospital or health insurer terminates or non-renews a contract with the other.  This bill would not only extend this period of time to 120 days, it would also apply to all healthcare providers who have a contract with a health insurer.  As noted in the sponsor’s memo in support, the bill would provide for coverage during the 120-day period for entities that are part of the provider’s organization included in their previous contract, not just hospitals as is currently the law.

MSSNY is analyzing this legislation. On the one hand, many physicians have brought concerns to MSSNY about being unfairly dropped from health insurer networks without a legal way to challenge this non-renewal.  On the other hand, it could require continued participation in what may be an unfair contract. The sponsor’s memo of support further notes that “When a massive health insurance company and a health care provider organization cannot come to an agreement on rates, New Yorkers who happen to have such insurance should be given ample time to plan for the change in their health care access. This is especially true in areas where one provider dominates a region’s health care market.  Such was nearly the case in the Bronx where United healthcare (UHC) and Montefiore failed to renew their contract for over seven months, placing thousands in jeopardy of losing access to their primary care doctors and health care services provided by Montefiore.

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New York Department of Financial Services (DFS) Secures $3.1 Million For New Yorkers Using Mental Health & Substance Use Disorder Parity Compliance Review
Acting New York State Department of Financial Services (DFS) Superintendent, Adrienne A. Harris, announced yesterday that it had secured $3.1 million following a review of whether New York insurers were in compliance with state and federal cost-sharing requirements for mental health and substance use treatment.

DFS reviewed mental health and substance use disorder parity reports that insurers must submit every two years to gauge if insurers were providing the same level of mental health and substance abuse disorder benefits that they do for medical care. The review found that Aetna, Oscar, and Wellfleet sold policies that required consumers to pay a copayment or coinsurance for mental health and substance use disorder benefits that was not permitted under the law.

The three insurers have agreed to DFS’ findings and signed consent orders. The violations, monetary penalties, and consumer restitution amounts include:

  • Aetna Life Insurance Company was fined $874,000 for violation of MHPAEA and New York Insurance Law, $376,000 for erroneous data reporting, and will return $439.20 to consumers;
  • Oscar Insurance Corporation was fined $1,000,000 for violation of MHPAEA and New York Insurance Law and will return $465,800 to consumers; and
  • Wellfleet New York Insurance Company was fined $425,000 for violation of MHPAEA and New York Insurance Law and will return $7,326.70 to consumers. 

MSSNY worked together with the New York State Psychiatric Association (NYSPA) and other mental health care advocates in 2019 to help enact legislation to establish the parity compliance report requirements. 

The overall DFS monetary penalty is $2,675,000, of which $2,299,000 will go to the Behavioral Health Parity Compliance Fund to provide funding for initiatives that support parity implementation and enforcement, including DFS’ Behavioral Health Ombudsman Program. The remainder of the funds will go to the state’s General Fund. The total amount being returned to consumers is $473,565.90.

Click here to access a copy of the consent orders.  

Judge Orders NYC to Delay Implementation of Retiree Health Care Switch to Medicare Advantage Until April 1st: Opt-Out Period Extended To June 30th
Following negotiations this past summer between municipal unions, and the city of New York, an agreement was reached to transition New York City retirees from their current, traditional Medicare plan to Medicare Advantage (MA) plans. Beneficiaries will have the ability to opt-out of the NYC Medicare Advantage Plus Plan and remain enrolled in their current, traditional Medicare plan. The new plan is being administered by Emblem and Empire Blue Cross/Blue Shield and coverage for these enrollees is now scheduled to begin on April 1, 2022 and retirees have until June 30th
to opt-out of the program all together.

As reported in NY Focus (Judge Orders City to Delay Retiree Health Care Switch Until April 1),  in a three-page order issued on Tuesday, the judge overseeing the case laid out a series of conditions that the city must comply with before implementing the new Medicare Advantage plan. He specified that retirees must be allowed to opt-out of the plan until at least June 30, 2022—three months after the plan is scheduled to go into effect. In addition, the City must take steps to ensure that retirees are fully informed about what treatments and procedures are included in the new plan, and which doctors will and will not be participating. Confusion among retirees about what services will be included in the plan has been widespread, especially after the city mailed them a guide to the plan that contained numerous errors–and then refused to send a follow up correction.

The City must also send retirees a letter correcting the errors in its initial plan by January 7, 2022 and the letter must contain information on how retirees can obtain a corrected Enrollment Guide, free of charge, and list the specific websites with the corrected Enrollment Plan. Moreover, starting January 7, 2022, until the plan becomes active on April 1st, the city must submit biweekly reports detailing its efforts to contact providers to inform them about the plan, and a schedule for how and when it will contact additional providers. The Organization of Public Service Retirees’ underlying case seeking to stop the move outright is still under consideration and will be decided when the preliminary injunction has been lifted.

Many MSSNY members have raised concerns about possible adverse impacts on patients once their new MA coverage becomes effective. To that end, several MSSNY physician leaders met virtually on October 21st with representatives from Empire Blue Cross Blue Shield to discuss questions from physicians regarding the possible impact of the upcoming transition for patient care delivery.  The issue was also discussed extensively at the November 4 MSSNY Council meeting. Moreover, Kings County Medical Society Past-President, Dr. Donald Moore, testified regarding the potential new prior authorization requirements at a hearing about the issue, that was held on Thursday, October 28th by the New York City Council Committee on Civil Service and Labor.

MSSNY will continue to work with affected physicians and their patients to monitor the materials developed for retirees and physicians regarding this transition to ensure they are accurate. Empire and Emblem have also developed educational materials for physicians and other providers including webinars. MSSNY will monitor the impact of the new plans if or when they’re implemented for reports of potential pre-authorization and claims hassles for physicians, and barriers to care for patients.

To view materials provided to MSSNY by Emblem and Empire Blue Cross/Blue Shield:

To access a range of other information shared by the NYC Office of Labor Relations:

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