March 15, 2019
Volume 14 Number 2
Thursday, April 18, 2019, 5:30 p.m.: Free Risk Management CME on Personal E-Devices, and the EHR
NYCMS presents a free Risk Management CME program (2.5 Category I credits), on two important topics: “Personal Electronic Device Distraction and the Threat to Patient Safety,” and “Electronic Health Record: Ten Years and Still Risky.” This interesting program, on Thursday, April 18, 2019, will be held at Midpoint Bistro, 40 West 45 Street (between Fifth and Sixth Avenues). Registration at 5:30 p.m.; program 6:00 p.m. to 8:30 p.m.
We thank The Doctors Company, the Society’s endorsed medical liability company, for providing this program. Speakers will be Lisa M. McCorkle, Senior Patient Safety Risk Manager, Department of Patient Safety and Risk Management, NE Region, The Doctors Company; and Maureen M. Arciero, Esq., Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP. Objectives:
- Assess your practice/organization for opportunities to limit distractions and interruptions.
- Identify mitigation strategies to address patient-initiated healthcare recording, and other risks associated with electronic devices.
- Create a written plan for your practice, that outlines steps to reduce distractions from electronic devices when you are caring for patients.
- Educate colleagues about the challenges of defending medical malpractice claims that involve allegations of distracted practice.
- Assess the two categories of factors that contribute to EHR-related claims.
- Self-reflect on your use of copy and paste, workarounds, alert fatigue and other potential dangers of the EHR; implement one practice improvement measure.
- Seek out EHR training as needed, to enhance self-learning and optimize EHR use.
- Evaluate the risks of using scribes in EHR documentation.
The Legislative Horizon
Marijuana fight coming
Governor Cuomo’s Budget proposal includes a long section on marijuana. He would legalize recreational marijuana and create an office of Cannabis Management to oversee and regulate it, and would bring NYS’s existing medical marijuana program into the new department too (plus, he would expand the medical marijuana program). But not all legislators favor these ideas, and there have been warnings against legalization from the medical community and other sources. Questions include the following and more:
How will we protect motorists and others from those driving under the influence?
What will we do about the high rates of underaged marijuana use, substantiated by research?
How can we protect young people’s still-developing brains? (MSSNY says: Restrict use to age 25 and older.)
How can we set up funding for public health education and support programs?
Attached to this edition of our “e-zine” is MSSNY’s very interesting “White Paper” on medicinal and recreational marijuana. Topics include threats to the under-25 brain; threats to women in the first trimester of pregnancy; and statistics on the impact of legalization in Colorado, including traffic deaths. Also worth careful thought: MSSNY’s detailed recommendations for harm reduction if recreational marijuana legalization does proceed – and, detailed principles for the medicinal marijuana program, if expansion of that program also proceeds.
MSSNY offers a link that lets you send legislators an instant message, urging them to at least delay legalizing recreational marijuana: https://cqrcengage.com/mssny/app/write-a-letter?1&engagementId=495697
Collective negotiation by independent physicians (A.2393/S.3462): How would it work?
This bill, which MSSNY strongly supports, would amend the public health law to permit some collective negotiations between healthcare providers and health insurance plans - under close state supervision.
Currently, federal antitrust laws prohibit individual healthcare providers from collectively negotiating any provisions of managed care contracts. However, the “State Action” doctrine, which the US Supreme Court created nearly 70 years ago, permits collective action when it vindicates legitimate public interests and takes place with the state closely supervising. Under those circumstances, physicians would be allowed to communicate with each other and jointly negotiate with health insurance companies.
The bill would create a system under which the state would monitor the negotiations closely and permit them to go forward – or, if necessary, prevent them from going forward. If the negotiations were believed to threaten patients’ access to care - for any reason, including possible increases in healthcare costs - the Commissioner of Health would have broad powers to prevent the negotiations from continuing. Negotiations over professional fees would be permitted only where the plan had substantial market power and could cut physician reimbursements to levels that might jeopardize access to care. Further, the bill prohibits collective slowdowns, strikes or boycotts.
Given that many regions of New York continue to be dominated by a small number of insurers, and given the increasing preauthorization requirements that insurers are imposing on patient care, physicians’ ability to collectively negotiate patient-care terms is more important than ever. This bill does not increase the cost of health care; it will re-direct money away from insurance company profits, toward clinical care for patients.
MSSNY offers you a message link: https://cqrcengage.com/mssny/app/write-a-letter?4&engagementId=342513
“Single Payer” (the New York Health Act, A.5248) and other approaches to NYS healthcare system problems
The New York Health Act, designed to provide New Yorkers with taxpayer-funded insurance coverage without premium or co-pays, has passed the Health Committee and is now in the Codes Committee. The Health Committee debated questions related to private insurance, out-of-state injuries, effects on Medicare recipients and costs of the bill; the bill now includes long-term care insurance for NYS residents.
For a number of years, MSSNY has supported achieving universal coverage via a multi-payor system (and has opposed a single payor system), but the organization does recognize that perspectives on this issue vary widely. The bill now has a fairer collective negotiation provision and stronger parameters around prior authorization requirements, and MSSNY looks forward to continued dialogue and careful evaluation of the nuances – to help safeguard patients’ access to needed care from the physician of their choice.
Governor Cuomo’s proposed budget goes at NYS’s healthcare problems from another angle. The Governor would establish a Commission on universal health care, composed of health policy and insurance experts and supported by Department of Health and Department of Financial Services, which would develop options for achieving universal access to high-quality, affordable health care in New York. This Commission’s review process would consider all options for expanding access to care, including strengthening New York’s commercial insurance market and expanding programs to include populations that are currently ineligible or cannot afford coverage, as well as designing innovative reimbursement models to improve efficiency and generate savings to support expanded coverage.
MSSNY supports PBM regulation provisions in Budget
Said Moe Auster, MSSNY’s Senior Vice President for Legislative and Regulatory Affairs, testifying early this February before the NYS Assembly Committee on Ways & Means and the NYS Senate Finance Committee:
We support the proposal in the Governor’s Budget to require New York State Pharmacuetical Benefit Managers (PBMs) to be licensed by 2021, and to disclose any financial incentive for promoting a specific drug or other financial arrangements affecting health insurers. The proposal would also give the NYS Department of Financial Services the power to suspend or refuse to renew a PBM license if it determines that the PBM has violated insurance law or provided misleading information in its application or reports, or other reasons.
Physicians and other independent care providers are very concerned with the near-approval of the massive mergers in the healthcare marketplace, with the proposed acquisitions of Aetna by CVS/Caremark, and of Express Scripts by Cigna. We fear that these combined entities will greatly empower their subsidiary PBMs to impose additional prior authorization hassles for physicians and their staff, even more burdensome than the ones that already unduly interfere with patient care delivery. Already, New York physicians spend an inordinate amount of time receiving and dealing with prior authorizations - several studies have highlighted the significant increases in physicians’ prior authorization burden in recent years.
Adding to our concerns: PBMs are not regulated by the state of New York, even though they are enormously involved in developing prescription drug plans, including the determination of which drugs will be “preferred” and which drugs will be placed on higher cost-sharing tiers. These decisions are often based upon financial deals made with drug manufacturers and wholesalers, and do not always lead to cost savings. We are concerned that the CVS acquisition of Aetna will result in a massive accumulation of power in the areas of drug dispensing, drug coverage management, health insurance and medical care delivery.
We urge you to stand up against this accumulation of power in our healthcare system, which jeopardizes patients’ ability to continue to receive necessary care from their physicians. Certainly, oversight and transparency are important first steps in helping to assure that PBMs, on behalf of health plans, make formulary decisions that will not inappropriately interfere with patient care delivery.
MSSNY thanks the Governor for proposing to continue the Excess Medical Liability Insurance Program
We are grateful that Governor Cuomo has proposed to continue the Excess Medical Liability Insurance Program and fund it at its historical level of $127.4M, and we urge the Legislature to include this funding for the Excess program in the final budget adopted for 2019-2020. We are pleased that - unlike past years’ proposals – this year’s proposal does not require physicians to meet specific conditions to receive this coverage.
The program provides an additional layer of $1M of coverage to physicians with hospital privileges who maintain primary coverage at the $1.3 million/$3.9 million level. Since the program’s inception in 1985, its cost has been met by utilizing public and quasi-public monies. It was created as a result of the liability insurance crisis of the mid-1980s; the goal was to address physicians’ concerns that their liability exposure far exceeded available coverage limitations. Physicians legitimately feared that everything they had worked for throughout their professional lives could be lost as a result of one wildly aberrant jury verdict.
Unfortunately, this fear continues, since nothing has been done to mitigate it. The size of verdicts in New York State has increased exponentially, and the severity of awards continues to grow steadily each year. This is not a function of New York’s population size: New York again had the dubious distinction of having the highest per capita medical liability payouts in the country, about 500 percent greater than the State of California, which has enacted meaningful liability reforms.
The problems of the medical liability adjudication system do not just affect physicians – they affect the cost of all health care. Billions of dollars are unnecessarily spent each year on defensive medicine, such as unnecessary MRIs, CT scans and specialty referrals. An MIT study reported in a July 2018 New York Times article found that the possibility of a lawsuit increased the intensity of health care that patients received in the hospital by about 5 percent. Moreover, New York’s Statute of Limitations for medical malpractice actions was recently expanded, with actuaries predicting that premiums may exceed their already outrageously high levels, and defensive medicine may increase as a result. More physicians may refer patients for additional diagnostic tests or refer them to specialists, beyond what they believe is clinically indicated, to better assure that the record is “complete” in case of a lawsuit many years later.
New York must follow the lead of other states that have passed legislation to bring down the cost of medical liability insurance. MSSNY is willing to discuss proposals that will meaningfully reduce medical liability premium costs for our physicians. Meanwhile, however, we must take all steps necessary to protect and continue the Excess program, to ensure that physicians can remain in practice in New York State.
MSSNY’s concerns about Workers Compensation provisions in the Budget
Again, from the testimony of MSSNY’s Moe Auster:
About the involvement of non-physicians in Workers Comp: We have strong concerns with a Budget proposal that would enable several new categories of non-physicians to treat workers (often including workers who are seriously injured), and be directly reimbursed for care to those workers, without clarity as to whether and how these non-physicians will coordinate with other practitioners when the patients need specialized care. For example: This legislation would permit a nurse practitioner to make a determination as to the degree of disability, as well as a causal analysis between the injury and work. If the involvement of a specialized physician is delayed because the injured worker patient was initially treated by a nurse practitioner, that delay could harm the patient’s prospects for long-term recovery - particularly if the insurance company has overruled suggested treatment options before the specialized physician becomes involved in the care. And, the failure to involve a specialized physician could also adversely affect the injured worker’s ability to obtain federal disability benefits.
About proposed changes to the role of county medical societies in Workers Comp: We are concerned that the proposal could minimize the role of county medical societies in recommending physicians to serve as Workers Compensation treating providers or independent medical examiners. (This is an important community function that the county medical societies currently perform.) The county medical societies’ processes help to assure the timely, efficient and complete approval and submission of physician applications to the workers compensation board. The societies help to ensure that all necessary information is included, before a physician’s application is presented to the Board and the Board performs its own review of the physician’s qualifications. The societies report many instances where incomplete applications are presented: Often, the society staff is in the best position to know when physician applicants have provided inaccurate information in their application – as, when their hospital privilege status may be under review but the disposition is not yet final. And, the county medical society staff and physician reviewers work with physician applicants to assure that their residency, licensure and credentialing information is attached.
If the State were to minimize the county medical societies’ role, the Board would need to assign more staff to timely review - and contend with - processing “bottlenecks” with these applications.
About incentives to physicians to treat Workers Compensation patients: Last year was the first time the Workers Compensation physician fee schedule was increased in over 20 years – and it was a 5 percent increase at that, far too little to address the years of neglect. If we really want to address provider access in Workers Compensation, it is imperative to work even harder to reduce the barriers that deter physicians from participating in the program. It has been documented that workers compensation claims require far more administrative time to manage and process than claims through commercial health insurance coverage. We appreciate that the Workers Compensation Board is taking steps to simplify claim submission, but it is imperative to ensure that claims are paid fairly. Some of the benefits of the (long overdue) fee-schedule change are negated by the many situations where carriers pay claims inappropriately, well below the stated fee schedule: The carriers inappropriately assert a contractual discount, even if no contract has been signed between that physician and that carrier. Our concern is that any payment update will be swallowed by such abusive carrier tactics.
Contact legislators about Workers Comp: Here are phone numbers and email addresses:
Proposed rollback of “Prescriber Prevails”: Prior authorization burdens will grow
MSSNY has raised strong concerns about a Budget proposal to eliminate “Prescriber Prevails” – a protection that’s currently given to prescribers to better ensure that their Medicaid patients can obtain prescription medications without extraordinary insurer obstacles. Physicians are already drowning in paperwork and other administrative burdens; a study in the Annals of Internal Medicine reported that, for every hour a physician spends delivering care, two are spent on paperwork. Moreover, a recent AMA study found that 84 percent of responding physicians said the burdens associated with prior authorization were high or extremely high, and 86 percent believe burdens associated with prior authorization have increased during the past five years. The survey findings also showed that every week, a medical practice completes an average of 29.1 prior authorization requirements per physician - which takes an average of 14.6 hours to process (the equivalent of nearly 2 business days).
Tobacco products, etc.: NYS Assembly passes purchase age increase, other bills move forward
By a margin of 120-26, the NYS Assembly has passed legislation (A.558-A/S.2833) increasing the purchase age for tobacco products from 18 to 21 years of age. The bill is now before the Senate Finance Committee. A 2015 Institute of Medicine report concluded that raising the purchase price to 21 will have a substantial positive impact on public health; it will significantly reduce the number of adolescents and young adults who start smoking, will reduce smoking-caused deaths, and will immediately improve the health of adolescents, young adults and young mothers who should be deterred from smoking. MSSNY has provided a link for you to contact Senators: https://cqrcengage.com/mssny/app/write-a-letter?9&engagementId=485313
Meanwhile, two more bills have moved out of the Assembly and Senate Health Committees: A.47/S.428, prohibiting the sale and distribution of electronic cigarettes containing flavored “e-liquids,” and A.389/S.592, the “Tobacco-Free Pharmacies Act,” banning the sale of tobacco products in pharmacies. MSSNY supports these measures, and also supports similar proposals that have been advanced in the Governor’s budget.
Senate and Assembly bill mandating patient education for C-sections; physician action urged
Senate Bill 2888/A.318, which has passed the Assembly, has advanced to the Senate calendar after being reported from the Senate Women’s Issues Committee by a 4-2 vote. All physicians and other healthcare providers would be required to provide all maternity patients with a specific set of written information on the risks associated with Cesarean section. MSSNY and ACOG warn that this measure interferes with the physician-patient relationship by requiring the same written communication to every pregnant women for whom the physician recommends a C-section, even though individual patients may have different risk factors and health needs – and even though the “script” may not comply with the latest medical evidence on Cesarean section. To send an instant message, click on: https://cqrcengage.com/mssny/app/write-a-letter?3&engagementId=496455
Medical liability: Proposal to exclude physicians’ “Sorry” statements as admissions of guilt
Assemblywoman Sandy Galef has introduced legislation (A5909) whereby a physician’s statement indicating apology or regret would be excluded as an admission of liability in malpractice lawsuits. Under current law, when there is a negative outcome, physicians open themselves up to malpractice liability if they express condolences to patients and/or their families – even if the physician has done absolutely no wrong. At least thirty-six states have passed similar legislation. This measure would allow physicians to provide the apology or validation that families and patients often say they hope for, by preventing “Sorry” statements from being used as admissions of guilt in legal proceedings. Further, research has shown that in those states with apology laws, malpractice cases are solved 20 percent faster and average claims payment amounts are lower. To send an instant message, click on: https://cqrcengage.com/mssny/app/write-a-letter?16&engagementId=496455
Helping physicians and patients deal with insurance companies: Bills in the NYS Legislature
Assemblymember Gottfried re-introduces a series of health insurance reform bills:
Assembly Health Committee Chair Richard Gottfried has re-introduced important health insurance reform bills supported by MSSNY, to help patients to receive the care they need and help physicians advocate for that care on patients’ behalf:
- A2393 – Gives independently practicing physicians the much-needed right to negotiate collectively with insurance companies on patient care issues, under certain circumstances and with close state supervision.
- A3038 (also carried by Senate Insurance Committee Chair Neil Breslin – S.2847) – Includes many provisions to improve insurers’ operations by speeding up and improving prior authorization requirements and duration; by ensuring that authorizations are reviewed by qualified individuals, using evidence-based criteria; and by preventing harmful changes in prescription-drug formularies.
- A3076 – Requires that health insurers’ medical necessity decisions be made by a physician who is NY-licensed and qualified to perform the procedure in question.
- A2983 – Prohibits onerous clauses in contracts between physicians and HMOs, including clauses that reduce payment, impose inappropriate mandates on prescriptions, and allow changes in prescriptions by individuals who are not the prescribing physician or the collaborating pharmacist.
- A2899 (also carried by Senate Health Chair Gustavo Rivera – S.873) – Prevents insurance companies from using extrapolation (except in certain circumstances), to unfairly assert purported overpayments and attempt to recoup them.
- A2799 – Ensures “prescriber prevails” protection for all Medicaid prescriptions, giving physicians the final say in prescribing.
Senator Rivera introduces legislation helping patients access treatment by the physicians of their choice:
Senator Gustavo Rivera, Chair of the New York State Senate Health Committee, has introduced three bills that MSSNY strongly supports, on health insurance networks and the interaction between physicians and insurance companies:
- S3461 would require health insurers to cover services provided by out-of-network (OON) providers. OON coverage is not mandated in New York, and although Exchange officials have “strongly encouraged” insurers to offer this coverage, many New Yorkers do not have this option available. Additionally, many patients are restricted to limited physician networks that do not provide adequate physician choices.
- S3462 would (in limited instances) allow independently practicing physicians in New York State to conduct some collective negotiations by creating a system under which the state would closely monitor those negotiations, and would approve or disapprove the negotiations from going forward. Many areas of New York are dominated by a small number of insurers; this bill would help to even the playing field between physicians and insurers.
- S3463 would provide due-process protections when health insurers seek to terminate physicians from their networks by failing to renew the physicians’ contracts. Current law prohibits a health insurance company from terminating a physician’s contract without explaining, in writing, the reasons for the proposed contract termination. It also requires the insurer to give the physician an opportunity for a hearing, by a panel of three persons including a clinical peer in the same or similar specialty. But, these provisions do not apply to the non-renewal of a physician contract! This bill would correct that disparity.
Physicians urged to oppose further dual-eligible payment cuts proposed in state budget
Please urge your legislators to reject a Budget proposal that would significantly cut the physician payments that Medicaid makes, to cover the Medicare Part B deductibles of “dual-eligible” patients. You can send a letter in opposition by clicking https://cqrcengage.com/mssny/app/write-a-letter?0&engagementId=495714.
You can read MSSNY’s memo of opposition to the Legislature at: https://www.mssny.org/Documents/2019/Governmental%20Affairs/State/2019%20Memos/Budget%20Dual%20Cut%20-%20Oppose.pdf.
While the exact cut for each physician would depend on the physician’s patient mix and services provided, MSSNY estimates that the cut would be $80 per patient. That is because the 2019 Medicare Part B deductible is $185, and on average Medicaid only pays 56 percent of the Medicare fee schedule in New York.
Given the hundreds of thousands of patients in New York who are “dually eligible,” this proposal could have an impact on practices with a large number of dual-eligible patients. If a physician’s patient mix includes 500 dual-eligible patients (as in many specialty physician practices), that decrease would be over $40,000 per year – funds that could otherwise go toward upgrading electronic health records, hiring additional staff to allow for more time with patients, or upgrading facilities or other medical equipment. In past years, physicians have had to absorb significant cuts from Medicaid for the care that they provide to their senior and disabled dual-eligible patients, making it much harder for these physicians to deliver community-based care. Please let your legislators know how unfair this cut is, and urge them to oppose balancing the state budget on the backs of dedicated community physicians who are seeking to deliver quality care to their patients.
The Practice Environment
Because of the new tax law, you can no longer deduct NYCMS and MSSNY dues in your miscellaneous itemized deductions
You can only deduct those dues if you are filing a Schedule C or a corporate return. And don’t forget: You can’t deduct the entire amount of the dues. Not deductible – because the funds are allocated to lobbying – are: 30 percent of MSSNY dues, and 10 percent of Society dues.