December 3, 2015

National Update

File by Dec. 16 to avoid Medicare pay cut of 2-4 percent

Practices that may have thought they were safe from Medicare payment penalties next year could be in for an unpleasant surprise if they don’t take action now.

Problems with how the Centers for Medicare & Medicaid Services (CMS) has been collecting and analyzing data related to the Physician Quality Reporting System (PQRS) and the value-based payment modifier are leading to inappropriate penalties of 2-4 percent of Medicare payments for thousands of physicians.

How to avoid the penalty: File an informal review request with CMS before midnight Eastern time Dec. 16. CMS has said it will verify incentive eligibility and payment adjustment determinations for practices that file such a request.

Additional information about the process and contact information for questions is available in CMS’ informal review fact sheet.

Note: CMS has said the informal review system will be down Dec. 3-7 and unable to accept requests during that time.

Think it shouldn’t be this way? We agree. That’s why the AMA is pressing CMS to rectify the impossible situation in which it has placed physicians.

A letter (log in) sent Tuesday to CMS calls on the agency to not impose 2016 PQRS penalties or negative value-based payment modifier adjustments on physicians who attempted to comply with PQRS requirements during the 2014 reporting period.

Few changes in final joint replacement model

The Centers for Medicare & Medicaid Services (CMS) recently issued a final rule on a new payment model for comprehensive joint replacement (CJR), which will start in April. The CJR model will apply to all services provided to Medicare patients receiving lower joint replacement surgery from their hospital stay through 90 days after discharge in 67 metropolitan areas.

In a comment letter (log in) on the proposed rule, the AMA had called for numerous modifications, expressing concern about:

The final rule maintains the model as mandatory and continues to structure it as a hospital-driven model. It also continues to use a retrospective analysis of the claims that come in from all the various acute and post-acute care physicians and other providers who are involved in each patient’s care as the basis for reconciliation payments to or recoupments from hospitals.

CMS did not implement the AMA’s recommendation that the model empower orthopedic surgeons to work with hospitals and other providers to prospectively develop CJR teams that could coordinate care based on advance treatment plans that the teams would develop with each patient before their surgery.

The AMA remains concerned that the final rule could have unintended consequences for joint replacement patients and their physicians by encouraging hospital acquisitions of surgical practices and post-acute care facilities and discouraging innovative approaches to managing hip and knee problems. Once this approach is in place for joint replacement patients, it also could be implemented for hospital procedures performed by other specialties and preclude the ability to develop physician-focused alternative payment models.

In September, Reps. Tom Price, MD, R-Ga., and Phil Roe, MD, R-Tenn., were joined by more than 50 other bipartisan members of Congress in a letter that raised questions and concerns about the CJR model and urged CMS to delay it for at least a year. After the final rule was issued, the Doctors Caucus in the U.S. House of Representatives wrote to Speaker Ryan, seeking legislative action this month to delay the model’s implementation.

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State Update

NAIC approves model network adequacy bill, hears MLR testimony

The National Association of Insurance Commissioners (NAIC) last week approved the final network adequacy model bill without any debate. This concludes the process for the model bill, and the AMA is turning attention to developing key resources for states that may begin considering versions of the bill in 2016.

Resources will include a redline version of the bill, reflecting the AMA’s suggestions as well as talking points, Q&As and other background materials to help states enact meaningful network adequacy laws and understand arguments and positions taken by other stakeholders.

The NAIC also has reconvened the medical loss ratio (MLR) subgroup, which held a hearing during which regulators heard from interested parties about potential changes to the MLR formula.

The AMA testified that there is no evidence to suggest that carriers are having difficulty meeting the current MLR requirements and that auditors should focus on ensuring the expenses currently being claimed as quality improvement activities (QIA) are, in fact, appropriate QIAs before considering any changes. Regulators were highly skeptical of proposals from the insurance industry that would allow them to claim activities such as “fraud detection” as a QIA.

Additional work the NAIC likely will undertake in 2016 includes revising the Health Carrier Prescription Drug Benefit Management model act, increasing review of health care costs (including prescription drug costs) and potentially reviewing health care insurance mergers.

For questions about the NAIC, email Daniel Blaney-Koen and Emily Carroll of the AMA.

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Judicial Update

Court decides whether insurers can be sued for underpaid claims

The ruling of a U.S. court of appeal last month weighed whether physicians who are assigned insurance policy benefits have the right to bring lawsuits against insurers that fail to pay correctly for medically necessary services provided to covered patients.

The decision was a victory for physicians and patients. The appeals court concluded that an assignment of the right to payment is sufficient to confer standing to sue under the Employee Retirement Income Security Act of 1974 (ERISA). In so doing, it resolves several conflicting lower court rulings.

The North Jersey Brain and Spine Center (NJBSC) operated on three patients who were insured under employee benefit plans administered by Aetna. NJBSC obtained assignments “to all payments for medical services rendered” from each of these patients, yet the insurer denied or underpaid each of the claims. NJBSC appealed to Aetna without success and so filed a suit under ERISA.

A district court agreed with Aetna that the current assignments were insufficient. More specific language was required for patients to assign their full policy benefits to physicians, which would allow physicians to assert ERISA benefit claims.

On appeal, the U.S. court of appeals reversed the lower court decision. The appeals court concluded that “we are guided by Congress’s intent that ERISA ‘protect … participants in employee benefit plans,’ and our conviction that the assignment of ERISA claims to providers ‘serves the interests of patients by increasing their access to care.’”

The Litigation Center of the AMA and State Medical Societies filed an amicus brief in support of NJBSC.

Read more at AMA Wire.

Court case puts patient privacy in peril

What happens to physician-patient confidentiality when any government agency can obtain a patient’s prescription records without a warrant? A case before a state supreme court threatens to keep these indiscriminant lines of investigation wide open.

Lewis v. Superior Court of Los Angeles County, a case before the Supreme Court of the State of California, calls into question whether or not the California Medical Board infringed upon patients’ constitutional right to privacy when it obtained prescription data without a showing of good cause. The board did so through the California Department of Justice (DOJ) database, which allows broad and indiscriminate disclosures to state, local and federal agencies—including law enforcement—and fails to adequately protect patient privacy.

In this case, the Medical Board acquired three years of prescribing history of all of a single physician’s patients. In doing this, the Medical Board circumvented patients’ right of privacy guaranteed by the California constitution. This right protects sensitive medical information from disclosure without probable cause or judicial review.

The Litigation Center of the AMA and State Medical Societies filed an amicus brief in the interest of “ensuring that prescription drug monitoring (PDMP) databases … are governed by strong confidentiality safeguards” and “the disclosure of patient data … to third-party government agencies [is] subject to clear and consistent regulations and procedures.”

The brief points out that medical records should be protected because they can reveal potentially embarrassing and stigmatizing information about a patient. If patients do not feel that the information they share with their physician is protected, they may not share it at all, which could result in a misdiagnosis or the wrong course of treatment. In the worst case scenario, the patient may not seek medical care in the first place.

Read more at AMA Wire.

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Other News

How to find relief from prior authorization burden

Prior authorization (PA) always appears near the top of any list of administrative burdens and hassles facing physician practices. To help physicians and their staff navigate the challenges associated with PA, the AMA has released a new suite of PA resources. These resources:

Join the AMA for an informational webinar, “Break through the prior authorization roadblock,” at 1 p.m. Eastern time Dec. 9 to learn more about making PA less burdensome.

Register today for this free, open-access webinar to find out how practices can minimize the impact of this major administrative burden, and see the prior authorization toolkit for more information about the AMA’s efforts related to PA.

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Upcoming Events

Dec. 9: Webinar on minimizing prior authorization hassles
Join the AMA for a webinar, “Break through the prior authorization roadblock,” at 1 p.m. Eastern time. Register today to find out how practices can minimize the impact of this major administrative burden.

Jan. 7-9: State Legislative Strategy Conference
Don't miss the opportunity to meet colleagues from across the country and share ideas about the toughest state-level issues in health care today. Hosted by the AMA Advocacy Resource Center, the State Legislative Strategy Conference will cover telemedicine, opioids, state-based delivery and payment reform, provider networks and more. Learn more at the meeting Web page or email Wendy Holmes of the AMA with any questions.

Feb. 19-21: 2016 AMPAC Candidate Workshop
Sign up for the 2016 AMPAC Candidate Workshop, which prepares those considering a run for public office. For more information or to apply, please see the online registration form or email Jim Wilson of the AMA.

April 13-17: 2016 AMPAC Campaign School
Register for the 2016 AMPAC Campaign School, which is for AMA members who wish to become involved in the political process as advocates and volunteers for medicine-friendly candidates. For more information or to apply, please see the online registration form or email Jim Wilson of the AMA.

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