MSSNY eNews: September 15, 2021
Federal Judge Temporarily Restrains Enforcement of Healthcare Worker Vaccination Mandate as it Pertains to Religious Exemptions
A Central New York federal judge this week issued a ruling that will, at least temporarily, permit health care workers to evade the State’s vaccination requirement if they put forward a religious exemption. The court’s decision will be revisited on September 28, one day after the requirement is set to go into effect.
MSSNY President Dr. Joseph Sellers issued a statement expressing dismay with the federal court’s ruling, noting that “No major religious denomination opposes vaccinations, and the Supreme Court has for over 100 years upheld vaccination requirements as a means to protect the public health.”
As was previously reported last week, the New York Public Health and Health Planning Council (PHHPC) approved an emergency regulation requiring health care workers in all Article 28 regulated settings – hospitals, nursing homes, clinics, Ambulatory Surgery Centers, dialysis facilities, etc. – to be vaccinated against COVID-19.
This includes physicians and other care providers who may not be employed directly but who provide care at these health care settings (such as a physician with privileges at a hospital or who sees patients at a nursing home). There is an exemption for health care workers for documented medical contraindications, but after objection from various groups including MSSNY, the proposed “religious exemption” to this vaccination requirement was dropped from the regulation.
President Biden also announced that he would impose a vaccination worker mandate on hospitals, dialysis, home health, and ambulatory surgical centers also require vaccinations that accept Medicare and Medicaid payments. According to the AMA, it is not applicable to private physician offices.
The DOH regulation provides that an acceptable medical exemption to the required vaccine is where a “licensed physician or certified nurse practitioner certifies that immunization with COVID-19 vaccine is detrimental to the health of member of a covered entity’s personnel, based upon a pre-existing health condition”.
It further provides “the requirements of this section relating to COVID-19 immunization shall be inapplicable only until such immunization is found no longer to be detrimental to such personnel member’s health.” Furthermore, it instructs these covered health care entities that “the nature and duration of the medical exemption must…be in accordance with generally accepted medical standards, (see, for example, the recommendations of the Advisory Committee on Immunization Practices of the U.S. Department of Health and Human Services), and any reasonable accommodation may be granted and must likewise be documented in such record.”
The ACIP has developed information regarding clinical considerations for practitioners here: Interim Clinical Considerations for Use of COVID-19 Vaccines. The only listed contraindications are:
- Severe allergic reaction (e.g., anaphylaxis) after a previous dose or to component of the COVID-19 vaccine; and
- Immediate (within 4 hours of exposure) allergic reaction of any severity to a previous dose or known (diagnosed) allergy to a component of the vaccine
Moreover, as with other mandatory vaccinations, physicians or other care providers risk disciplinary sanction for certifying a medical exemption without an adequate medical justification for doing so.
MSSNY Opposes Northern District Decision to Permit Religious Exemptions to State’s Healthcare Worker Vaccination Requirements
The following statement was sent to the press on September 14:
Statement Attributable to:
Joseph R. Sellers, MD, FAAP, FACP
President, Medical Society of the State of New York
“We are greatly dismayed by today’s decision by the Northern District of NY to permit, at least temporarily, religious exemptions to the state’s health care worker vaccination requirements. We believe this step will result in a flurry of attempts to circumvent the well-reasoned vaccination requirement that was an important step towards reversing the recent surge attributable to the more easily spread Delta variant.
“These vaccination requirements are essential to protecting public health, particularly the immunocompromised, the elderly, and those too young to receive the vaccination. No major religious denomination opposes vaccinations, and the Supreme Court has for over 100 years upheld vaccination requirements to protect the public health. We are hopeful that this decision will be reversed two weeks from now when it comes up for consideration again.”.
Media Coverage of MSSNY Statement on Decision to Permit Religious Exemptions to State’s Healthcare Worker Vaccination Requirements
MSSNY President Dr. Joseph Sellers was quoted in the following media outlets:
CBS NY – 09/14/21
Judge Blocks New York State Medical Worker Vaccine Mandate
AP – 09/15/21
Judge blocks medical worker vaccine mandate in NY state
AP story also ran in:
WDBD FOX 40 Jackson
New York Times Post
The Leader Herald
PressFrom – Germany
New York Amsterdam News
Digital Press Network
Think Business Today
Lockport Union-Sun & Journal Online
The Witness Daily
The World Insiders
Travel Leisure Mag
In The Headline – [Newswire]
Brown County Democrat
Bay News 9
The Titusville Herald
The Washington Times
The Daily Feeder
USA Today Network/Evening Tribune – 09/15/21
NY’s medical worker COVID vaccine mandate entangled in lawsuits, protests. What’s next
Buffalo News – 09/15/21
Judge issues temporary halt to state’s Covid vaccine mandate on all health care workers
Buffalo News story also ran in:
The Marietta Daily Journal
The Cherokee Ledger News
The Evening Tribune
Newsday – 09/15/21
Judge: Temporary religious exemption for health workers refusing vaccine
WBFO NPR – 09/15/21
NY may have to allow religious exemptions to the COVID vaccine for healthcare workers, judge says
NPR story also ran in:
WMHT – 09/15/21
Passage of American Rescue Plan (ARP) & Enhancements to New York’s Essential Plan Lead to Surge in Enrollment for NY State of Health
The New York State Department of Health (NYSDOH) released information today Health Insurance Coverage Update showing that the state’s official health plan Marketplace, NY State of Health, benefited from the implementation of both the American Rescue Plan Act and 2021 enhancements to New York’s Essential Plan. Among the benefits were increased affordability and accessibility to Marketplace coverage.
Specifically, the report shows that as of the end of August, more than 6.3 million individuals—or one in three New Yorkers—are enrolled in health coverage through the Marketplace. Enrollment has steadily increased across all marketplace programs since April 2021 when New York began implementing these changes.
The American Rescue Plan became law on March 11, 2021 and increased the amount of financial help available to consumers, and extends tax credits to higher income New Yorkers for the first time, significantly lowering the monthly premium cost of health Insurance available through the NY State of Health. Since April 2021, more than 40,000 New Yorkers have enrolled in health coverage with this new financial assistance.
The report also discusses other areas where New Yorkers are also benefitting from several state actions, during the last legislative session, that enhance Essential Plan coverage and ease access to public coverage. The FY 2021 Enacted Budget included several enhancements that make Essential Plan coverage more affordable and expand covered benefits. NY State of Health now offers all eligible New Yorkers Essential Plan coverage with no monthly premium, no annual deductible, as well as dental and vision coverage for all enrollees at no extra cost. The Essential Plan has always included comprehensive benefits, free preventive care, and low copayments.
To learn more, please see the full NY State of Health’s Health Insurance Coverage Update, which provides examples of the impact of federal and state health policy changes on individuals across New York State. The September 2021 Health Insurance Coverage Update is available at https://info.nystateofhealth.ny.gov/enrollmentdata.
To learn more about the American Rescue Plan, please visit: https://info.nystateofhealth.ny.gov/americanrescueplan. To learn more about the Essential Plan, please go to: https://info.nystateofhealth.ny.gov/essentialplan.
Physician Input Needed for NYSDOH COVID-19 Vaccine Booster Dose Campaign
NYS is actively planning for the COVID-19 Vaccine Booster Dose Campaign (pending FDA and CDC approvals). The NYSDOH is looking forward to extensive participation from the NYS provider community given Pfizer and Moderna vaccine supply constraints no longer exist. This includes providers who did not participate in the initial COVID-19 vaccination program as well as those who did administer COVID-19 vaccine. To ensure NYS has the capacity they expect from the existing enrolled provider community, they are asking providers OUTSIDE OF NYC to please confirm your participation in the booster campaign.
If you are one of the following provider groups – you may disregard this survey:
- Providers who practice in NYC only
- Long term care facilities (nursing homes/SNFs, ACF, assisted living, senior home, adult home, OPWDD)
- Hospitals (including Inpatient Psychiatric Hospitals)
- Correctional facilities (adult and juvenile)
- Retail Chain Pharmacies
All other providers – including those who do not expect to participate in the booster campaign – please respond to the survey ASAP. It is past due, but we have kept the survey open to collect more responses. It is a short survey:
- 4 questions re: your organization (your organization is prepopulated – please check if you are on the list and complete the survey if you are!)
- 2 questions re: past administration of COVID-19 vaccine
- 4 questions re: intent and capacity to administer boosters
- 2 questions re: seasonal influenza vaccine administration
- 2 questions re: efficiencies/barriers
Here is the link to the online survey: https://www.surveymonkey.com/r/booster21.
If you are NOT CURRENTLY ENROLLED in the NYS COVID-19 Vaccination Program but are interested in administering vaccine – please go here for information regarding participating in the program.
PhRMA Updates its Code on Interactions with Health Care Professionals
The Pharmaceutical Research and Manufacturers of America (PhRMA) recently updated their voluntary Code on Interactions with Health Care Professionals (“PhRMA Code”) with changes that will take effect on January 1, 2022. Click here for more information: Statement on Revisions to the PhRMA Code on Interactions with Health Care Professionals
PhRMA noted that its revisions are as follows:
- Purpose: The PhRMA Code has long recognized that company-sponsored speaker programs provide important substantive educational information about the benefits, risks and appropriate uses of company medicines and related disease states. Building on this fundamental principle, the PhRMA Code now reiterates that the purpose of a speaker program should be to present substantive educational information designed to help address a bona fide educational need among attendees, taking into account recent substantive changes in relevant information (e.g., new medical or scientific information or a new FDA-approved indication for the product) or the importance of the availability of such educational programming. Invitations to speaker programs should be limited to those who have a bona fide educational need for the information presented at the program.
- Incidental meals and modest venues: The PhRMA Code has long emphasized that meals offered as an incidental business courtesy to attendees of company-sponsored speaker programs should be modest as judged by local standards. The updated PhRMA Code reiterates this point and states that pharmaceutical companies should not pay for or provide alcohol in connection with speaker programs. The updated PhRMA Code also clarifies that high-end restaurants and other such venues are not appropriate locations for speaker programs.
- Attendance: The updated PhRMA Code clarifies various principles related to attendance at speaker programs. The PhRMA Code now states that repeat attendance at a speaker program on the same or substantially the same topic where a meal is provided to the attendee is generally not appropriate, unless the attendee has a bona fide educational need to receive the information presented. Furthermore, the PhRMA Code clarifies that attendance by speakers as participants at programs after speaking on the same or substantially the same topic is generally not appropriate. Finally, the PhRMA Code has long stated that spouses or other guests should not attend company-sponsored informational presentations unless these individuals are health care professionals for whom the informational presentation is appropriate. The PhRMA Code clarifies that attendance by friends, significant others, family members and other guests of a speaker or invited attendee is not appropriate, unless these individuals have an independent, bona fide educational need to receive the information presented.
Donate to MSSNYPAC Today to Have Donation Count Toward Your County’s Award
This weekend MSSNY will convene its annual House of Delegates. While there are many important works to be accomplished, the principal business of the HOD will be to decide the organizations healthcare policy pursuits for the coming legislative session. Every delegate is urged to participate in political action efforts to help translate these policy initiatives into enacted statues and regulations. Our goal for this event is to raise $100K in commitments from among all the participants. Awards will be finalized and presented for the following categories:
- DISTINCTION: Counties have increased PAC membership by at least [10%] since prior year. Outstanding Membership Improvement
- HONORABLE MENTION: Counties have achieved [10%] of Member to Potential. Outstanding Membership Recruitment
- DISTINGUISHED MERIT: Counties have contributed more than [$10,000] to MSSNYPAC since 9/13/20. Outstanding Revenue Achievement
- HOD MERIT: 100% of Delegates from the county contributed to MSSNYPAC. Outstanding Peer Recruitment
Make your donation today at www.mssnypac.org/contribute to have your donation count toward your county’s award!
MSSNY’s General Counsel Garfunkel Wild to Present Overview of Legal Services Available to Member Physicians on Friday, September 17
Garfunkel Wild’s Barry B. Cepelewicz, M.D., Esq. will present an overview of the firm’s legal services during a break in MSSNY’s CME events this Friday, September 17 at 12:30 pm.
With over 80 attorneys, Garfunkel Wild serves MSSNY members’ needs from medical school to retirement. MSSNY members, if eligible, receive a discount on regular billing rates. The firm helps MSSNY members negotiate, draft, and review all types of agreements, from employment contracts, wills, and real estate agreements to shareholder and operating agreements, managed care/third-party payor participation agreements, billing, and other vendor agreements. Moreover, the firm’s attorneys can work with our physicians to develop, implement, and supervise corporate compliance programs, to prepare for and defend against both routine and more complex audits, investigations, and reimbursement appeals, and to protect our licenses before professional licensing boards.
Please click the link below to join the webinar at 12:30 pm on Friday, September 17:
Keep Up the Pressure! Urge Congress to Push Back Against Steep Medicare Cuts for 2022
Physicians are again urged to contact their local Representatives of Congress to request that they join a letter (“Dear Colleague” letter) initiated by Reps. Ami Bera, MD (D-CA) and Larry Bucshon, MD (R-IN) demanding action by Congress to prevent a nearly 10% cumulative cut to Medicare physician payment in January 2022. Please ask your Representative to sign-on NOW!
The deadline for the letter is October 7. We thank the following New York delegation members for signing on so far. Delgado (D-Hudson Valley); Garbarino (R-Long Island); Katko (R-Syracuse); and Morelle (D-Rochester).
In what amounts to a “perfect storm” of payment cuts going into effect on January 1, 2022, physician practices face the following stack of Medicare financial hits:
- Expiration of the current reprieve from the repeatedly extended 2% sequester stemming from the Budget Control Act of 2011. Congress took action earlier this year to prevent the 2% cut but that authorization expires 1/1/22.
- Imposition of a 4% Statutory “PAYGO “sequester resulting from passage of the American Rescue Plan Act. Should lawmakers fail to act, it will mark the first time that Congress has failed to waive Statutory PAYGO.
- Expiration of the Congressionally enacted 3.75% temporary increase in the Medicare physician fee schedule (PFS) conversion factor to avoid payment cuts associated with budget neutrality adjustments tied to PFS policy changes.
This would result in a combined 10 % payment cut on January 1! And all of this comes at a time when physicians are still confronting the pandemic, and practices recover from the enormous emotional and financial impact of the public health emergency. It’s time to give New York’s and our country’s physicians the peace of mind they deserve as they continue to fight on the front lines of the COVID-19 pandemic without having to worry if their practices will survive these potentially catastrophic cuts.
MSSNY has been working together with the AMA and other state and specialty medical associations to prevent these cuts from going forward. Please contact your Representative today and urge them to show their support by signing on to Reps. Bera and Bucshon’s “Dear Colleague” letter.
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