This feature of MM “NEWS” introduces you to Society leaders as they explain their vision of organized medicine’s activities. This month, read Society President Scot B. Glasberg’s presidential address at the Society’s June 20, 2018 Annual Meeting.
Colleagues, distinguished guests, friends, it has been an honor and privilege to serve as your president during this past year. When I stood here last year in front of you, I vowed to make this past year the year of the member. I would say that it has hopefully lived up to its billing.
This last year has been one of both necessary provocation and also doing what has been in our members’ best interests. Whether it was endorsing a new liability carrier that offered more and better benefits for their interests or being vocal when they were being unfairly charged dues that others are not equally paying, I am proud of our Board for standing up to do the right thing and doing so usually in a unanimous fashion. These decisions are often not easy but as long as the members are at the core of this process and our decision making, then we are doing what is just and right. Our goal as leaders of this society should always be to nurture our value to our members and look out for their best interests.
On the endorsed partner side, we have cultivated many new relationships for the benefit of members; just look around the room. Our symposia continue to be well attended and well-reviewed. Because of the efforts of your board and trustees, the Society remains financially sound.
On an advocacy front, we must be mindful of how the physician community is now seen in Albany. We cannot continue to be the culture of simply opposition and “no.” We learned that the hard way with the passage just one year ago today of Lavern’s law. We must be willing to step up, communicate, and be willing to negotiate on our members’ behalf. We must be willing to understand all facets of the political game and hold firm when necessary, but engage when not.
In the next year, we will, in all likelihood, see an Assembly and Senate that will be controlled by Democrats. In addition, we could very well see the passage of the Health Act, an attempt to turn healthcare services in New York State into a single payor system. Quite simply put, this would be Medicaid for all, including on the reimbursement side. The most recent estimate was the need for an additional $225 billion to fund such a system. The plan is to add payroll and non–payroll taxes on interest, capitol gains, and investments to fund it. Vermont tried and failed, Colorado tried and failed, and even California realized the pitfalls of such a system. We must step up, engage and convince our legislators of just how bad a program like this would be for all involved. Let’s not mix up the noble attempts of universal healthcare with a single payor system.
My hope is that we can refocus and find one or two poignant advocacy issues to be proactive on so as to show nonmembers as well why we are so critically important as a Society to the well being of all physicians in the state and the county. Collective negotiations is just one such issue. As long as we remain focused and clear and engaged, then we can succeed on this front. But our members are clamoring for wins, not just the outing out of fires.
As a Board this past year, I committed to discussing one important issue at each meeting and attempting to come up with a societal position regarding these “hot topics.” With that in mind, we had meaningful and spirited discussions on topics such as the current opioid crisis, maintenance of certification, membership, and single payor, just to name a few. By keeping our leadership engaged on these issues, the hope is that this fervor will be conveyed to those who question the need for our Society.
On a personal note, I hope that our leadership has developed a special bond during this time together. I have greatly appreciated the continued support from all of our leadership and feel that I have cultivated friendships that will last forever. During this past year, I also dealt with some personal issues such as the death of my father. During the first night of the Shiva my wife commented that we could have had a quorum for a New York County Board meeting because so many of you showed up to comfort my family and for that I am eternally grateful.
I conclude by stating that throughout my tenure in this Society I have been committed to doing the right thing and hope that I have lived up to that effort. Rest assured I am not going away but simply moving on to the Trustees. I know that I leave the Society in the excellent hands of Doctor Naheed Van De Walle who will continue our path upward and onward. I would be remiss to not thank our wonderful staff led by Cheryl Malone. Our staff is the finest and most committed of any Society; without them we could not possibly accomplish everything that we do on a daily basis.
Once again, I thank each and everyone of you for your support and caring. All the best to everyone.
At the Society’s Annual Meeting on June 20, 2018, we welcomed new President Naheed Van de Walle, MD. Doctor Van de Walle is a graduate of the Fatima Jinnah Medical College, Lahore, Pakistan. She is board certified in Physical Medicine and Rehabilitation and is a Past President of the New York State Society of Physical Medicine and Rehabilitation. Doctor Van de Walle is an Attending Physician in the Rehabilitation Department at New York University’s Langone Ambulatory Care Center, Rusk Rehabilitation. She recently was invited to the United Nations to speak about global pain initiatives. Below are her remarks upon inauguration.
(Picture attached is Doctor Van de Walle with outgoing President Doctor Scot. B. Glasberg. Photo Credit: Mervyn Bamby)
Good evening colleagues, friends and distinguished guests.
I would like to begin by thanking all of you for being here tonight. I am most humbled and honored to be nominated as the 179th president of NYCMS. I feel confident that with the help and support of all the Board members and dedicated staff at New York County Medical Society, we will be able to take on all of the challenges that we as physicians face today.
I’d like to take this opportunity to thank and congratulate the immediate past President Doctor Scot B. Glasberg and the Board for all the hard work and achievements over the past year. Scot has been extremely supportive of me, and as his successor I will continue to reach out to him for advice and guidance.’
Special thanks to Ms. Cheryl Malone, Executive Director, Ms. Susan Tucker, Ms. Lisa Joseph who have all put in years of tireless behind–the–scenes effort to engineer successful events such as this one and many many others. Thank you for all the dedication and passion that goes into all that you do.
I would like to also thank my family. First my parents who passed away several years ago, but instilled in me the work ethic, commitment, and perseverence that help me face the challenges that come my way. Special thanks to my daughter, Julia Van de Walle, who is here today.
I would like to thank my dear friend Mrs. Shahla Sadiq who is here all the way from San Francisco to attend this event. Thank you, Shahla, for many years of friendship and support.
Last but not least I thank my dear husband Charles Van de Walle and my younger daughter Sara Van de Walle, both of whom could not be here today but are with me in spirit.
I’m most grateful for the trust and confidence you have all placed in me to take over this very important responsibility of leading New York County Medical Society, and as your next president.
I have full confidence that with the support of the Board members, officers, and the staff of the Society we will continue to build upon the enormous work that my predecessor Dr. Glasberg led with such strength and vision. I look forward to the coming year with great excitement and anticipation. Yet, I’m fully aware of the monumental challenges ahead.
Since I graduated as a young physician in 1971, there has been a sea — or better still, a tsunami of changes in the world of healthcare and medicine. The world as I knew it then was very simple. My job as a physician was clear — I was to do my utmost to save lives and help those who seek care to the best of my ability — many times with minimal resources. In fact, we didn’t even have computers at the time. All we had were our skills, empathy, and the ability to connect with our patients to form a good trusting patient–doctor relationship.
We didn’t know what HMOs, RVUs, or meaningful use were. We could not comprehend that medicine would be practiced using remote technology and with the help of robots. We didn’t have to fill out endless repetitive and poorly–constructed insurance forms, and we did not have to navigate through the maze of EMR. We simply practiced medicine.
That was then, but it’s a different world today. We not only have to fight to remain relevant, we have to tackle many of the significant challenges head on. We need to make changes that positively impact the physician community as well as the patients we serve.
The New York County Medical Society, since its inception in 1806, has tried to make the lives of its membership and the patients we serve better. Although it is no longer mandatory for a physician practicing in New York County to become a member of Society as it was in bygone days, it is increasingly necessary to do so voluntarily if we as physicians wish to have our voice is heard.
I will briefly cite a few of the many challenges we face as a group:
#1. Physician burnout, an issue we’re all quite familiar with. An issue that is all too real, as was so eloquently addressed in an article based on the good work that MSSNY’s Stress and Burnout Task Force did. As stated in the article, physician burnout is a very significant public health issue which impacts not only the physician as an individual, but also the patients that they care for. We need to take a very serious look this problem and find ways to mitigate it. Not an easy task.
#2. We are faced with recurring legislation on a daily basis that impinges on our scope of practice. We must continue to persevere and resist any infringement on the skills that we worked so hard to learn in order to provide the highest level of care to our patients.
#3. Healthcare disparity. It is not just a health care problem, it is a societal problem. We as physicians are obligated to serve all segments of the society equally and not deny access to health care based on sex, race, religion, ethnicity, socioeconomic status, or age.
Let me end by quoting from the mission statement of the New York County Medical Society which is “to proactively identify and respond to the evolving needs of its members, to strive for the achievement of the highest standards of medical practice and quality of care by providing extended medical education and supporting advances in medical science, to champion the integrity of the patient physician relationship, to improve health through education initiatives and targeted community service efforts and to serve as a strong advocate for both members and patients while working aggressively for enhancement of supportive and enabling medical legislation.”
Thank you for your time and I look forward to working with each and every one of you over the coming year.
At its Annual Meeting on June 20, 2018, New York County Medical Society President Scot B. Glasberg, MD, presented Paul N. Orloff, MD with the 2018 Nicholas Romayne, MD Lifetime Achievement Award. It was said of Doctor Nicholas Romayne, the Society’s first president, that “He was unwearied in toil and of mighty energy, dexterous in legislative bodies, and at one period of his career was vested with almost all the honors the medical profession can bestow.” The Society chooses Romayne Award recipients accordingly.
Doctor Orloff is a graduate of the Columbia University College of Physicians and Surgeons, and a board certified ophthalmologist. He is affiliated with Manhattan Eye, Ear and Throat Hospital and Lenox Hill Hospital and has a private practice. Doctor Orloff is Clinical Associate Professor in Ophthalmology at the New York University School of Medicine and a fellow of the American Academy of Ophthalmology. He is President of the Manhattan Eye, Ear & Throat Hospital Foundation and past president of the New York State Ophthalmological Society.
Doctor Orloff has served the Society in more capacities than one can enumerate. He is currently chair of the Board of Trustees, past president of the Society, long–time officer, and Delegate to the Medical Society of the State of New York.. He is the Vice President of the First District Branch of the Medical Society of the State of New York.
He models physician activism for young doctors, and reminds us that in spite of many changes in the health care environment, medicine remains not a job, but a “calling.”
(Picture attached is Doctor Paul Orloff receiving the award from Doctor Scot B. Glasberg. Photo Credit: Mervyn Bamby)
Naheed Van de Walle, MD, became president of the Society at its meeting on June 20, 2018. The following were also elected;
Mimi Buchness, MD, President–Elect
Arthur Cooper, MD, Vice President
Jessica J. Krant, MD, MPH, Secretary
Thomas Sterry, MD, Assistant Secretary
Jill R. Baron, MD, Treasurer
Keith La Scalea, MD, Assistant Treasurer
Michael Borecky, MD
Henry Magliato, MD
Patricia McLaughlin, MD
Scot B. Glasberg, MD, Trustee
Board Members At Large
Stuart Gitlow, MD
Loren Wissner Greene, MD
Keyvan Jahanbakhsh, MD
Lana Kang, MD
Mark Milstein, MD
Linda Nicoll, MD
Bijan Safai, MD
Ami Shah, MD
Gabrielle Shapiro, MD
Delegates to the Medical Society of the State of New York (MSSNY)
Erick Eiting, MD
Scot B. Glasberg, MD
Michael Goldstein, MD
Peter Lombardo, MD
Edward Powers, III, MD
Gabrielle Shapiro, MD
Zebulon Taintor, MD
Alternate Delegates to MSSNY
Jill Baron, MD
Michael Borecky, MD
Clarita Herrera, MD
Keyvan Jahanbakhsh, MD
Lana Kang, MD
Jessica J. Krant, MD, MPH
Henry Magliato, MD
Mark Milstein, MD
Linda Nicoll, MD
Eugene E. Weise, MD
At the same meeting, it was announced that the Bylaws Amendments that were sent to the membership for vote were approved.
James McNally, the Society’s Third–Party Insurance Help Program, reports that the Centers for Medicare and Medicaid Services (CMS) has issued a Proposed Rule impacting the 2019 Physician Fee Schedule as well as the 2019 Quality Payment Program.
Please note that this is a Proposed Rule subject to a Comment Period . The following are some of the key changes.
For guidance on this issue, contact us through the Third–Party Insurance Help Program, at (212) 684–4681.
Physician Fee Schedule Highlights
- A simplified documentation process for E/M services, with a single level for physician–provided office visits. This will provide physicians with more choices for how to document these visits, adding medical decision–making or time as additional ways to demonstrate their full scope, although we don’t know all the details on the documentation requirements. The payment would be between a level 3 and 4 code: $135 for a new patient and $93 for an established patient. Currently, a level 4 new–patient E/M pays on average $167. The same level for an established patient is $109.
- No payment adjustments for 2019 global surgical codes based on the first findings for CMS’ ongoing, targeted survey of global surgical payments.
- The first tangible recommendation for addressing drug costs, in which Medicare would reduce payments to physicians for new drugs to Wholesale Acquisition Cost–plus 3 percent, consistent with the Trump administration’s drug–price initiatives, unveiled earlier this year.
Pay Rates Analysis
The 2019 conversion factor is proposed as CF is 36.0463. This is a slight up tick from last year’s 35.990. The rate takes into account the following factors:
- Statutory Update Factor of 0.25 percent (1.0025); and
- CY 2019 RVU Budget Neutrality Adjustment of –0.12 percent (0.9988).
Global Surgical Payments Survey
CMS provided a first look at data received via its mandated reporting of CPT code 99024 for 10– and 90–day global procedure codes in nine states for groups of 10 or more physicians. Congress mandated that CMS collect this data to determine whether patients were receiving all the services built into global payments.
Based on this first, high–level analysis, CMS says it will do additional surveying and analysis including more targeted surveys of individual physicians and procedures. However, the agency says it is not making any recommendations to change payment for global surgical procedures for 2019. It may still expand the list of procedures in future years and look at non–face–to–face services that are also frequently associated with post–operative care.
New E/m Payment Guidelines
CMS is proposing the creation of a single payment rate under the physician fee schedule for services billed using the current CPT codes for level 2–through–5 E/M visits. They expect that, for record keeping purposes or to meet requirements of other payers, many practitioners will continue to choose and report the level of E/M visit they believe to be appropriate under the CPT coding structure. CMS also proposes to apply a minimum documentation standard the purposes of fee schedule payment for an office/outpatient E/M visit. Under this proposal, practitioners would only need to meet documentation requirements currently associated with a level 2 visit. This comprises of history, exam and/or MDM (except when using time to document the service).
The agency is also proposing to allow practitioners the option to use time as the single factor in selecting visit level and documenting the E/M visit. It will solicit public comment on what that total time should be for the new single payment rate for E/M visits levels 2 through 5. The typical time for this proposed new payment for E/M visit levels 2 through 5 would be 31 minutes for an established patient. The new–patient time would be set at 38 minutes.
With the Trump administration focusing on policies to reduce drug costs, medicine has been watching for information on new demonstrations or Part B drugs reclassified to Part D. Neither is in the draft rule. What is included, though, is a proposal in which Medicare would reduce payments to physicians for new drugs to Wholesale Acquisition Cost–plus three percent, consistent with the Trump administration’s drug–price initiatives, unveiled earlier this year.
The cut would only be felt for the first three months a drug is on the market. At that point, when there is average sales price data, Part B drugs would be paid for according to the average sales price plus six percent.
Quality Payment Program Highlights
The number of MIPS participants in the program’s first year exceeded the agency’s expectations, with 91 percent of eligible clinicians taking part. The agency seems to be countering claims that physicians aren’t buying into the MIPS program.
CMS is proposing the inclusion of cost episode groups in 2019. While we helped develop a cataract cost–episode group, we remain cautious with any cost–measurement tool that CMS proposes. CMS seems serious about expanding the MIPS eligibility pool to incorporate more clinician types, i.e., audiologists and speech pathologists. This might improve the bonus pool as these practitioners are less likely to have the measure expertise to be high performers.
The agency is lamenting a lack of data to guide its policies moving forward. This is something to watch as other organizations (i.e. MedPAC) continue to make recommendations to CMS about what it should do with the Quality Payment Program, MIPS, and alternative payment models.
Expanding the MIPS Pool
The agency seems to value a larger pool of MIPS participants after a year in which thresholds for exemptions were very high, at least by Congress’ standards. Its proposal to add more practitioners to what it defines as eligible clinicians would certainly accomplish that. In addition to physicians and other current participants, the agency would add qualified speech–language pathologists, qualified audiologists, certified nurse–midwives and registered dietitians or nutrition professionals to the MIPS pool.
It is also adding a third tier to its low–volume threshold, though it is not making changes to the existing thresholds.
Changes to Promoting Interoperability Scoring
In a huge change, CMS is proposing making scoring for the EHR–use section objective–based. Each objective would be all or nothing.
Changed Scoring Threshold
CMS proposes a 30–point scoring threshold for 2019. In future years, with this progress to a higher mean and median. The exceptional–performance threshold is increased to 80 points, from 70.
For the 2021 payment year, the MIPS cost category is proposed to make up 15 percent of participants’ scores. This would be up from 10 percent. To re–balance the categories, quality would decrease to 45 percent.
The health information exchange measures now require clinical information, including reconciliation or incorporation of received information into a medical record.
Some Topped–Out Measures Removed
CMS is proposing that once a measure has reached an extremely topped out status (for example, a measure with an average mean performance within the 98th to 100th percentile range), the measure would be flagged for removal in the next rule–making cycle. This is regardless of whether or not it is in the midst of the topped–out measure life cycle.
The following is courtesy of James McNally, the Society’s Third–Party Insurance Help Program. If you have questions, call the Society at (212) 684–4681.
• Positive Clarification Received on 2018 MIPS Quality Measure Reporting to Avoid 2020 Penalty & 2018 Quality Measures are Finally Posted to QPP Site: Communications from various government sources have uncovered a series of discrepancies in information being disseminated regarding how to avoid a MIPS Penalty in 2020 when submitting the 2018 Quality Measure codes. This is causing major confusion as to what must be submitted in 2018 to avoid the 2020 penalty. Contacts were made with the Quality Payment Program (QPP) staff and the Centers for Medicare and Medicaid Services (CMS) in an effort to confirm the official position of CMS on this topic. As a result, the following is what will be required when submitting the 2018 Quality Measure codes. The pertinent and positive items are noted below in bolded text and apply only to avoiding the 2020 penalty.
Using the MIPS quality category to avoid a 2020 penalty
Small practices (practices of 1 – 15 clinicians):
Report on at least six (6) quality measures, one of which must be an outcome measure.
Report each quality measure:
— On at least one patient; and
— At least one point in time during the performance period. (In other words, report on at least one qualifying patient per measure.)
Practices of >15 clinicians:
Report each quality measure:
— For the full calendar year*; and
— On at least 60 percent of denominator–eligible patients.
*Please note with reference to the full calendar year requirement, CMS stated in 2017 that full–year reporting was going to be required in 2018 for Quality Measure code submissions.
However, CMS did not post the specific information physicians would have needed to meet the full–year requirement in a timely manner, so it is not clear that they would have been able to comply. More importantly, the AMA and other physician organizations are presently lobbying to have the reporting period reduced from the full calendar year to reporting Quality Measures in any 90–day period during 2018. We will keep you apprised of developments as they occur.
That being said, CMS has finally updated their special website for the QPP Quality Measures and the 2018 data has been posted.
To identify what measures you may want to use, go to the site here and click on MIPS>Merit Based Incentive Payment Program in the menu bar on the top.
Then, click on Quality Measure Requirements in the Drop–Down menu and then scroll down to Explore Measures.
Physicians can also review the Quality Measures by specialty by using the Specialty Measures Set.
• Reminder of Deductible and Copayment Information for Qualified Medicare Beneficiary (QMB) Program: The QMB program prohibits all Medicare providers from billing QMB individuals for all Medicare deductibles, coinsurance, or copayments. Therefore, deductible, coinsurance, or copayment information is not available through NGSConnex or the IVR system for beneficiaries enrolled in the QMB program. This information is also not available through the Customer Care Representatives in the Provider Contact Center.
Medicare beneficiaries enrolled in the QMB program have no legal obligation to pay Medicare Part A or Part B deductibles, coinsurance or copays for any Medicare–covered items and services. Providers who inappropriately bill individuals enrolled in QMB are subject to sanctions.
• Claim Submission App Is Coming To United Healthcare Link: Claim submission is moving to Link. The Claim Submission app will allow you to submit professional claims for UnitedHealthcare Commercial, UnitedHealthcare Medicare Advantage, UnitedHealthcare Community Plan and UnitedHealthcare Oxford. Future enhancements will include real time adjudication and attachment capability. To read more, click on the link here.
• Emblem Health Downcoding — Your Help is Needed: Reports from the membership have indicated that Emblem Health (and their subsidiaries GHI and HIP) have been down–coding submissions of exam visit codes, that is unilaterally changing the submission of a visit code to a lesser level. They cite that the diagnosis does not support the code/level of service submitted. The facts are that the AMA and CMS policy for E/M or eye exam codes does not use diagnoses as a trigger for the choice of a code level. Emblem Health, for all intents and purposes, has no way of knowing whether these services have been substantiated in the medical record. Yet, they have chosen to arbitrarily and capriciously reduce claim submission(s) on initial claim submission.
Because of this policy, Emblem Health (1) forces the physicians to appeal these claims through an unnecessary second level (2) thereby delaying proper payment and (3) requiring an otherwise “clean claim” to be developed for additional information. This issue was addressed to the New York State Department of Financial Services (NYSDFS) and is under review by their office.
With that in mind, if your practice has experienced any incidents of down–coding, please contact us through the Third–Party Insurance Help Program as we need additional examples of these arbitrary decisions to bolster a challenge to this practice.
• United Healthcare Releases June 2018 Network Bulletin: United Healthcare has released their June 2018 Network Bulletin and it is available at the link below. Physicians are urged to review this monthly notification to see if any of these policy changes or news impacts your practice directly. To read more, click on the link here.
If you have questions on any of these issues, contact the Society’s Third–Party Insurance Help Program at (212) 684–4681.
The following is from the New York State Workers’ Compensation Board on the change to CMS–1500.
The New York State Workers’ Compensation Board will replace the current Board treatment forms: Doctor's Initial Report (Form C–4), Doctor’s Progress Report (Form C–4.2), Occupational/Physical Therapist's Report (Form OT/PT–4), Psychologist’s Report (Form PS–4), and Ancillary Medical Report (Form C–AMR) with the CMS–1500 to help reduce paperwork and lower provider administrative burdens. This initiative will leverage providers’ current medical billing software and medical records while promoting a more efficient workers’ compensation system. It is expected that the initiative will roll out in three phases, as follows:
Phase 1: Commencing January 1, 2019
Providers may voluntarily transmit CMS–1500 medical bills (and required medical narratives, and/or attachments as applicable) through an approved XML Submission Partner (“clearinghouse”) to workers’ compensation insurers/payers. Guidance on required medical narratives and attachments is available on the Board’s website. As previously conveyed in Subject Number 046–785, if a CMS–1500 is submitted without the detailed narrative report or office note, it is not a valid bill submission. A listing of approved clearinghouses for the CMS–1500 will be posted on the XML Forms Submission section of the Board’s website after each entity successfully completes testing and executes an XML Submission Partner agreement with the Board.
Workers’ compensation insurers/payers will accept CMS–1500 medical billing files from clearinghouses and electronically return acknowledgments of receipt of CMS–1500 files. Such acknowledgment (including receipt date) will be forwarded from the clearinghouses back to providers and the Board.
The Board will receive CMS–1500 files, narrative attachments and acknowledgment of receipt from clearinghouses in a designated XML format. The CMS–1500 forms and narrative attachments will be combined and displayed in the applicable claimants WCB case folders.
Phase 2: On or About July 1, 2019
Workers’ compensation insurers/payers will electronically transmit Explanations of Benefits (EOB) to their clearinghouses upon adjudication of the associated electronic CMS–1500 medical bills. Such EOB data will be forwarded from the clearinghouses back to providers and the Board. The Board will receive EOB data from clearinghouses in a designated XML format.
The Board plans to eliminate the requirement for the insurer/payer to file Form C–8.1B or C–8.4 form (to object to full or partial payment of a medical bill) when an EOB for the medical bill was transmitted through the clearinghouse and the Provider may file Health Provider’s Request for Decision on Unpaid Medical Billing (Form HP-1) (based on receipt of EOB).
Phase 3: On or About January 1, 2020
Providers will be required to submit electronic CMS–1500 medical bills (and required medical narratives, as applicable) through their clearinghouses to workers’ compensation insurers/payers and to receive EOBs back through their clearinghouse.
Providers will be required to electronically transmit any disputes for unpaid medical bills to their clearinghouse using the Board–prescribed form. The clearinghouses will electronically transmit medical disputes to the Board in a designated XML format. The Board will eliminate Forms C–4, EC–4, C–4.2, EC–4.2, C–4.1, PS–4, C–4AMR, EC–4AMR, OT/PT–4, EOT/PT4 and EC–4NARR forms. Web submission and XML submission of these forms will no longer be available.
The Board will establish a hardship exception process for providers who are unable to meet the mandatory electronic reporting requirements.
Visit the CMS–1500 Initiative section of the website to access technical specifications for the CMS-1500 medical billing and associated acknowledgment data and to find periodic updates.
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The following article is by Richard Cahill, JD, vice president and associate general counsel, The Doctors Company. The Doctors Company is the New York County Medical Society’s Endorse Medical Liability Insurance Company.
Violence has become increasingly more common in the workplace over the past decade, especially in the healthcare setting. Victims may be professional staff, employees, patients, or third–party vendors. Not uncommonly, assailants may include other patients, family members, visitors, or even homeless persons inhabiting the area. The Joint Commission reported in a Sentinel Event Alert in 2010 that healthcare facilities are no longer considered “safe havens” and are experiencing an alarming growth of crime such as murder, rape, and assault.
In fact, just over the last year there have been several instances of such violence in New York alone. Most notably, in July 2017, Bronx-Lebanon Hospital Center was targeted by a disgruntled former employee who entered the facility and opened fire with an assault rifle, ultimately killing a doctor and wounding six other people before taking his own life.
Even after this event, which led to calls for workplace safety reform and other protections, another incident occurred in October 2017 involving a New York emergency room nurse who had been repeatedly threatened with rape by a patient she was treating. Upon leaving the hospital after a shift one day, she found this patient waiting for her outside, after which he began to disrobe and chase her.
Attacks like these are unfortunately not uncommon for healthcare workers in New York, and often result in an arrest and criminal prosecution. Victims may separately pursue civil monetary damages for injuries sustained directly against the assailant. Often the criminals are indigent and without financial resources to pay judgments imposed by the judicial system. The innocent bystander in those situations historically received no compensation. Employees injured in connection with their job responsibilities may seek redress through the state’s workers’ compensation system. Such recoveries tend to be limited and often do not fully recompense an individual for the damages incurred.
Hospitals traditionally were owned and operated by governmental entities or religious organizations and were thereby protected from civil liability by long-recognized principles of sovereign and charitable immunities. Antiquated common laws rules governing the duties of landowners to persons injured on the premises made recovery by such persons even more difficult to establish.
Over the last 50 years, federal and state governments have eliminated the shield of sovereign immunity. Hospitals are increasingly operated as business enterprises and now purchase a variety of insurance coverages to protect against risk. Charitable immunity is generally no longer necessary as a matter of public policy. The common law has gradually evolved to recognize that persons injured on the property of another, including hospitals and other healthcare facilities, may seek redress for injuries sustained on the premises, regardless of the perpetrator, even by an individual engaged in criminal activity.
In some cases, hospitals where third–party violence has occurred have faced regulatory bodies seeking to hold the hospitals accountable for injured employees. This was seen in 2014, when the Occupational Safety and Health Administration (OSHA) fined Brookdale University Hospital and Medical Center in New York after several instances of violence to hospital employees were perpetrated by patients and visitors.
However, state laws vary significantly as to the theories of liability that are recognized to permit a person to recover monetary damages for harm sustained while on a hospital campus. Some jurisdictions have adopted a type of claim based upon principles of premises liability. Others allow litigants to allege, depending upon the circumstances presented, that the conduct of the healthcare provider was a form of professional negligence. And still other states have adopted the view that an injured plaintiff may assert a theory of general negligence, in which the litigant need only establish (1) that the facility owed the individual a duty of due care, (2) that there was a breach of that duty, often expressed as a failure to exercise reasonable care, (3) that there is a causal relationship between the negligence and the injury and (4) that the plaintiff suffered legally compensable damages.
Clearly, an individual harmed by the violence of another while visiting a hospital, generally regardless of the purpose for which he or she is on the premises, must establish preliminarily that the entity being sued owned the facility when the alleged incident occurred and that the injured person was owed a duty of due care. An attorney representing an injured person must then attempt to develop those facts that support the alleged theory or theories of liability as recognized by the statutory and case law of the jurisdiction.
Depending upon the applicable state, questions of foreseeability of the injury and reasonableness of the defendant in operating the hospital are factors to be considered. For example, is the medical center located in an inner–city area with a high crime rate? Have there been other attacks, by whom and when? Did the facility have protocols in place to train security personnel as well as professional staff on what clues might indicate that a problem is imminent as well as policies on what to do given the presentation of a particular scenario? And how do those policies and procedures compare with guidelines adopted by other similarly situated facilities in comparable locales?
Not infrequently, medical centers contract with private security companies to provide surveillance and other security services on the premises. Ordinarily, the contracts state that the company is an independent contractor and will provide adequate staffing, training, and liability insurance in the event of an adverse event. The contracts may even contain an indemnity provision in which the security company agrees to assume the cost of the defense and pay any monetary damages incurred by the facility in the event of a loss due to the negligence of the service provider.
None the less, states are with greater frequency adopting the concept of ostensible agency, in which even an independent contractor can be found to be the agent of the hospital, thereby resulting in vicarious liability for the facility. Medical centers often successfully avoid such claims, and ultimately findings by a jury in subsequent litigation, by posting in common areas such as lobbies and emergency departments that “Emergency department providers, imaging, and laboratory staff and security personnel are independent contractors and are not employees of the facility.” Adopting similar language in Conditions of Admissions is also recommended and may provide added protection in the event of a lawsuit.
When considering insurance coverage, it is also recommended that administrators require that policies of professional and general liability are broad enough to include such claims and also contain an endorsement for vicarious liability.
To learn more about developing policies to address violent patients, download the free guide Managing Challenging Patient Relationships.
PS2 Practice Management is the endorsed vendor of the New York County Medical Society for medical billing services.
Medical billing can be a challenge for private practitioners. Some of the challenges faced by physicians in private practice include spending lengthy amounts of time on the phone with insurance companies trying to obtain a prior authorization to fighting denials and writing appeals for the same claim over and over. PS2 Practice Management can step in and alleviate this burden on physicians and their practice staff.
How do we do this? PS2 will initiate and manage the prior authorization process for the practice. The PS2 team will contact the insurance company and initiate the prior authorization request. Once the authorization is received, PS2 will communicate this information back to the practice. This saves the physician and staff from having to spend what can often amount to hours on the phone with the insurance companies.
The billing process begins when the practice provides the information to be billed out. The PS2 billing team will enter these charges into the billing system and send the claims out electronically. Should the insurance company require additional information, the PS2 team will reach out to the practice.
Denial management is also handled by the PS2 team. For a private practice, often the practice staff does not have the time to dedicate to denial management which can result in loss of revenue for the practice. Having a dedicated team focus on denial management ensures they are handled in a timely manner and get the attention and focus necessary. PS2 will monitor and report monthly on key metrics that are important to your practice; including days in A/R and collection rates.
PS2 also offers additional specialized services such as coding, contracting and credentialing.
One of the unique services offered to you as a Society member is access to the Society's parking renewal program. The Parking Ticket Review Panel review members̓ New York City parking tickets to recommend dismissal to the New York City Parking Violations Bureau. Last year, as a result of Society intervention, members saved in parking fines.
In order to take advantage of this valuable membership benefit, you must renew your "Doctor On Medical Call" card. Display the card in the windshield of your car with MD plates in order to be eligible for parking ticket dismissal. The card is renewed at a reasonable price of $25.00 for a one-year period ( The old card expires June 30, 2018; the new card is valid until July 1, 2018 – June 30, 2019). Some restrictions do apply; you will receive with your new card a sheet describing these as well as the procedure to follow to request that a parking ticket be dismissed (please read them carefully).
To order your "Doctor on Medical Call" card, send your check for $25.00, made payable to the New York County Medical Society, and this form to: Parking Renewal Program, New York County Medical Society, 261 West 35 Street, Suite 504, New York, New York 10001.
If you have questions, call (212) 684-4698.
Click Here to download form
The following educational piece is from Vital Planning, the Society’s endorsed vendor for financial planning.
- Strong economies need crude oil to feed their growth. But disruptions in Africa (Libya)and North America (Canada) are raising concerns about the world supply of oil: will the top producers of crude (Saudi Arabia, Russia, and the United States) be able to increase their output to make up the difference? The fear is that a reduced supply of oil could lead to higher prices which can reduce global consumption. The three largest oil consumers worldwide are the USA, China, and India (source: International Energy Agency).
- US tariffs that have been in place for six weeks have not dented investor enthusiasm for domestic stocks at this time. The S&P 500 finished last week at 2801, its highest close since 2/01/18, and the tech–dominated NASDAQ Composite closed at 7826, its highest closing value ever. Stock buyers may believe a self–inflicted trade war is a battle that the United States can win, tilting the corporate playing field in favor of American exporters. The reality is that our nearly 9 ½-year–old bull market will change direction at some point, but it didn’t happen last week (source: BTN Research).
- Anthony Kennedy, the longest serving current Supreme Court justice, is retiring at the end of this month. Kennedy’s 30 ½ years on the nation’s top judicial court ranks him as the 14th longest serving justice in history. Four of the nine current justices have served at least 23 years. Supreme Court justices have “life tenure” (source: Supreme Court).
Notable Numbers for the Week
1. DOLLARS IN, DOLLARS OUT — After nine months of fiscal year 2018 (i.e., the nince months ending 6/30/18), the USA has collected $1.00 of tax receipts for every $1.24 of outlays, creating a deficit to date of $607 billion (source: Treasury Department).
2. CAPITALIST WITH A CONSCIENCE — Six out of seven Millennials (86%) would “consider” taking a cut in pay in order to work for a company that follows “a mission and values” that aligned with their own. Millennials were born between 1981 – 97 and are age 21 – 37in 2018 (source: Linked In Workplace Culture Trends).
3. REPETITIVE PROCESS — 40% of the robots used in the United States today are in the auto industry (source: Department of Transportation).
4. HEAD SOUTH FOR WORK — The government divides the USA into four geographical areas: Northeast, South, Midwest and West. As of May 2018, the Northeast states had 1.075 million job openings while the states in the South had 2.432 million job openings. The total number of job openings nationwide: 6.638 million (source: Department of Labor).
Congratulations to Society Board Member Gabrielle Shapiro, MD, who is the new chair of the APA Council on Children, Adolescents, and Their Families. Doctor Shapiro is a graduate of New York Medical College and board certified in psychiatry. She practices at Mt. Sinai, and is a leader with her local and national specialty societies, in addition to the New York County Medical Society.
The following 20 candidates for membership have been presented to the Board of Directors of the Society.
Emil Achmad, MD
Michael P. Ast, MD
Benjamin Jan B. Bonte, MD
Alberto Carli, MD
Sara M. Chun, MD
Marc D. Dyrska, MD
David Fealey, MD
Daniel J. Galante, MD
Michael Ghalchi, MD
Arjun Gupta, MD
David Gutierrez, MD
David Kovacevic, MD
Bashar M. Mourad, DO
Diana Vera Punko, MD
Emily Schneider, MD
Jakub Tatka, MD
Wakenda K. Tyler, MD
Abraham Vatakencherry, MD
Graeme P. Whyte, MD
Christopher L. Wu, MD
The following is provided by Society Counsel Scott Einiger, Esq., explaining the newest Society benefit, MAPS (Medical Audit Protective Shield).
As counsel to hundreds of private health care clients I have personally seen the value of proactive planning versus reactive representation. As counsel to New York County Medical Society, oftentimes I am right on the front line of cutting edge issues of concern that impact Society physician membership.
It has been my privilege throughout the years to serve clients who are focused on the health and wellness of our community. I have offered educational outreach on topics of interest through articles and seminars such as insurance carrier audit and refund demands, business planning, asset protection and OPMC investigations.
During the course of my representations clients are thrust into matters that have devolved and are dealing with veritable fires in the house that need prompt attention lest the practice be forever destroyed. Those situations are unpredictable and typically not planned for. They may include business separation/ dissolution or costly investigations by governmental agencies or carrier investigations into fraud and or alleged billing abuse. A smaller percentage of clients however anticipate such practice risk and work proactively with representatives to protect their practice asset, to work strategically to grow their assets.
After thirty years in legal practice I have seen how working closely with New York County Medical Society on matters that have had far ranging impact on healthcare professionals can be beneficial. From successfully taking on the largest insurance carriers in the country (including Oxford, United, Aetna and Cigna) to matters involving the high–profile investigations undertaken by the Department of Health and related state agencies, I decided to offer a new member benefit that could provide substantial value to the health care community in advance so members interested can receive ongoing access to expertise to offer real value.
MAPS (Medical Audit Protective Shield) was developed to proactively work with clients before danger appears on the horizon in a prepaid legal program that offers a resource that will provide ongoing value at a discount.
Whether you are an established physician facing an audit or a new physician seeking employment contracting expertise, MAPS is available to provide a resource that can provide a real difference.
Call Society Counsel Scott Einiger at (516) 477–7909 for more details or receive a summary about MAPS, the newest Society benefit.
We received the following note from member Doctor CS. Doctor CS had a number of concerns regarding medical record storage, back up, availability of records for audits and other legal reasons. Here are some excerpts from her kind letter to Susan Tucker, Director, Government Affairs and Socio–Medical Economics at the Society. Doctor CS was able to use several Society benefits including advice from James McNally and Storage Quarters.
At your recommendation, I stored ten years worth of charts at Storage Quarters, Garden City, NY. The stored written charts are most likely sufficient if Medicare, Medicaid, or GHI wants to audit me. Thank you very much for such an excellent recommendation. I feel confident that the charts will be available if ever needed.
The final hurtle was how to back up the medical billing system (American Medical Software or AMS) I used in my office. . . You were kind enough to put me in touch with several people so that I could make a decision as to backing up the electronic medical record in case they are needed in the future.
After the advice from James McNally and the technicians at AMS . . .I feel comfortable that we are in a good position in case we are ever audited.
Most importantly, I want to thank you for all your kind and generous assistance without which I would not have been able to feel comfortable with my final decision.
The following is from DocBookMD, the app that helps you safely messenger your staff and other Society members.
Is texting HIPAA compliant? Let’s get this out of the way. Text messaging (SMS) is not HIPAA compliant. Not even a little bit.
Text messaging is not HIPAA compliant because it lacks encryption, meaning messages are vulnerable to interception during transit. What’s more, because in the vast majority of cases text messages are stored on a device’s internal storage, it makes them easy to access if a device winds up lost or stolen.
There is a misunderstanding surrounding text messaging and HIPAA compliance which stems from the complex language used within the Privacy and Security Rules. While neither of these rules specifically mention text messaging per se, they do outline certain conditions pertaining to electronic communication within healthcare, stating that a system of administrative, physical, and technical safeguards must be in place to ensure the confidentiality and integrity of protected health information (PHI) when it is in transit and at rest.
Given the fact text messaging cannot provide such safeguards, it makes text messaging an incredibly risky means of communication, particularly when exchanging PHI.
Text Messaging in Healthcare: Understanding the Risks
In recent years, a rising number of healthcare organizations have implemented BYOD (bring your own device) policies due to the speed, convenience, and cost–saving benefits of mobile technology. As a result, more and more medical professionals have come to rely on their personal mobile devices to streamline their work flows.
With this influx of personal mobile devices infiltrating clinical communications, there is a considerable risk of sensitive data falling into the wrong hands. Any organization which permits even a single breach of texting PHI could face fines of up to $50,000 per vulnerability, per day that the breach goes uncorrected. To make this matter worse, that same organization could face significant fines from the affected patient, a cost which could be devastating a small or medium sized practice.
Besides text messaging, apps offering instant messaging such as Facebook Messenger, WhatsApp, and Skype are becoming increasingly popular. But these are still not risk–free options for healthcare professionals.
Take WhatsApp, for example. While messages sent within the app are securely encrypted from sender to receiver – satisfying part of HIPAA’s encryption requirements – the fact that WhatsApp does not offer any secure storage, nor secure access controls to use the app, makes it a risky option when exchanging ePHI. If a device is misplaced, any unauthorized individual would be able to access the messages within the app, including any ePHI held within the WhatsApp account. Additionally, the app lacks an audit trail, making it impossible to know if and when a sent message has been received or read by the intended recipient(s).
To avoid fines and other ramifications, text messaging and other instant messaging apps should be addressed under the HIPAA security rule as part of an organization’s risk analysis and management strategy.
In a bid to overcome these challenges, healthcare organizations should consider implementing a HIPAA–secure mobile messaging system, such as DocbookMD. Designed for healthcare from the ground up, DocbookMD provides all of the necessary safeguards to ensure the integrity of PHI throughout its entire lifecycle, while offering users the ease and familiarity of a mobile messaging app.
For more information visit https://www.docbookmd.com/explore/
The Society offers members access to IdilusHR, an organization that provides custom HR and benefit solutions, to provide a variety of services to benefit both our members and their practices. Among these benefits is a variety of affordable and comprehensive medical insurance solutions In addition, IdilusHR is offering all New York County Medical Society members a 20 percent discount on their administrative fee.
It is important to understand that IdilusHR is not an insurance broker but instead a PEO. That means that they are providing a comprehensive HR package that includes the ability to purchase health insurance and other benefits as large employer and a lower rate. They charge a fee for their services on a monthly basis. Hopefully the savings resulting from large volume purchasing and reduced accounting and payroll costs will offset a significant percentage of their monthly fee. (Please note that some people may not qualify for all plan offerings.)
Click on the link below to see how IdiliusHR can solve your HR headaches. For information, go to https://www.idilus.com/ Click on the program tab for Sole Prop Program, and then click on the NYCMS Logo. Enter the code NYCMS for the password.
Flushing Bank is proud to be a sponsor of The New York County Medical Society. At Flushing Bank, we pride ourselves on providing our customers with customized solutions to meet the unique needs of each business segment. Over the years, we have established relationships with many small to mid–level medical and dental practices through our suite of products and services designed specifically to meet the needs of the medical and dental community.
To speak to the folks at Flushing about your practice’s banking needs, call George Bader at (646) 923–9524.
Last March, Winston temporary employee Christian Winn was involved in a dramatic rescue when a patient when into cardiac arrest on the F train at Roosevelt Avenue – 74th Street Station. . Mr. Winn, was participating in a City program to put more EMTs in subway stations. His station is staffed by Winston Medical Staffing, the Society’s endorsed employment service. The story had a happy ending for the passenger, and Mr. Winn was recognized by the MTA for his role.
In its continuing effort to introduce members to services that will help their practice thrive, the New York County Medical Society is pleased to announce the addition of a key Business Partner to help your practice with services you use every day. Storage Quarters is a comprehensive, full service company specializing in document storage, records management, scanning records and imaging, secure document destruction, self storage and on–demand storage.
The company specializes in the protection and management of your information. Your business or personal possessions are your most important assets. Storage Quarters customizes information management solutions to suit your needs and always offer a cost–effective quote. Now, Storage Quarters is offering special savings to New York County Medical Society members.
With this new arrangement, Society members will receive discounts on:
• Initial pickup and transport of files (NO Charge as opposed to the $39.95 fee non-members pay);
• Discount on the minimum storage fee (20%) ;
• Discount on 1.2 cubic foot box storage (10%);
• Discount on destruction charges, (20% off) and more.
Storage Quarters has scanning, storage, shredding services, with a number of easy and professional options for physicians trying to determine how to work with paper files and material in their office.
Citi Waste is now an exclusive provider of medical waste management services offering deep discounts to New York County Medical Society members. Whether sharps, red–bag, chemo, pathology, hazardous, or pharmaceutical waste, Citiwaste will work with you to classify and segregate waste streams for best pricing.
In addition, Citi Waste will determine the appropriate service frequency and deliver the supplies you need to package wastes. Guaranteed savings with no fuel, stop, energy, or environmental fees. Medical waste manifests available online 24/7 at no charge. One provider for all your medical, hazardous, and pharmaceutical waste.
Protection for your business with complete regulatory compliance. Call David at (718) 372-3887 to learn more about how Citi Waste can save you money.
Lawrence Dubin, MD, died April 27, 2018. Doctor Dubin received his MD degree from Yale University School of Medicine in 1958.
Richard L. Rovit, MD, died, Apri,l 2018. Doctor Rovit received his MD degree from Jefferson Medical College in 1950.