May 29, 2014

National Update

Sylvia Burwell expected to be confirmed as HHS secretary

The U.S. Senate Finance Committee on May 21 favorably reported out the nomination of Sylvia Burwell to become the next secretary of the U.S. Department of Health and Human Services (HHS) by a vote of 21 to 3. Burwell currently serves as the director of the Office of Management and Budget. The full Senate is expected to vote on her nomination in June after the weeklong Memorial Day recess. She likely will be confirmed with significant bipartisan support.

Congress looks at telemedicine, medical licensure issues

In an effort to facilitate greater adoption of telemedicine, Congress has been examining several related issues over the last several months. On May 1, the U.S. House of Representatives Energy and Commerce Committee's Health Subcommittee held a hearing titled "Telehealth to digital medicine: How 21st-century technology can benefit patients."

The hearing focused on how advances in technology can help improve patient access to care and quality of care, especially for those living in rural areas with poor access to primary care physicians and specialists. Additionally, Reps. Devin Nunes, R-Calif., and Frank Pallone, D-N.J., introduced H.R. 3077, the Telemedicine for Medicare Act of 2013. Rep. Scott Peters, D-Calif., also dropped H.R. 3507, the 21st-Century Care for Military and Veterans Act.

Both bills would allow telemedicine to be practiced across state lines by changing medical licensure laws. Under these bills, licensure would be based on the state in which the patient is located rather than on the state in which the physician is licensed to practice.

AMA policy supports state-based medical licensure because it protects the interests of patients and the ability of states to enforce state medical practice laws. The approach in these bills threatens to undermine state medical practice laws and would leave state boards helpless to protect their citizens in an adverse medical event. The AMA and the Federation of State Medical Boards (FSMB) have been holding meetings on Capitol Hill in opposition to both pieces of legislation.

As an alternative, the AMA and FSMB have been working to generate support in Congress for a draft interstate compact to streamline the licensing process and facilitate the responsible practice of telemedicine across state lines. Participation in an interstate compact would be voluntary both for states and physicians. Under the compact, physicians could become licensed in participating states and would be under the jurisdiction of the state medical board in which the patient is located.

The AMA will continue to work to protect state regulation of the practice of medicine and to advance telemedicine initiatives consistent with AMA policy. Learn more about AMA advocacy and key issues in telemedicine during a June 7 session at the upcoming 2014 AMA Annual Meeting.

House committee examines hospital Medicare issues

The U.S. House of Representatives Ways and Means Committee's Subcommittee on Health held a hearing May 20 to take a closer look at current hospital issues in the Medicare program.

The hearing focused on incentives for short inpatient stays and their unintended consequences, such as auditing by recovery audit contractors (RAC), a massive backlog of Medicare appeals and excessive growth of outpatient observation stays.

Subcommittee members expressed concern that while many patients receive the same care and services—regardless of whether they are admitted as an outpatient or inpatient—the classification of outpatient versus inpatient has a dramatic effect on Medicare hospital payments.

The AMA submitted a statement (AMA login required) for the record, outlining its opposition to Medicare's two-midnight policy and noting support of the Centers for Medicare & Medicaid Services' decision to adopt AMA recommendations for short inpatient stays. The statement also highlighted the AMA's formal recommendations submitted last year for improving the RAC statement of work, such as penalties for RACs that have a high error rate or that fail to meet administrative deadlines.

The AMA stressed that the issues being explored during the hearing significantly affect physicians as well as hospitals.

Proposal for handling disputed Sunshine Act data troubling

The way dispute and resolution interactions occur under the Physician Payments Sunshine Act (also known as "Open Payments") could deny physicians their due process rights if a recent proposal takes effect.

The Centers for Medicare & Medicaid Services (CMS) recently announced an information collection request (ICR) that specifically solicits comments on this process, but the agency chose to bury troubling details about the ICR in a supplementary zip file.

In its proposed dispute resolution process, CMS contradicts its own final rule and congressional intent for the Sunshine Act by allowing disputed data to be released to the public without flagging it as such. More troubling still, the agency would give drug manufacturers and group purchasing organizations the power to dismiss disputes unilaterally if a resolution is not reached by the end of the year.

The AMA strongly encourages all medical associations to submit comments in response to the ICR. Comments are due June 2.

Physician registration begins June 1: Physicians who wish to review and potentially dispute their Sunshine Act disclosures must complete a two-phase registration process to access their data. Phase 1, which begins June 1, includes user registration in CMS' Enterprise Portal. This portal enables access to a number of CMS programs, so many physicians may have already completed this step.

Phase 2, which will begin sometime in July, includes physician and teaching hospital registration in the Open Payments system. Physicians will have 45 days to review and dispute data (plus an additional 15 days to resolve disputes) before its public release by Sept. 30. Visit the CMS website for more information about the dispute and resolution process.

CMS proposes delays, exceptions for EHR meaningful use program

The AMA has been advocating strongly for changes to the electronic health record (EHR) meaningful use program based on physicians' struggles with meeting overly prescriptive requirements and certified EHR software that often disrupts their workflows and reduces productivity.

Responding to AMA concerns, the Centers for Medicare & Medicaid Services (CMS) has made several adjustments to the program since it began in 2011, including adding extra hardship categories for some physicians to avoid penalties and making Stages 1 and 2 longer than originally planned.

CMS announced on May 20 yet another incremental change. All physicians were required to implement and use Version 2014 certified software starting this year, regardless of which stage of meaningful use they were in. But in many cases, vendors were unable to deliver new software or upgrades in a timely manner for a variety of reasons, not the least of which was the overcomplicated nature of the EHR certification program.

Recognizing that physicians would be unable to meet the program's requirements without new software, CMS is proposing to allow physicians who could not fully implement 2014 Edition Certified EHR Technology (CEHRT) as a result of delays in availability to use instead Version 2011 or a combination of Version 2011 and Version 2014. The proposed rule also would allow physicians who were supposed to meet Stage 2 requirements this year to remain in Stage 1 for an additional year.

As a result of limitations in CMS' registration and attestation system, the reporting options and methods for 2014 clinical quality measures would depend upon the edition of CEHRT that a physician uses for his or her EHR reporting period in 2014. If a physician elects to use only 2011 Edition CEHRT for the EHR reporting period in 2014, he or she would be required to report clinical quality measures according to the reporting criteria originally finalized in the Stage 1 final rule and for 90 days only.

There is a 60-day comment period for the proposed rule. The AMA plans to post a summary of this rule and more detailed information about the clinical quality measures requirements on its EHR meaningful use Web page.

July 1 deadline for meaningful use hardship exemption approaching

Physicians who wish to stave off next year's financial penalties for not meeting electronic health record (EHR) meaningful use requirements have until July 1 to apply for a hardship exemption.

To date, only 600 physicians and other eligible professionals have filed for an exemption. But the AMA has been instrumental in securing additional hardship categories that should allow more physicians to avoid these upcoming penalties.

At the same time, some physicians—such as those who are new to Medicare or are in certain medical specialties—are automatically exempt from the penalty and do not need to apply for a hardship exemption this year.

Hardship exemptions are available in the following categories:

These hardship categories would wave financial penalties only. For physicians working toward an incentive payment, the above-mentioned meaningful use proposed rule, if finalized, would allow greater flexibility for physicians who are facing problems updating their technology this year.

View a CMS tip sheet about the meaningful use payment adjustments and hardship exceptions and the 2014 CEHRT hardship exception guidance document to learn more.

Don't proceed with eRx and PQRS audits, AMA tells CMS

The AMA submitted formal comments (AMA login required) May 16 opposing the Centers for Medicare & Medicaid Services' (CMS) proposal to conduct audits of physicians and other eligible professionals who received incentive payments under the Medicare Physician Quality Reporting System (PQRS) and ePrescribing (eRx) programs.

The AMA outlined the many challenges that these programs have presented for physicians—including variable annual requirements—and argued that audits of incentives received under these programs likely would be complex and erroneous. The AMA is committed to opposing the expansion of burdensome CMS audit programs and will continue its advocacy on this issue.

CMS withdraws proposal to limit coverage of key drugs

In an important win for Medicare patients, the Centers for Medicare & Medicaid Services (CMS) rescinded its proposal to remove antidepressants, immunosuppressants and antipsychotics from their protected class status.

The proposal, which the AMA strongly advocated against in a comment letter (AMA login required) submitted in March, would have removed the protected class status for these drugs, allowing Medicare Part D plans to significantly limit coverage for them. Doing so would have potentially exposed a vulnerable patient population to adverse drug events and other negative outcomes. All drugs in the six protected classes must be included on the formularies for all Medicare Part D drug plans.

The AMA also had opposed the proposed requirement for physicians to be enrolled in Medicare for their prescriptions to be covered by patients' Part D plans. Although CMS finalized this requirement, the agency modified it consistent with AMA recommendations. The agency will allow Part D coverage of prescriptions written by physicians who have opted out of Medicare. CMS also postponed the implementation date six months, from Jan. 1, 2015, to June 1, 2015.

Fact sheet examines new Medicare conditions of participation

The Centers for Medicare & Medicaid Services (CMS) has released a final rule on reducing regulatory burdens, which amended certain provisions of the Medicare conditions of participation for hospitals, including guidelines for medical staffs and physician oversight in rural hospital settings.

A new fact sheet (AMA login required) from the AMA is a helpful resource for reviewing the regulation; it outlines the major provisions of the rule and related AMA advocacy. The AMA has engaged extensively with CMS on these issues and submitted formal comments that urged the agency to retain physician leadership in hospital settings through medical staff autonomy and appropriate physician oversight. The AMA will continue its strong advocacy for physician leadership in hospital settings.

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Issue Spotlight

Medicare claims data release misses the mark

While the media has called the Centers for Medicare & Medicaid Services' (CMS) release of physician Medicare claims data a "treasure trove" of information, the data has proven far from valuable for patients and physicians.

Made available April 9, the data includes such information as billed charges, Medicare payments and the number of different Medicare services provided in 2012. But CMS failed to provide sufficient context for this data, which also has a long list of limitations.

The AMA has been at the forefront of efforts to make this a more productive situation, starting with educating patients and reporters about the considerable data limitations that could lead to inaccurate—and potentially harmful—conclusions and providing additional context.

A new resource page from the AMA also has helped physicians navigate the data release, including responding to inquiries from patients and the press. Among the resources provided are a patient handout, instructions for physicians to look up their data, and an email address to which physicians can submit complaints or questions about their data to CMS.

Although the agency has denied requests to establish a process for remedying errors, the AMA continues to press CMS to allow physicians to correct and explain their data. Not all the errors in the data base were made by physicians, the AMA told the agency in a letter (AMA login required) earlier this month. Moreover, unintentional administrative errors by physicians do not justify the deliberate release of inaccurate information that misleads patients.

The letter pointed out CMS' struggles with ensuring accurate information in its own data sets, citing the Physician Compare website, which needed a complete overhaul to correct inaccurate search functions and other problems.

The letter also presses the agency to conspicuously display and clearly communicate the data limitations. The agency's patient tool that requires website visitors to view a list of limitations was a step in the right direction, but more context and explanation still is needed, the letter said.

In addition, the AMA is urging CMS to develop and refine a more selective data set that could actually help patients and physicians make more informed care decisions. The data set released in April does not include crucial metrics that should be part of information intended for patients, including quality, outcomes and a full picture of the physician's practice.

"CMS should encourage the development of complete, accurate and timely data that could support a more value-driven health system," the letter said. "CMS' attention, however, has been diverted away from these more meaningful efforts to pursue information that fails to convey useful and accurate data."

An AMA code-by-code comparison of the data set to another 2012 data file found that codes for nearly 40 percent of physician services were missing. "Untrained observers … are using the data file to make flawed regional, specialty or other comparisons that CMS should do more to discourage," the letter said.

Further, the AMA told CMS that adding data from prior years before assessing the full impact of the initial data release was putting the cart before the horse. "To publish more years of data … is a diversion from the real work that is needed," the letter said.

The AMA will continue to advocate on behalf of physicians and their patients on this pressing matter.

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State Update

Kansas enacts price transparency legislation based on AMA model

Lawmakers in the Sunflower State took an important step toward greater price transparency and real-time adjudication of health care claims earlier this month by enacting the Predetermination of Health Care Benefits Act.

Based on AMA model legislation, the new law requires health plans that receive an electronic health care predetermination request from a physician or other health care provider to deliver detailed information about the expected coverage and costs. Specifically, the information provided must include:

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Judicial Update

Hear expert lawyers argue antitrust law at mock trial June 9

Witness a mock trial of an antitrust case now pending before the Supreme Court of the United States and earn continuing medical education credit during the 2014 AMA Annual Meeting

Attendees can hear expert trial lawyers argue North Carolina State Board of Dental Examiners v. Federal Trade Commission during the Open Meeting and Scope of Practice Summit of the Litigation Center of the AMA and State Medical Societies, from 7 a.m. to 9 a.m. June 9.

At issue is whether a state licensure board can be liable under the federal antitrust laws. Attendees will learn why the AMA believes this case could affect the ability of state medical boards to regulate the practice of medicine and protect public health. The mock trial will take place in Regency Ballroom A at Hyatt Regency Chicago.

The AMA is accredited by the Accreditation Council for Continuing Medical Education to provide continuing medical education for physicians. The AMA designates this live activity for a maximum of 1.5 AMA PRA Category 1 Credits™. Physicians should claim only the credit commensurate with the extent of their participation in the activity.

Physicians go to court for their mental health patients

Physicians are taking on the issue of mental health parity in a case against UnitedHealthcare, claiming the payer has "systematically implemented unlawful and deceptive practices."

The New York State Psychiatric Association (NYSPA) in March 2013 brought a class action lawsuit, representing its members, alleging violation of various state and federal laws, including the Mental Health Parity and Addiction Equity Act, the New York Parity Act and the New York Prompt Pay Statute.

The lawsuit claims that United's practices were "designed to create the illusion of impartiality, fairness and due process while simultaneously undermining access to treatment for the most vulnerable segment of our society."

The NYSPA recently filed an appeal in the 2nd U.S. Circuit Court of Appeals. The Litigation Center of the AMA and State Medical Societies and the Medical Society of the State of New York filed an amicus brief to support the legal standing of NYSPA to bring the lawsuit, calling out the AMA Code of Medical Ethics obligation of NYSPA to advocate for its members and its members' patients. Read more in AMA Wire™.

AMA, others support California's caps on damages law

Physicians in California could lose valuable protections of the Medical Injury Compensation Reform Act (MICRA) if a case before the state supreme court isn't reversed.

The case, Winn v. Pioneer Medical Group, examines whether a claim based on medical negligence committed against an elderly patient can give rise to an action under the California Elder Abuse and Dependent Adult Civil Protection act, thus avoiding protections allowed in medical negligence cases under MICRA, California's historic tort reform law. MICRA has helped keep liability insurance premiums low and ensured patients in the state have access to affordable health care by placing a $250,000 cap on noneconomic damages in medical liability lawsuits.

The case has come before the state supreme court following lower court decisions that called into question whether the case was of professional negligence or reckless neglect. The lawsuit arose after an elderly patient with peripheral vascular disease was treated over a period of time by Pioneer Medical Group (PMG) and, after her condition steadily worsened, died. The plaintiffs allege PMG violated the Elder Abuse Act by failing to provide the patient with proper care by not referring the patient to a specialist.

The Litigation Center of the AMA and State Medical Societies, along with the California Medical Association, California Hospital Association and California Dental Association, filed an amicus brief last month to ask the state supreme court to reverse the state court of appeal's ruling. Read more in AMA Wire™.

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Other News

Session June 7 to explore key issues in telemedicine, AMA advocacy

While telemedicine can improve access to care and reduce health care costs, several key issues need to be addressed as this relatively new field continues to evolve. Join the AMA Councils on Medical Service, Legislation, and Ethical and Judicial Affairs for an update regarding the AMA's work on emerging issues in telemedicine during a special session at the 2014 AMA Annual Meeting.

This session, which will be held from 9 a.m. to 10 a.m. June 7 in the Grand Ballroom of the Hyatt Regency Chicago, will discuss reports by all three councils on key dimensions of telemedicine, including:

New guide explains how to divide payments in integrated models

A new resource (AMA login required) from the AMA Innovators Committee provides guidance to practicing physicians on how to ensure that new delivery models translate into fair payments down to individual physicians and other health care providers.

The resource demonstrates how payments in new value-based models of care might flow to individual professionals, as well as the organizational and governing structures and the negotiating strategies that are likely to ensure payments are disbursed fairly among model participants.

Physicians also can earn up to 9 AMA PRA Category 1 Credits™ by listening to a series of archived webinars on delivery and payment reform, also courtesy of the AMA Innovators Committee.

Learn more: At the 2014 AMA Annual Meeting, the AMA Innovators Committee is sponsoring an interactive panel discussion, "Understanding what payment reform means for your practice," at 9:30–11 a.m. June 9 in Regency C at the Hyatt Regency Chicago. This 90-minute session is intended for all practicing physicians, medical students, residents and those in administrative medicine. It is designated for 1.5 AMA PRA Category 1 Credits™.

Physicians can meet EHR requirements using Direct

Direct is a system to securely send and receive encrypted health information. Physicians can check with their vendors about the tools available in their EHR products, such as Direct, that can help them meet Stage 2 of the meaningful use EHR program.

Direct is a technical standard for exchanging health information between health care entities, such as from physician to physician, compliant with the Health Insurance Portability and Accountability Act (HIPAA). It's like regular email with additional security measures, so messages are only accessible by the intended recipient. Direct addresses look like email addresses, but messages sent from a Direct account to a traditional email account (like Gmail) are not secure and will fail to send, keeping health information safe.

EHR vendors are required by Stage 2 of meaningful use to either provide Direct services themselves or via a third party. The Office of the National Coordinator for Health Information Technology (ONC) recommends that physicians talk to their vendors about what their systems can do and how physicians can obtain a Direct address. Learn more about Direct on the ONC website.

Avoid becoming a statistic: Conduct a HIPAA risk assessment

Two health care organizations are paying $4.8 million to settle charges that they violated the Health Insurance Portability and Accountability Act (HIPAA)—the largest HIPAA settlement to date. Physicians can avoid becoming a HIPAA statistic by making sure their practices are compliant with privacy and security rules.

The payment will settle problems that began in 2010, when the health records of 6,800 patients of New York and Presbyterian Hospital and Columbia University, two separate entities that operate a shared data network, ended up online. The data, which included patients' vital signs, medications and lab results, were fully searchable, according to a U.S. Department of Health and Human Services (HHS) press release.

According to HHS resolution agreements, one of the first issues HHS uncovered in its investigations at both organizations was that neither group conducted a risk analysis, the main way a health care organization can prevent breaches of electronic protected health information.

Learn how to complete an effective risk assessment with an audiocast produced by the AMA and the Healthcare Information and Management Systems Society (HIMSS). Find more ways to stay compliant with the AMA's HIPAA toolkit (AMA login required) and more free resources. Additional HIPAA resources and training are available from the AMA Store.

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Upcoming Events

June 7-11:
AMA Annual Meeting at the Hyatt Regency Chicago.

June 7 at 9-10 a.m.:
Update regarding AMA work on emerging issues in telemedicine, hosted by the Councils on Medical Service, Legislation, and Ethical and Judicial Affairs in the Grand Ballroom at the Hyatt Regency Chicago.

June 9 at 7-9 a.m.:
Mock trial hosted by the Litigation Center of the AMA and State Medical Societies in Regency Ballroom A at the Hyatt Regency Chicago.

June 9 at 9:30-11 a.m.:
Interactive CME panel discussion, "Understanding what payment reform means for your practice," hosted by the AMA Innovators Committee in Regency Ballroom C at the Hyatt Regency Chicago.

June 17-19:
Innovation HealthJam. Discuss the future of health care and new ways to solve challenges in medicine during this free online collaboration event. Register today.

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