MSSNY eNews: February 25, 2022

No Surprises Act Decision: Good News for Physicians and Patients

Colleagues:

This week brought good news for physicians and our patients. The federal court in Texas appropriately struck down regulations by HHS regarding the dispute resolution process in the No Surprises Act.  MSSNY joined other physicians in supporting the consumer protections in the No Surprises Act but challenged HHS regulations that favored insurers over treating physicians in the dispute resolution process—which are contrary to Congressional intent.

MSSNY was concerned that HHS’s faulty interpretation of the law—the very basis of the lawsuit—could lead to patient access issues in hospitals across New York and across the country because it impacts the ability of hospitals to have needed on-call specialty care physicians.

The court upheld Congressional intent of the law to ensure that no one individual data point submitted to a federal dispute resolution process—not even the insurers’ self-determined grossly discounted “median in-network” payment data—should be the dominant consideration in the dispute resolution process.

The Texas federal court agrees with the chief allegation in the lawsuit brought by the Texas Medical Association that HHS’s regulations diverted from the plain language of the No Surprises Act to the benefit of insurance companies—and against physicians and hospitals on the front lines of health care delivering care to patients every day.

This decision does not in any way impact the important patient protections set forth under the law and implementing regulations.  It will only serve to ensure greater balance for an independent dispute resolution process.

That’s good news for everyone.

Joseph Sellers, MD, FAAP
MSSNY President.

Podcast: No Surprises Act Court Ruling & Positive Developments in the NYS Budget
Listen to MSSNY’s February 25 podcast as Senior Vice-President & Chief Legislative Counsel Moe Auster breaks down this week’s No Surprises Act Court Ruling and recent developments in the NYS Budget. 

Join us for MSSNY’s Virtual Lobby Day on March 8^th
We are now just 10 days away from MSSNY’s Virtual Physician Advocacy Day on Tuesday, March 8^th.  If you have not already, please sign up to join hundreds of your colleagues across the state who will be participating. Register Now!

The format will follow last year’s format, where assembled physicians and allies will hear from legislative leaders and key health care policy Committee Chairs in the morning (via Zoom) starting at 8 AM, and then have virtual visits with their respective legislators following the morning program (coordinated by their county medical societies).

The $216 Billion dollar budget proposed by Governor Hochul last month will have a profound impact on all New York physicians. In her budget, Governor Hochul articulated support for a number of measures advocated by MSSNY such as: support for telehealth payment parity, significant increases in loan repayment programs for physicians, increases in Medicaid payments and increased eligibility for subsidized health insurance coverage for patients. However, she also indicated support for measures where physicians have raised strong concerns, such as imposing new prior authorization requirements for prescriptions for patients covered by Medicaid and Medicaid managed care, permitting pharmacists to perform dozens of so-called “limited service” lab tests without coordination with the patient’s physician, and eliminating statutory collaborative agreement requirements for nurse practitioners to practice in collaboration with a physician.

There are countless other items that will be under discussion this legislative session as well, including further proposals to change scope of practice of various non-physician practitioners, proposals to reduce health insurer prior authorization hassles, and proposals to address various public health threats. We urge all physicians to join their colleagues in advocacy to their legislators to protect access to quality care for their patients. Register Now!

Governor Hochul’s 30-Day Budget Amendments Removes Requirement for Physicians to Pay Upfront for Excess Liability Coverage
As reported last week, the 30-day amendments to the Governor’s Executive Budget have removed the requirement for the 17,000 physicians enrolled in the Excess Medical Malpractice Insurance Program to pay upfront for the coverage and then be reimbursed in 2 yearly installments.  Because MSSNY had strongly opposed this upfront payment requirement, this is a positive change from the original proposal.

For 35 years, the Excess Medical Malpractice Insurance Program has provided tens of thousands of New York physicians with a supplemental layer of liability insurance above their purchased $1 million/$3 million primary layer because New York has medical liability insurance costs that far exceed any other state. In the absence of comprehensive liability reform to bring down these costs, continuation of this program is absolutely essential for maintaining stability in our healthcare system. Therefore, MSSNY remains concerned that the revised Budget proposal would break up the payments to the carrier (MLMIC) into 2 yearly installments.  This could adversely impact the stability of the program in the future. MSSNY will continue to advocate for the program to continue “as is” in the absence of comprehensive liability reform to bring down New York’s excessive liability risks and costs.  

Please Contact Your Legislators to Urge Support for Payment Parity for Telehealth Services in FY2022-23 Budget
As Governor Hochul and the state legislature discuss the details of her FY2022-23 budget proposal, MSSNY urges lawmakers to include payment parity for care delivered via telehealth. You can join us in this effort by sending a letter of support here.

Since the beginning of the pandemic, steps have been taken to enhance patient access to Telehealth services, but none have addressed the gross disparity in payment for care delivered virtually, compared to in-office visits.  For example, according to a survey by the NY chapter of the Medical Group Managers Association (MGMA), only 23% of all health plans across New York State pay patient Telehealth services equal to what they pay community-based physicians for comparable in-office patient care. Investment in telehealth services is essential to ensuring that patients can get the care they need, particularly those with limited mobility and comorbid conditions.

Federal Court Issues Ruling Concluding Federal Agencies Improperly Interpreted No Surprises Act
A Federal District court in Texas ruled this week that regulations implementing the independent dispute resolution process used to resolve surprise medical billing payment disputes, as established through the federal No Surprises Act, “conflicts with the law” and “must be set aside under the Administrative Procedures Act.”

MSSNY, through the Physicians Advocacy Institute, had joined an amicus in support of action brought by the Texas Medical Association challenging the overreaching regulations. MSSNY also joined an amicus in support of parallel action brought by the American Medical Association and the American Hospital Association in a DC federal district court.

To be clear, the lawsuit did not set aside the numerous important patient protections included in the No Surprises Act. It addressed only one aspect of the law relating to how much weight was given to insurance companies’ self-determined median payment in a dispute resolution process between physicians and insurers.

US House Ways and Means Committee Chair Richard Neal (D-Massachusetts) and Ranking Member Kevin Brady (R-Texas) made the following statement on the ruling: “Yesterday’s decision affirms that the No Surprises Act, as written, will continue to protect patients but must swiftly be implemented according to the letter of the law to ensure fairness in resolving surprise medical billing disputes. A level playing field is essential. Processes that tip the scales towards either party are untenable and will result in worse outcomes for patients.”

MSSNY President Dr. Joseph Sellers noted that “The court upheld Congressional intent of the law to ensure that no one individual data point submitted to a federal dispute resolution process—not even the insurers’ self-determined grossly discounted ‘median in-network’ payment data—should be the dominant consideration in the dispute resolution process. The Texas federal court agrees with the chief allegation in the lawsuit brought by the Texas Medical Association that HHS’s regulations diverted from the plain language of the No Surprises Act to the benefit of insurance companies—and against physicians and hospitals on the front lines of health care delivering care to patients every day.

He further added that “This decision does not in any way impact the important patient protections set forth under the law and implementing regulations. It will only serve to ensure greater balance for an independent dispute resolution process.”

Please remain alert for further updates on what will happen next in these court cases, and its impact on the submission of claims to the federal independent resolution process. This was a very important initial ruling.

Medicaid Announces Proposal to Increase Physician Payments for E&M Codes
The New York State Department of Health announced this week that it is intending to, as part of its 2022-2023 Fiscal Year Budget, increase Medicaid payment rates for Evaluation & Management codes provided by physicians and other care providers to 70% of the Medicare fee schedule. According to a recent Kaiser Family foundation report, primary care services are currently only paid at 44% of the Medicare fee schedule in New York. While MSSNY continues to advocate that Medicaid payments should be increased to be at least on par with Medicare payments, this is an important step given the long history of underpaying physicians for providing needed care to patients insured by Medicaid.

The plan was announced as part of an overview of the Medicaid aspects of the Executive Budget provided by top DOH staff. DOH staff noted that Medicaid payment rates for most physician services have not been updated since 2009, and that increased rates will incentivize providers, including primary care providers, to increase their participation with Medicaid and improve access to primary care services. The DOH further noted in response to questions that the requirement would not extend to rates paid by Medicaid Managed care plans (which represents a significant amount of state Medicaid enrollees). This is because when the DOH queried Medicaid managed care plans in New York, it was reported that most already pay at the 70% of Medicare level.

Please Urge Your Legislators to Protect Physician-Led Team Care
Physicians are urged to contact their Senators and Assemblymembers to oppose an Executive Budget proposal, as well as stand-alone legislation (S.3056-A/A.1535-A), that could lead to uncoordinated, siloed care by eliminating statutory requirements for nurse practitioners to maintain collaborative arrangements with a physician practicing in the same specialty. A letter can be sent from here: Protect Physician-Led Team-Based Care for Patients (p2a.co).

As part of last year’s State Budget, there was a provision enacted that extended until June 30, 2022, the existing law that permits nurse practitioners with more than 3,600 hours of experience to practice without a written collaborative agreement, provided they maintain evidence of “collaborative relationships” with a physician in the same specialty. The Governor’s Budget proposal would remove the requirement for primary care NPs to maintain evidence of collaborative relationships with primary care physicians, and S.3056-A/A.1535-A would remove these requirements entirely.

In an Assembly public hearing this past November, and in communication with the Governor’s office, MSSNY raised concerns that the crisis standard of care that led to the waiving of these important patient protections during the height of the pandemic should not become the general standard of care.  These communications highlighted a recent MSSNY survey in which 65% of physician respondents indicated that advanced care practitioners working independently during the pandemic under the Governor’s Executive Orders (waiving physician supervision requirements) had committed an error while treating a patient, and 80% indicated that the error could have been prevented had there been physician oversight.  

MSSNY Seeks NYS Funding for the Veterans Mental Health Training Initiative
For several years, the Veterans Mental Health Training Initiative (VMHTI) was funded through a legislative add-on to provide skills, development, and education for primary care physicians and other mental health providers to treat veterans within their practice. This initiative is a partnership between the Medical Society of the State of New York, The New York State Psychiatric Association, and the National Association of Social Workers-New York State.

These associations work to deliver free training to service providers across New York. They also work with counties implementing the NYS Joseph P. Dwyer Veterans Peer Support programs, which provide holistic care for returning veterans. Through this initiative, MSSNY has been able to provide seminars, webinars, and other online programming to MSSNY’s county medical societies and hospitals. MSSNY is asking physicians to send a letter on the VMHTI through its Grassroots Action Center (GAC) to ensure that this funding is included in the state budget.

Registration Now Open – March 16, 2022 @ 7:30am
Medical Matters CME Webinar
Antivirals, Antibodies & Testing
The landscape of treatment options for COVID-19 has been changing throughout the pandemic. Learn more about EUA approved antivirals, developments in monoclonal antibodies, and testing options by registering for “Antivirals, Antibodies & Testing” on Wednesday March 16 at 7:30 a.m. William Valenti, MD, chair of MSSNY Infectious Diseases committee, will serve as faculty for this program. Register now.

Educational objectives are:

• Examine antiviral treatments for COVID
• Investigate best practices for monoclonal antibodies in treating COVID.
• Summarize COVID testing options

Additional information or assistance with registration may be obtained by contacting Melissa Hoffman at mhoffman@mssny.org

The Medical Society of the State of New York is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians.

The Medical Society of the State of New York designates this live activity for a maximum of 1.0 AMA PRA Category 1 credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity. 

Webinar on “Building a Sustainable Telehealth Practice: Lessons from the Cloud”
Registration Now Open – March 18, 2022 @ 7:30am
Throughout the COVID pandemic, physicians and practices’ use of telehealth increased dramatically. While many were not prepared for the shift in medicine, HHHN has optimized the use of telehealth for many years. Learn more about the implementation and optimization of telehealth by registering for “Building a Sustainable Telehealth Practice: Lessons from the Cloud” Friday March 18^th, 2022, at 7:30 a.m. Register now.

Kevin Gallagher, M.D, and Sean Philpott-Jones, Ph.D., MSBe, from Hudson Headwaters will serve as faculty for this program. The faculty have been selected to present because of their intensive involvement in implementing telehealth in their practice. HHHN has been a leader in the telehealth realm for many years and serves as a great example for other practices to follow.

Educational objectives are:

1. Understand the legal and regulatory requirements to establish a sustainable telehealth practice
2. Describe evidence-based strategies to implement and optimize telehealth programs
3. Develop and implement solutions to address common, systemic challenges to telehealth implementation.

This program is funded by the AMA and Physician’s Foundation, and is part of The Telehealth Initiative (TTI).

Additional information or assistance with registration may be obtained by contacting Cayla Lauder, MPH, at clauder@mssny.org.

The Medical Society of the State of New York is accredited by the Accreditation Council for Continuing Medical Education (ACCME) to provide continuing medical education for physicians.

The Medical Society of the State of New York designates this live activity for a maximum of 1.0 AMA PRA Category 1 credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

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Physicians’ search services • allied medical placements • locum tenens • practice valuation • practice brokerage • practice consulting • real estate

For help, information or to place your ad, call Roseann Raia at 516-488-6100
ext. 302
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