June 12, 2014

National Update

ONC making physicians' health IT concerns a priority

In response to a relentless push by the AMA to improve the interoperability and usability of electronic health records (EHR), the Office of the National Coordinator for Health Information Technology (ONC) last week released its 10-year vision for health IT aimed at nationwide interoperability.

Interoperability is a core element for delivering better care at lower costs and achieving better health. But this goal remains widely unrealized, despite years of work and billions of dollars in investment. In fact, most data exchange still occurs via fax.

The AMA has continued to push for significant restructuring of the EHR meaningful use program to focus on interoperability, electronic medication management and quality. The AMA underscored this case in official comments, including:

To that end, ONC chief Karen DeSalvo, MD, recently restructured the workgroups for the agency's Health IT Policy and Standards Committees and is seeking more input from practicing physicians. The workgroups typically meet virtually twice a month for at least three hours per month to deliberate and make recommendations to their respective advisory committees. Interested physicians are encouraged to apply to serve on the workgroups by June 30. Applications can be submitted via the ONC's application database.

The AMA will continue pressing both CMS and the ONC to achieve this national priority. Read more about the AMA's ongoing efforts to improve EHRs and meaningful use.

AMA to CMS: Postpone new medical staff rules

An AMA letter (AMA login required) sent last week to the Centers for Medicare & Medicaid Services (CMS) expressed serious concerns about several of its recent changes (AMA login required) to rules governing hospital medical staffs.

These changes allow multi-hospital systems to have a single integrated medical staff for the system but require that medical staffs opt in or out. The letter outlines outstanding questions concerning implementation and strongly advocates that the agency postpone implementation of the rules. The AMA previously submitted formal comments (AMA login required) on this issue and will continue its advocacy in support of medical staff self-governance.

CMS to cover PQRS survey costs for small groups

Responding to AMA advocacy, the Centers for Medicare & Medicaid Services (CMS) now will cover the cost of administering the Clinician and Group Consumer Assessment of Healthcare Providers and Systems (CG-CAHPS) summary survey modules for groups of 25-99 eligible professionals.

Groups must implement the survey this year as part of their Physician Quality Reporting System (PQRS) reporting. CMS already covers the cost of CG-CAHPS for groups of 100 or more eligible professionals that are reporting through the group practice reporting option (GPRO) online interface.

CMS maintains that the survey has to be implemented through a certified survey vendor. The vendor CMS selected this year is RAND. No other company has been approved to implement the survey, which is in line with CMS' 2014 Physician Fee Schedule final rule. A CMS fact sheet, "2014 PQRS certified survey vendor made simple" outlines the method to report CAHPS for PQRS.

Clarity needed for federal provider non-discrimination policy

Citing the importance of physician-led health care teams, the AMA last week submitted formal comments (AMA login required) to the Centers for Medicare & Medicaid Services (CMS), urging the agency to clarify section 2706(a) of the Affordable Care Act (ACA) regarding "provider non-discrimination."

The AMA strongly advocated that the agency make it clear that section 2706(a) does not go beyond existing Medicare or Medicaid rules regarding the scope of practice of particular types of practitioners, nor does it require health plans and issuers to contract with particular types of practitioners or cover all types of services. Such clarification would be consistent with the statutory language in the ACA and with Medicare Advantage and Medicaid policies.

"We strongly believe that in order to ensure safe, high-quality health care, all health professionals must be held to the highest standard of care under scope of practice policies that appropriately match education and experience levels to particular procedures, services and other aspects of patient care," the letter states. "Section 2706(a) has been invoked, improperly, to support expansion of scope of practice beyond current state policies."

The AMA will continue its advocacy on this important issue.

Burwell confirmed as HHS secretary

The U.S. Senate last week confirmed Sylvia Burwell as the next secretary of the U.S. Department of Health and Human Services by a bipartisan vote of 78-17. Every Democratic senator voted in support of the nomination, as did 14 Republicans. Burwell previously served as the director of the Office of Management and Budget.

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Issue Spotlight

How using EHRs may become less burdensome, more beneficial

Usability issues with electronic health records (EHR) and unrealistic requirements for the meaningful use program rank among the chief causes of professional dissatisfaction among physicians, but more than four out of five doctors say they prefer to stick with this evolving technology that holds the promise of enhancing care than return to paper records, according to an AMA study by the RAND Corporation.

Here's how the AMA is getting EHR systems and program requirements on the right track:

Improving technology. Through its Professional Satisfaction and Practice Sustainability initiative, the AMA is developing a set of characteristics and recommendations to improve the usability of EHR systems, identifying opportunities to achieve these improvements, and determining a research agenda to advance the evidence base for increasing usability.

Among the top challenges identified so far are reduced productivity as a result of poor design and restrictive regulations, interference with face-to-face patient care, and a lack of interoperability. The AMA is taking these concerns directly to EHR vendors to encourage them to make the necessary changes in their future product designs and is working with the Electronic Health Records Association on these efforts.

In a recent letter to National Coordinator for Health Information Technology Karen B. DeSalvo, MD, the AMA called for an overhaul of the certification process for EHR technology to refocus attention on a more narrow set of requirements, such as achieving interoperability and usability. The AMA has been heavily engaged with Dr. DeSalvo, who assumed her post in January.

Revamping the meaningful use program. The AMA continues its intensive advocacy to address overly burdensome EHR regulations. Important improvements to the meaningful use program that the AMA has achieved for physicians include:

Under the leadership of Dr. DeSalvo, the ONC also has streamlined its health IT workgroups. The AMA expects that these more narrowly focused groups will include more practicing physicians to better address their needs and concerns.

Dr. DeSalvo personally requested input from the AMA prior to rulemaking for meaningful use Stage 3, which the AMA submitted last month in a formal letter. Among other recommendations, the letter reiterated the need for scrapping the all-or-nothing approach to meeting the program's requirements and replacing it with a 75 percent pass rate for an incentive and 50 percent pass rate for avoiding a penalty.

The AMA also has surveyed medical specialty societies about their priorities for Stage 3 and plans to send CMS a more in-depth letter reflecting these findings.

The AMA continues to press strongly for a more flexible set of criteria physicians must meet to achieve meaningful use and avoid financial penalties.

Developing physician tools. Finally, the AMA is working to develop and distribute educational modules that will equip physicians to be better purchasers, implementers and users of EHR technology. The AMA plans to release these materials later this year.

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State Update

AMA takes on network adequacy with insurance commissioners

The AMA recently urged the National Association of Insurance Commissioners (NAIC) to ensure that insurers' physician networks offer meaningful access to patients and deliver transparent, up-to-date information.

In an effort to update its model network adequacy legislation, the NAIC is holding a series of staff-level meetings with stakeholders. The AMA participated in the "provider" discussion of the series, underscoring that insurers offering new plans on health insurance exchanges may be limiting access to care in some areas by significantly narrowing or dramatically tiering physician networks.

While such network strategies may not be entirely new, their increased use has generated scrutiny among policymakers and concern among patients and physicians. The AMA soon will hold a Federation-wide call to discuss the NAIC's work in more detail.

Visit the AMA website to download a new network adequacy issue brief (AMA login required), which includes AMA principles for network adequacy.

New state law requires binding notification of grace period

Louisiana last month became the second state in the nation to enact legislation addressing the Affordable Care Act's (ACA) "grace period." It is the first state to include binding notification requirements for insurers.

House Bill 506 requires, among other things, that "if the qualified health plan issuer informs the physician or other health care provider or his representative that the enrollee is eligible for services but not that the enrollee is in the grace period, the determination shall be binding on the qualified health plan issuer, and it shall pay the claims for covered services."

The new law is based on AMA model legislation from a package of AMA model bills that address narrow and tiered networks, the ACA grace period, and fair contracting practices that lay the groundwork for advocacy on state exchange implementation. Physician resources from the AMA on the ACA grace period also are available on the AMA website.

Five new states added to scope-of-practice geomaps

The AMA Geographic Mapping Initiative has been updated to include a third batch of geomaps, including Connecticut, Delaware, Indiana, Pennsylvania and Wisconsin. The geomaps have a fresh new look and have been modernized to reflect 2013 clinician and demographic data.

Updated geomaps will continue to be rolled out on a state-by-state basis through the middle of next year. These updates are made possible by a generous grant from the AMA Scope of Practice Partnership and collaboration with the American Academy of Family Physicians' Robert Graham Center.

The AMA Geographic Mapping Initiative compares where physicians practice with where non-physicians practice in all 50 states and the District of Columbia. The power behind this mapping resource is that a medical society can overlay the physician map with non-physician maps to visually demonstrate to lawmakers that non-physicians and physicians tend to practice in the same large urban areas throughout almost every state.

The maps compare physician specialties with the following non-physician groups: audiologists, midwives, naturopaths, nurse anesthetists, nurse practitioners, optometrists, oral and maxillofacial surgeons, physical therapists, podiatrists and psychologists.

Medical association staff can access the updated geomaps online (AMA login required). For login assistance, email Wendy Holmes of the AMA.

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Judicial Update

Patient safety at stake in case before U.S. Supreme Court

A case being evaluated by the nation's highest court will decide whether state health care licensure boards will retain their authority to regulate their health care professions to shield patients from potentially unlawful practice without fear of being second-guessed by the federal government.

The Supreme Court of the United States announced in March that it would hear North Carolina State Board of Dental Examiners v. Federal Trade Commission (FTC), a case previously decided in favor of the FTC's claim that state licensure boards should be subject to a federal antitrust law.

In an amicus brief filed by the Litigation Center of the AMA and State Medical Societies, along with the American Dental Association and 16 other health care organizations, physicians expressed concern that upholding the lower court's ruling would have "perverse consequences" for patients and the public.

The threat of antitrust liability may "cause state regulatory authorities to forbear from regulating at all in areas where the need to protect the public from unsound medical practices or unqualified medical practitioners is most critical," the brief (AMA login required) said.

Four state bars and 22 state attorneys general also expressed their support for the North Carolina State Board of Dental Examiners in amicus briefs submitted to the U.S. Supreme Court.

Attorneys argue case in mock hearing: Physicians at Monday's open forum of the AMA Litigation Center heard both sides of the case in a mock court session during the 2014 AMA Annual Meeting.

Presenting the opening arguments the state licensing board is expected to make was Jack R. Bierig, a partner in the Chicago law firm of Sidley Austin. Richard Feinstein, a partner in the Washington, D.C., law firm Boies, Schiller and Flexner, argued the position the FTC is expected to assert. He previously served as director of the FTC's bureau of competition. Mark E. Rust, a managing partner of Barnes and Thornburg in Chicago, acted as judge.

If a state professional licensure board is not immune to antitrust laws as an agency of the state, qualified and conscientious professionals may be discouraged from serving on such boards for fear of becoming embroiled in federal antitrust litigation, ultimately distorting health care policy and harming patients, Bierig said.

The FTC is expected to argue that the state licensure board was subject to antitrust laws because of the composition of the board, which is primarily competitive professionals, and that the board exceeded its authority in sending cease and desist letters.

Briefing on this case in the U.S. Supreme Court should be finished soon, and oral arguments are expected to be scheduled for the fall. Read more in AMA Wire™.

Court ruling upholds standard for expert witness testimony

A recent decision of the Maryland Court of Appeals affirmed the need for expert witnesses in medical liability cases to be fully qualified.

In Fusco v. Shannon, at issue was whether hematologist/oncologist Kevin Shannon, MD, had adequately warned the patient Anthony Fusco about the dangerous potential side-effects of the drug amifostine, which the physician prescribed to Fusco for protection against the harmful effects of his radiation and chemotherapy.

Fusco's estate sued Dr. Shannon, claiming that he had failed to warn Fusco properly about the side effects associated with amifostine and thus did not obtain Fusco's informed consent to the medication.

The estate offered a pharmacist as an expert witness to testify about the information he thought Fusco should have been given to obtain his informed consent to the amifostine. The trial judge, however, found that the information the pharmacist claimed should have been given did not prove a lack of informed consent, and barred the testimony.

An appellate court then reversed the trial court's decision and held that the pharmacist had shown a lack of informed consent. As a result of a further appeal by Dr. Shannon, the trial court ruling was reinstated, which stated that the adequacy of informed consent must be measured by the disclosure of the materiality of the risks associated with the administration of the drug. That includes not only the existence of potential side effects but also the likelihood that they would occur and their likely severity.

Because the pharmacist was not qualified to speak to the latter two criteria, his testimony would not demonstrate a lack of informed consent.

The Litigation Center of the AMA and State Medical Societies filed a friend-of-the-court brief in support of the physician defendant, alongside Med Chi, the Maryland State Medical Society, and Medical Mutual Liability Insurance Society of Maryland.

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Other News

Register to view Sunshine Act disclosures before release

Physicians wishing to review and potentially dispute their Sunshine Act financial disclosures must complete a three-step process to access their data:

Step 1: Register in the Centers for Medicare & Medicaid Services (CMS) Enterprise Portal. This gateway provides access to a number of CMS programs, so many physicians may have already completed this step.

Step 2: Request access to the Open Payments Program system. Physicians can do so by logging back into the CMS Enterprise Portal and following the appropriate steps. The step is scheduled to open July 1.

Step 3: Review their individual report and seek corrections through the Open Payments System. CMS reports that this step also will be available in July.

View the Sunshine Act timeline (AMA login required).

New AMA resource outlines physician rights under EFT standard

As of Jan. 1, health plans are required to offer electronic funds transfer (EFT) payments using the automated clearing house (ACH) network to physician practices that request this method of claims payment. ACH EFT, similar to direct deposit of paychecks used by many employers, is a funds transfer tool in which payer-to-physician payment is processed through the ACH network. In comparison to paper checks and virtual credit cards (AMA login required), the ACH EFT standard offers financial savings and reduces physicians' administrative burden.

The AMA has created a resource to help physicians understand their rights to make ACH EFT work most efficiently for their practices: "Know your rights and make ACH EFT work for your practice" (AMA login required). This resource details the physician rights and health plan responsibilities established in the new EFT standard and advises physicians on how to avoid the percentage-based fees and auto-debit programs some payment solution vendors are attempting to impose with ACH EFT. Access the AMA's EFT toolkit for additional information.

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News You Can Use

Following is suggested content to use in your association's communication vehicles in the month of June. Please email Terri Marchiori of the AMA to let us know which materials you're placing, your distribution channels, the response from your members and any other metrics, such as audience reach.


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Upcoming Events

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.

July 10-13:
National Conference of Insurance Legislators in Boston. AMA Board of Trustees Member Mary Anne McCaffree, MD, is speaking about neo-natal abstinence syndrome.

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