MSSNY eNews: December 8, 2021 – House Passes Bill to Prevent Medicare Cuts

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House Passes Bill to Prevent Staggering Medicare Cuts Following Sustained Physician Advocacy
On Tuesday night, by a 222-212 vote, the US House of Representatives passed the Protecting Medicare & American Farmers from Sequester Cuts Act which would temporarily hold off most of the cumulative 10% Medicare cuts to physician payment that are scheduled to go into effect January 1, 2022. The bill is expected to be passed by the Senate as well as part of a larger package to raise the debt ceiling.

Specifically, the bill would extend a moratorium on a 2% sequester cut through March 31, 2022 that had been scheduled to expire at year end 2021. It also would delay a 4% budget-balancing cut known as PAYGO until 2023. Finally, it would provide a one-year, 3% increase in the Medicare physician fee schedule, to offset the 3.75% conversion factor cut contained in the 2022 Medicare payment rule.

Gerald E. Harmon, M.D., president of the American Medical Association, praised Congress for “taking a decisive step” and urged Congress to “support this bipartisan proposal and join together again in the new year to develop long-term solutions to address the flaws in the Medicare payment system.”

On Tuesday, 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.”

Until this is finalized, physicians can send a letter to Senators Schumer and Gillibrand urging action to prevent steep Medicare cuts here: Be Heard | Physicians Grassroots Network.

Update on Litigation Related to the IDR Portion of the No Surprises Act and Implementation of Other NSA Requirements
The Physicians Advocacy Institute (PAI) will be filing an amicus brief on behalf of itself as well as MSSNY and the other 9 affiliated state medical associations to support the lawsuit filed by the Texas Medical Association (TMA) against several federal agencies challenging its erroneous implementation of the federal No Surprises Act (NSA).

As has been reported in MSSNY e-news, the TMA lawsuit alleges that, in enacting the Interim Final Rule (IFR) on the NSA, federal agencies: (1) improperly failed to follow direction from Congress about how to implement the Independent Dispute Resolution (IDR) process set forth in the NSA by giving undue weight to the health insurer’s self-determined qualifying payment amount as part of the IDR determination and (2) violated the Administrative Procedure Act by failing to appropriately solicit and incorporate comments from stakeholders.

The American Medical Association together with the American Hospital Association is also expected to file a lawsuit this week in a federal court in the District of Columbia to raise similar legal challenges to the federal agencies’ interpretation of the NSA. MSSNY has had several discussions with the PAI regarding how together they can best assist the AMA in pursuing this legal action, including filing an amicus brief.

Since the NSA’s passage last December, MSSNY working together with many other medical associations across the country have written to and met with federal regulators to encourage rules to ensure a fair implementation of the NSA, including a MSSNY letter to federal officials this week. Like many other groups, the MSSNY letter raised strong objections to federal regulations because, instead of following the statutory language included within the NSA, HHS and other federal agencies designed an IDR process for resolving out of network surprise medical bills that heavily favors health insurance companies in payment disputes by prioritizing health insurer median contract rates over other factors.

The Congressional intent articulated in the NSA was to create an IDR process to protect patients that was appropriately balanced and did not favor either the insurer or the physician in claims disputes. Specifically, the final language adopted by Congress required that numerous factors be considered, including patient acuity or complexity of services, demonstrations of previous good faith efforts to negotiate in-network rates and previously contracted rates, in addition to the insurers’ median in-network rate, without specifying that one factor take precedence over another.

Physicians must also be aware that there are numerous other changes required by the NSA that will take effect January 1 that will impact New York physicians which are not the subject of these legal actions. MSSNY has written multiple newsletter articles that have sought to educate physicians regarding many of the important differences between the NSA and New York’s existing surprise bill law.

MSSNY Comments on COVID Vaccines for Children in USA Today Network and Boosters for Adults on WROC-TV
Some New York Counties Lagging Behind Statewide Rate Of COVID-19 Vaccinations Among Children Aged 5 To 11
The Lower Hudson Valley (NY) Journal News (USA Today Network) reported, “COVID-19 vaccinations among New Yorkers ages 5 to 11 have slowed recently and some counties are lagging far behind the statewide rate.” About 18% of children “in the 5-11 age group have received their first dose, but nearly 40 of the 62 counties statewide fell below that rate, state data on Friday showed.” The article added that “last month, parents who anxiously awaited the approval rushed to get children vaccinated in the early weeks, but demand has waned recently, said” Medical Society of the State of New York President Joseph R. Sellers, MD. Dr. Sellers explained, “There is a group of parents who don’t want themselves vaccinated and don’t want to vaccinate their children, and those are very difficult conversations. … Then, there is a group in the middle that are not sure and need some reassurance, and that’s where we as medical professionals are putting our efforts.”

Encourage Booster Shots to Combat Rising COVID-19 Infections in New York
WROC-TV Rochester, NY reported Monroe County, New York is “under a state of emergency…due to being low on hospital bed spaces and COVID-19 cases still increasing.” On Saturday, “the first group of 26 National Guard Medics” were deployed to “help nursing home staff open more bed space to get recovered elderly patients out of hospitals.” Physicians “and government officials believe the next way to curve the rise in cases” and lower hospitalizations “is getting take-home COVID-19 test kits out to pharmacies, clinics, and physician offices.” Still, physicians “agree the best weapon is getting the vaccine, especially boosters with Omicron now rising.” MSSNY President Joseph R. Sellers, MD, said, “What the booster shot does is it takes the immunity to a higher level of immunity and protection. So, anybody who has been out six months from either Moderna or Pfizer or more than two months from the Johnson and Johnson vaccine we recommend getting a booster.”

MSSNY Tip of the Week: Guide to Value Based Contracting
Value Based Contracting (VBC) is becoming more relevant and widely used. A VBC is a specialized contract between the physician and the insurance company that focuses on multiple areas, including clinical performance and agreed upon pre-determined financial and patient targets that need to be met to achieve rewards (shared savings or bonuses).

A significant component of the VBC is quality-based performance that will yield per-member per-month (PMPM) reimbursement. There is much to know before you enter into a VBC to see if it is right for you. View guidelines from Physician Advocacy Institute to assist in making the right choice for your practice.

If you have questions about this or any other insurance concern, contact MSSNY’s Director of Physician Payment and Practice, Heather Lopez, at 518.465.8085 X332 | hlopez@mssny.org 

Why I’m a MSSNY Member: Lance Austein,  MD, FACP

Tomorrow! MSSNY Micro Masterclass Webinar:  Submitting Formal Insurer Complaints to the Appropriate Agency
Do you have unresolved claims payment issues with an insurer? Not sure how to pursue a resolution? Settle in with your lunch and join Heather Lopez, Director of MSSNY’s Payment and Practice Division, at 12:15 pm on December 9 for a 15-minute masterclass on filing and following up on insurer complaints. Heather will share information on how to determine the proper agency for the complaint as well as providing contact information for each of the agencies. Please register to join us for the webinar.

Attention MSSNY Resident and Fellow Members
You were recently sent a survey asking for your input as to how MSSNY CAN HELP YOU…WE NEED YOUR FEEDBACK!

Please check your e-mail and submit your responses.  You are a significant part of MSSNY, and your input is important to us! You can also click here to access the survey.

32 Hospitals Directed to Limit Non-Essential Procedures Based Upon DOH Criteria
32 hospitals across the State have been ordered by the NYS Department of Health (DOH) to limit non-essential surgeries and procedures starting tomorrow, December 9, based upon their limited bed capacity within their facilities.  The hospitals were ordered based upon the criteria articulated in a DOH “Dear Administrator” Letter (DAL) issued last Friday December 3.

As noted in a MSSNY e-news article last week, as part of a meeting with MSSNY physician leaders and staff, key health staff to the Hochul Administration indicated that a key goal in implementing such a policy is that it be far more measured than previous iterations of elective surgery restrictions.   A few of the notable components of the DAL include:

• The restrictions on elective surgeries do not apply to procedures performed at specialty facilities (such as a cancer treatment facility), non-hospital owned ambulatory surgery centers (ASCs), office-based surgery practices, or free-standing diagnostic and treatment centers.

• The limitations will apply to only those facilities that are in regions of the State considered to be high risk (as defined in the DAL) AND have less than 10% bed availability. The 32 hospitals ordered to limit their elective procedures are located in the North Country, Capital District, Mohawk Valley, Finger Lakes and Western New York regions of New York State (see list below).

• It does not impact services provided by ASCs owned by these impacted Facilities unless the Impacted Facility has less than 5% bed availability based on the previous 7-day average

• The following procedures are considered essential, and not subject to the restrictions.
  • Cancer, including diagnostic procedure of suspected cancer
  • Neurosurgery
  • Intractable Pain
  • Highly symptomatic patients
  • Transplants
  • Trauma
  • Cardiac with symptoms
  • Limb threatening vascular procedures
  • Dialysis Vascular Access

Moreover, there is an important “catch all” provision to provide flexibility to physicians and their patients to enable procedures not listed above at these restricted facilities where “Patients are at a clinically high risk of harm if their procedures are not completed”

MSSNY is continuing to work with various groups to identify possible gaps in the availability of urgently needed patient care arising from this restriction on elective procedures. 

New Compliance Date Set for NY Workers’ Compensation Drug Formulary Regulations (Refills and Renewals)
The NY Workers’ Compensation Board recently issued a bulletin providing an update on the implementation of its new formulary regulations (Subject Number 046-1475). The bulletin reminds WC payers to notify injured workers, their physicians, and their health care providers that refills and renewals of prescription medication must conform to the Formulary within six months of the effective date of the regulation. However, as a result of the COVID-19 pandemic, this deadline was postponed.

On November 15, 2021, the Board announced that refills and renewals must comply with the Formulary before the launch of its new business information system. This system, known as OnBoard: Limited Release (OBLR), is expected to launch in the first quarter of 2022. The Board will announce the rollout date of OBLR, via a WCB Notification email, at least four weeks before launch.

To ensure that physicians and injured workers have adequate notice to prepare for the new compliance date, payers must do the following on or before January 5, 2022:

• Notify physicians and other health care providers of any injured workers they are currently treating with non-Formulary medications so they can either change medications or submit prior authorization requests to continue using the non-Formulary medications.
• Notify injured workers (claimants) who are currently prescribed non-Formulary medications, so they can discuss medication options with their treating physician or health care provider.

These notifications must be issued by WC payers using a format prescribed by the Chair. Please see Injured Worker Formulary Notification and Provider Formulary Notification for the required format.

The bulletin further notes that health care providers and injured workers may receive WCB notification e-mails to ensure that they are notified of the exact date for compliance. Sign up for these emails using this link.

Please Urge Governor to Veto Multiple Pro-Trial Lawyer Tactical Bills
With just a few weeks left in the year, physicians are again urged to contact Governor Hochul’s office to Urge Governor to VETO Regressive Liability Bills (p2a.co) that she veto multiple problematic pro-trial lawyer bills that if signed could have the effect of significantly disadvantaging defendants generally in litigation in New York State, including physicians and hospitals defending against malpractice claims. 

While these bills do not have the same gargantuan premium impact as other legislation sought by the trial bar that would expand lawsuits and awards against physicians, they would continue to make New York’s already dysfunctional medical liability adjudication system even more unbalanced and add to New York’s notorious outlier status with regard to medical liability payouts.  These bills include:

• A8041/S7052 (“The Comprehensive Insurance Disclosure Act”) – Imposes excessive insurance disclosure requirements on defendants during litigation, which has been strongly opposed by many groups. Business groups urge Hochul to veto insurance bill (nystateofpolitics.com)

• A2199/S473 – Expands the time period for the imposition of New York’s excessive 9% judgment interest in cases where a plaintiff’s request for summary judgment was not initially granted, but then overturned on appeal. 

• A8040/S7093 – Changes a long-standing rule that heretofore excluded a “hearsay” statement made by a defendant’s employee.

Medical Updates & Immunization Site Training for All Healthcare Providers led by Pfizer Vaccines US Medical Affairs
Join Pfizer for a training session to educate providers and immunization staff on the proper use of the Pfizer-BioNTech COVID-19 Vaccine.

Session topics include:

• Use of the vaccine for:
• Children 5 through 11 Years of Age
• Individuals 12 Years of Age and Older
• Storage, Handling, Preparation & Administration for the multiple presentations of the vaccine
• Recent medical updates regarding the vaccine
• An overview of healthcare provider resources
• Question and answer session

These sessions will be updated to reflect new information and changes that evolve. Recent updates will be identified at the start of each session.

To access current and future training sessions, please visit:

https://www.pfizermedicalinformation.com/en-us/medical-updates

NYS DOH Releases New Information on Cannabis Use During the Perinatal Period
The New York State Department of Health’s Pregnancy Risk Assessment Monitoring System (PRAMS) website has been updated with a new publication: Data to Action: Cannabis Use During the Perinatal Period: Individual Perceptions and Clinician Advising, New York State, 2017-2018.

On March 31, 2021, the Marijuana Regulation & Taxation Act (MRTA) was passed for legalizing adult-use cannabis in New York State. The MRTA created a new Office of Cannabis Management, governed by a Cannabis Control Board to comprehensively regulate cannabis in New York State. With legal accessibility to cannabis for medical and recreational purposes increasing throughout the nation, it is important for reproductive-aged individuals in NYS and elsewhere to understand the health effects of using cannabis before becoming pregnant, during pregnancy, and while breastfeeding. For clinicians, understanding the prevalence of cannabis use, and perceptions of cannabis use among reproductive-aged individuals informs their practice and advances population health.

This Data to Action provides important baseline data on cannabis use among individuals in the perinatal period (before, during pregnancy and after giving birth), their perceptions about cannabis use while breastfeeding, and interactions with providers regarding cannabis use. This information will be invaluable moving forward with the implementation of the new legislation and underscores the importance and need for screening and education for this vulnerable population from health care providers. These data highlight the need for broader outreach to health care providers and public health professionals about the importance of assessing cannabis use and educating people of reproductive age about potential risks of cannabis use during pregnancy and while breastfeeding.

For more information on the NYS Office of Cannabis Management please visit cannabis.ny.gov. Sign up for updates here.

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