Jan. 8, 2015

National Update

Sunshine Act guidance causes confusion about CME rules

Widespread concern was triggered when the Centers for Medicare & Medicaid Services (CMS) last month issued sub-regulatory guidance and frequently asked questions about when continuing medical education (CME) would be reportable in the Open Payments System under the Physician Payments Sunshine Act.

The guidance was intended to clarify the Medicare Physician Fee Schedule final rule provision that excludes independent CME from reporting in most cases but maintains specific circumstances when certain transfers to third parties could be treated as reportable indirect transfers.

Physician groups were concerned that CMS was reversing its decision in the final rule regarding transfers to CME providers that adhere to standards that ensure independence from manufacturer control or influence.

The AMA recently discussed this concern with CMS, and the agency confirmed that the example provided in the final rule regarding independent CME remains applicable. According to CMS, reporting will be triggered only if a manufacturer requires, instructs or directs the organization to use the funds solely for the benefit of physicians as a group or specified physicians.

CMS officials have suggested that the one caveat to this rule is instances in which the CME panel is so specialized that the manufacturer/group purchasing organization would know the identity of the recipients because the number of individuals qualified to provide the education would be extremely limited. The agency has said it plans to provide further clarification in the near future.

CMS proposes improved rules for Medicare ACOs

A new proposed rule issued Dec. 8 by the Centers for Medicare & Medicaid Services (CMS) is recommending several positive changes to the rules that govern Medicare accountable care organizations (ACO).

Among the proposed changes are several revisions that reflect recommendations the AMA made last year. As the AMA had urged, CMS will continue to permit ACOs to remain in a shared savings-only track. The previous rules would have required ACOs to start sharing in any losses they experience.

The proposal also would exempt physicians in certain specialties from the attribution process that assigns Medicare patients to ACOs. The AMA had requested changes to this policy because the current process leads to some specialists having exclusive contracts with one ACO when they would prefer to participate in multiple ACOs.

Comments on the proposal are due Feb. 6. The AMA is collaborating with several other organizations, including the National Association of ACOs, in developing a response.

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Issue Spotlight

Top advocacy issues for physicians to watch in 2015

The year ahead promises many changes and challenges for the medical profession. From taking on regulatory burdens to reducing prescription drug abuse, here are some of the topic advocacy issues physicians should watch.

1. The administrative load and competing regulatory programs. Studies show that one of the greatest frustrations to physicians is the time and expense they must devote to administrative and regulatory requirements, pulling time away from patient care without a direct benefit to care delivery or health outcomes.

In 2015, the AMA will intensify efforts to reduce barriers to providing high-quality care, including:

2. The Medicare physician payment system. Congress will need to act early this year to avoid a 21 percent pay cut scheduled to take effect April 1 under the sustainable growth rate (SGR) formula. Because Congress missed its opportunity last year to repeal the SGR formula using a bipartisan legislative framework, the AMA and physicians will continue communicating with lawmakers—including those newly elected—to make reforming the Medicare payment system a priority for the new Congress.

In addition to addressing the SGR formula, the AMA will be tackling other timely issues related to the Medicare fee schedule, including the value-based payment modifier, elimination of the global surgical period and potentially misvalued codes.

3. Adequate provider networks. The current trend toward very limited provider networks has necessitated physician action to ensure patients have access to the care they need. The AMA is bolstering its national- and state-level efforts to make sure health insurers are required to maintain adequate networks, provide timely information about the physicians and other providers to whom patients will have in-network access, and comply with all laws and regulations.

4. Prescription drug abuse and overdose. Most stakeholders now agree that the nation's prescription drug overdose epidemic should be addressed primarily through treatment, prevention and education rather than law enforcement. But much work remains to execute solutions in local communities. The AMA will continue to lead policy development on this issue in the states and nationally, and engage physicians in practical activities to prevent prescription drug abuse and allow pain management for patients who need it.

Follow timely coverage of these and other advocacy topics at AMA Wire®.

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State Update

Team-based care advanced in Michigan

Despite a tricky set of political circumstances and a lengthy last day of the state legislature's lame duck session, the Michigan State Medical Society (MSMS) was successful in protecting patients and serving the profession by defeating Senate Bill 2.

The legislation would have allowed nurses to diagnose and write any prescription—including those for controlled substances—without physician supervision. This sprint at the end of a two-year marathon took incredible work by the entire MSMS team, along with support and resources from the AMA.

The AMA looks forward to continuing to work with its partners at the state level to support coordinated team-based medical care that is physician led. Learn more about and access resources for the AMA's Physician-Led Team campaign.

New health policy resource series focuses on team-based care

A new series of advocacy documents on physician-led team-based care summarize relevant AMA advocacy and recently adopted AMA policy. Physician-led team-based care is consistent with the AMA's long-term strategic effort to shape innovative payment and delivery models, prepare future physicians to work in interprofessional teams, and improve health outcomes. The series is available in the right-hand navigation of the AMA Council on Medical Service Web page.

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Judicial Update

Medical staff autonomy upheld in state supreme court ruling

A decision by the Minnesota Supreme Court issued last week upheld important tenets of medical staff self-governance and authority in patient care that physicians have been fighting for in that state since 2012.

The state's high court overturned earlier rulings in Avera Marshall Medical Staff v. Avera Marshall Regional Medical Center, in which the lower courts had said the medical staff lacked the capacity to sue the hospital for inappropriate action and the medical staff bylaws did not constitute an enforceable contract between the hospital and medical staff.

The medical staff of Avera Marshall Regional Medical Center has been seeking to re-establish its autonomy after the hospital's governing board unilaterally amended the medical staff's bylaws. The move effectively stripped physicians of nearly all rights and responsibilities as the experts in medical direction.

"Patients were the big winners today as the Minnesota Supreme Court reestablished an appropriate balance of responsibilities between physicians and administrators," AMA President Robert M. Wah, MD, said in a statement. "The ruling will help promote hospital policies that align with the best interests of patients."

The Litigation Center of the AMA and the State Medical Societies, joined by the Minnesota Medical Association and other medical associations, supported the Avera Marshall medical staff by filing friend-of-the-court briefs before the Minnesota Supreme Court (log in) and the state appellate court (log in).

"This case shows yet again that when doctors enlist the help of organized medicine, the best outcome for patients and doctors can be achieved," Dr. Wah said.

Read more about this case and others in which the AMA Litigation Center is involved that deal with physician-hospital relationships.

Court case places patient-physician relationship in the balance

Two essential elements of medical practice—patient privacy and the patient-physician relationship—are at stake in a case before a federal appeals court that involves a state prescription drug monitoring program (PDMP) and surveillance by the U.S. Drug Enforcement Administration (DEA).

The issue in question is whether the DEA as a law enforcement agency has the right to access sensitive patient data without probable cause. PDMPs collect patient prescription data to be used by doctors and pharmacists for responsible treatment and prescription practices. Allowing unfettered access to such information could dramatically affect physicians' ability to prescribe the medications their patients need and limit the role of the PDMP to allow physicians to identify other prescriptions the patient has had which can enable more informed decisions about the patient's medical needs.

In this case, a federal magistrate judge ruled the DEA could enforce a subpoena against the Oregon PDMP that allowed disclosure of protected health information without patients' informed consent. The Litigation Center of the AMA and State Medical Societies and the Oregon Medical Association earlier this month filed an amicus brief in support of the Oregon PDMP and the American Civil Liberties Union of Oregon, which intervened in the case.

By asserting a right to PDMP data without probable cause or judicial oversight, the DEA is taking improper advantage of the health care data system and undermining the purpose of the PDMP, the brief said.

"Physicians who treat individuals or populations with pronounced need for pain medications, for example, may feel compromised in their ability to prescribe for fear of unsupervised law enforcement access to those patient prescription records," the brief said.

Visit the AMA Litigation Center's Web page to learn more about this case and others related to patient privacy.

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Other News

Before attesting to meaningful use, complete security risk analysis

Physicians who are participating in electronic health record (EHR) meaningful use must conduct or review a security risk analysis to meet either Stage 1 or Stage 2 of the program. Physicians are required to do so during each program year.

These steps may be completed outside or during the EHR reporting period but must take place no earlier than the start of the EHR reporting year and no later than the date the physician submits his or her attestation for that reporting period.

To meet this meaningful use core measure and maintain compliance with Health Information Portability and Accountability Act requirements, physicians should make sure to conduct a security risk analysis before attesting for 2014 meaningful use. The latest date physicians can attest to meaningful use for 2014 is Feb. 28.

The AMA has created a resource page to answer questions and help guide physicians through conducting a risk analysis.

New advocacy resource can bolster network adequacy efforts

A new briefing document that describes the AMA's work on network adequacy now is available as part of the AMA's "Improving the health insurance marketplace" series.

Some insurers offering Medicare Advantage health plans or plans offered through the insurance exchanges or employers are relying on tiered and narrow networks to achieve cost savings. In some cases, these strategies can result in networks that are inadequate to provide meaningful access to timely, convenient and high-quality care.

The AMA supports specific actions that can ensure network adequacy:

This new briefing document on network adequacy and additional resources in the marketplace series are available in the right-hand navigation of the AMA Council on Medical Service Web page.

Learn more about CMS' Physician Compare and public reporting

Plan to participate in an hourlong Virtual Office Hour session about the Physician Compare website at 11:30 a.m. Eastern time Jan. 22. During this session, the Centers for Medicare & Medicaid Services (CMS) will directly address questions you have about Physician Compare and public reporting.

Register for the session by sending an email to the Physician Compare support team at Use the subject line "Physician Compare Virtual Office Hour" and include your name, organization, telephone number and email address. All questions will be solicited in advance and must be received at the email account listed above by 5 p.m. Eastern time Jan. 14.

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Upcoming Events

Feb. 20-22:
Apply today to attend the AMPAC Candidate Workshop in Arlington, Va.

Feb. 23-25:
The 2015 AMA National Advocacy Conference will take place in Washington, D.C. Attendees will hear from Department of Health and Human Services Secretary Sylvia Burwell, members of Congress, political insiders and health sector experts regarding current efforts in health system reform. Come share your thoughts and take part in discussions that will help shape the future of the AMA's advocacy efforts and its work to improve the health of the nation. Register now.

April 15-19:
Apply today to participate in the AMPAC Campaign School in Arlington, Va. 

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News You Can Use

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

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