MSSNY eNews: September 8, 2021 – MSSNY Urges No Surprises Act Methodology that is Not Biased Towards Insurance Companies

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MSSNY Submits Comments Urging Methodology for No Surprises Act that is Not Biased Towards Insurance Companies
MSSNY President Dr. Joseph Sellers this week submitted comments on behalf of New York’s physicians to the US Department of Health & Human Services regarding regulations to implement portions of the federal No Surprises Act enacted by Congress last December, and in effect January 1, 2022.  This effort has been joined by many other medical associations, including the American Medical Association and state and specialty societies across the country, urging similar rules for implementation.

The letter notes that MSSNY strongly supports the goal of the regulation to protect consumers, including specific provisions to help reduce cost-sharing obligations for patients, and provisions to ensure enforcement of the “prudent layperson” standard and other protections impacting upon the delivery of emergency care. However, MSSNY also raised concerns about the proposal to calculate the Qualifying Payment Amount (QPA) to be considered in any Independent Dispute Resolution (IDR). If implemented as proposed, it will be unfairly held artificially low (and be biased towards insurers) since it treats payments to individual physicians equally with payment to large physician practices.  MSSNY also urged that there be a far more robust information disclosure requirement imposed on insurers regarding how the QPA was calculated, as well as a detailed process for auditing health insurers to ensure they are being honest in developing this information.

Furthermore, MSSNY raised concerns that the faulty methodology for QPA calculation poses a risk of negative impact on access to care.  Many hospitals and other providers rely on out-of-network specialists to cover care, including emergency and urgent care and complicated procedures.  This is particularly true for rural and urban areas with unmet needs.  The letter notes that if the QPA is fundamentally unfair to physicians we may see coverage and access to care issues, particularly in hospital emergency departments as it may not be feasible for some out-of-network physicians to continue to take calls for patients. This was a critical public health aim that New York’s similar law sought to address when it was passed by the State Legislature in 2014.

Given these profound concerns, MSSNY argued that the QPA should not be the priority factor in determining  payment under an IDR, and that all factors should be weighted equally.

Check with Your Legal Counsel Whether You Are Required to Follow Federal or State Infection Disease Employee Protection Standards
Physician offices should consult with their legal counsel to determine if they are required to comply with the recent federal OSHA Emergency Temporary Standard (ETS) rules for protecting employees from airborne COVID-19 transmission or instead required to comply with newly enacted state requirements for all employers who are not subject to federal rules.

In July, MSSNY’s General Counsel law firm, Garfunkel Wild, prepared an alert OSHA Issues Emergency Rules For Healthcare Employers And Updated Guidance For All Employers | Garfunkel Wild, that provided a summary of the requirements for the OSHA ETS.  The alert notes that exempted from compliance with the OSHA ETS are “employers performing healthcare services on an outpatient basis in a non-hospital setting, if non-employees are screened prior to entry and people with suspected or confirmed COVID-19 are not permitted to enter.”

However, employers that are exempt from the OSHA ETS must establish an airborne infectious disease plan required by New York State for all employers under the “HERO” Act. This week Governor Hochul announced that the Commissioner of Health had designated COVID-19 as a highly infectious communicable disease that presents a serious risk of harm to the public health, which requires all employers to implement workplace safety plans in the event of an airborne infectious disease, helping to prevent workplace infections The New York State Department of Labor (NY DOL) has developed model forms for all New York employers to adopt NY HERO Act.

The question is whether physician offices are required to follow the federal OSHA ETS or the NY HERO Act standards.  MSSNY has received clarification from the NY DOL that “the standard published by the Department provides that it does not apply to ‘Any employee within the coverage of a temporary or permanent standard adopted by the Occupational Safety and Health Administration setting forth applicable standards regarding COVID-19 and/or airborne infectious agents and diseases.’  As such, employers within the coverage of the current OSHA ETS (which is currently limited to healthcare) are not currently required to take action or adopt a plan pursuant to the NY HERO Act.”

Therefore, whether a physician’s office is required to follow the federal OSHA ETS or the NY DOL standard may vary from office to office.  For example, a primary care practice that treats patients with suspected COVID-19 would likely be required to comply with the federal OSHA standard, but an orthopedic practice that instructs all patients with suspected COVID-19 to not enter the office may not be required to follow the federal standard but instead would be required to comply with New York’s HERO Act standards.

To repeat, physicians should consult with their legal counsel for how best to ensure their offices comply with these state or federal requirements, since they will need to comply with one or the other.

Key Public Health Committee Approves Health Care Worker Vaccination Mandate
As reported last week, the New York Public Health and Health Planning Council (PHHPC) has 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.

Based upon the recommendation of MSSNY’s Emergency Preparedness and Infectious Disease Committees, MSSNY President Dr. Joseph Sellers recently issued a statement supporting mandatory vaccination of health care workers as one important step to increase our vaccination rate and reduce the spread of COVID-19: MSSNY Applauds NYS COVID-19 Vaccination Mandate for Healthcare Workers

The regulation will require health care workers at hospitals and nursing homes to have a first dose by September 27, and for other Article 28 regulated settings, by October 7.  The regulation will be effective for 90 days.

According to the regulation, 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 stated in the personnel employment medical record, or other appropriate record, and 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.

Please Urge Governor to Sign into Law 2 Bills to Assist Patients to Receive Needed Medications
Physicians are urged to contact Governor Hochul to request that she sign into law legislation passed at the end of the Legislative Session critical to helping patients to be able to receive the medications they need as well as to ensure greater oversight over pharmacy benefit formulary development practices.   A letter or tweet can be sent from here: Urge Gov. Hochul to SIGN two RX bills – Regulating PBMs and Restricting Mid-Year Formulary Changes.

The first bill (A.1396, Gottfried/S.3762, Breslin), will provide greater accountability and transparency of the practices of pharmacy Benefit Managers (PBMs). The bill was significantly revised from the version that passed the Legislature in 2019, but vetoed, to address concerns raised in your veto message.  The bill would require that PBMs be licensed by the Department of Financial Services (DFS) and adhere to standards established by DFS. The bill would also provide for the disclosure of all possible revenue streams and 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. A substantially similar passed the Assembly and Senate in 2019 but was vetoed. To address concerns raised in the 2019 veto message, the new legislation would prohibit the applicability of a mid-year formulary change for those patients who were on the medication at the beginning of the policy year or suffer 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.

Both of these bills would help to minimize hassles for patients in obtaining needed medications and reduce hassles for physicians in prescribing medications.  Please contact Governor Hochul today.

Urge Your Members of Congress to Push Back Against Steep Medicare Cuts for 2022
Physicians are again urged to contact their local Representatives of Congress to urge them to join a letter demanding action to prevent a nearly 10% cumulative cut to Medicare physician payment in January 2022.  Ask your representative to sign-on NOW! Reps. Ami Bera, MD (D-CA) and Larry Bucshon, MD (R-IN) recently circulated a “Dear Colleague” letter to send US House leadership highlighting the financial uncertainty within the Medicare payment system and the dangers facing the physician community if Congress fails to enact legislation to address these problems.

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.
• A statutory freeze in annual Medicare PFS updates under the Medicare Access and CHIP Reauthorization Act (MACRA) that is scheduled to last until 2026, when updates resume at a rate of 0.25% a year indefinitely, a figure well below the rate of medical or consumer price index inflation.

This would result in a combined 9.75 % 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. A strong collection of bipartisan cosigners to the Bera-Buchson letter will help demonstrate to House and Senate leadership that this confluence of payment cuts needs to be prevented via legislation ASAP.  Please contact your Representative today and urge them to show their support by signing on to Reps. Bera and Bucshon’s “Dear Colleague” letter.

MSSNY Member Obituaries

ATWELL, Marshall Erding; Rochester NY.  Died January 12, 2021, age 84.  Monroe County Medical Society

BLUM, Craig E.; Orchard Park NY.  Died August 04, 2021, age 71.  Erie County Medical Society

BRANDT, Max; New York NY.  Died March 16, 2021, age 90.  New York County Medical Society Inc.

DEHAVEN, Kenneth E.; Rochester NY.  Died June 20, 2021, age 82.  Monroe County Medical Society

EMMENS, Robert Walter; Rochester NY.  Died August 02, 2019, age 78.  Monroe County Medical Society

GANDELL, David Lee; Rochester NY.  Died March 04, 2021, age 68.  Monroe County Medical Society

GINSBURG, Selig M.; New York NY.  Died August 01, 2021, age 96.  New York County Medical Society Inc.

GOLDSTEIN, Robert S.; New Rochelle NY.  Died August 16, 2021, age 84.  New York County Medical Society Inc.

GUERINOT, Gerard Thomas; Rochester NY.  Died January 02, 2021, age 89.  Monroe County Medical Society

HARRIS, Jerome R.; Laguna Woods CA.  Died July 08, 2021, age 100.  Medical Society County of Queens Inc.

KIM, Doo Joe; Cornwall NY.  Died April 17, 2021, age 86.  Medical Society County of Orange

LONG, C. Parker; Green Valley AZ.  Died October 06, 2020, age 96.  Medical Society County of Ontario Inc.

MCVEIGH, Robert C.; Pittsford NY.  Died June 02, 2021, age 90.  Monroe County Medical Society

MELTZER, Jay Ivan; New York NY.  Died July 03, 2021, age 92.  New York County Medical Society Inc.

MILCH, Robert Alan; Buffalo NY.  Died June 04, 2021, age 78.  Erie County Medical Society

NAPLES, R. Joseph; Pittsford NY.  Died April 15, 2021, age 97.  Monroe County Medical Society

NOONAN, James M.; Ballston Spa NY.  Died November 19, 2019, age 68.  Saratoga County Medical Society Inc.

OLIVER, Herman; Great Neck NY.  Died April 14, 2021, age 91.  Nassau County Medical Society Inc.

PERRONE, Francis S.; New York NY.  Died August 14, 2021, age 94.  New York County Medical Society Inc.

PULVINO, A. Thomas; Newark NY.  Died April 15, 2021, age 85.  Wayne County Medical Society

QUINTERO-CHICA, Jairo J.; Hyde Park NY.  Died August 03, 2021, age 90.  Dutchess County Medical Society

RUDOLPH, Lionel A.; Fayetteville NY.  Died August 06, 2021, age 98.  Onondaga County Medical Society Inc.

SCHAEFER, Norman Edward; Chatham NJ.  Died November 20, 2020, age 96.  Richmond County Medical Society Inc.

SCHECHTER, David Charles; New York NY.  Died June 20, 2021, age 90.  New York County Medical Society Inc.

SHRAGOWITZ, Jacob; Monsey NY.  Died April 13, 2020, age 97.  Medical Society County of Westchester

SZE, Kenneth Chiache; New York NY.  Died July 22, 2021, age 103.  New York County Medical Society Inc.

TREVISANI, Gino Angelo; Waterville NY.  Died July 28, 2021, age 89.  Medical Society County of Oneida Inc.

WOOLF, George; Middletown NY.  Died March 29, 2020, age 95.  Medical Society County of Orange

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