January 21, 2016
National UpdateNew guidance on patient access to health records issued
The U.S. Department of Health and Human Services Office for Civil Rights (OCR) released new guidance that specifies requirements for individuals’ access to their health information under the Health Insurance Portability and Accountability Act (HIPAA). HIPAA’s Privacy Rule generally requires covered entities to provide patients, upon request and in a format requested by the patient, with access to any health records about them that the covered entity maintains in a designated record set.
The guidance clarifies the parameters of the patient access rule and includes frequently asked questions that specifically address the following:
- The scope of information covered by HIPAA’s access right and the very limited exceptions to this right
- The form and format in which information is provided to individuals
- The requirement to provide access to patients in a timely manner
- The intersection of HIPAA’s right of access with the requirements for patient access under the Health Information Technology for Economic and Clinical Health (HITECH) Act’s electronic health record (EHR) incentive program
The AMA has advocated for more clarity on how HIPAA relates to physicians and their patients. The OCR noted this is the first set in a new series of guidance material intended to better educate physicians and patients about their rights and responsibilities. The AMA also offers toolkits on related aspects of HIPAA, including the requirements pertaining to privacy and security.Comments on Medicaid access rule submitted to CMS
The AMA recently submitted comments (log in) on the Centers for Medicare & Medicaid Services’ (CMS) final rule with comment period and request for information (RFI) on ensuring access to Medicaid services.
The long-awaited final rule outlines a standardized and data-driven process for states to document compliance with the so-called “equal access requirement” of federal Medicaid law, which requires payment rates to be set at sufficient levels to enlist enough physicians and other health care providers to serve the Medicaid population. Through the RFI, CMS also sought information about additional measures, metrics and methods that could be used to measure access to care across Medicaid delivery systems.
“We commend CMS for recognizing the impact that physician payment rates have on access to care,” AMA Executive Vice President and CEO James L. Madara, MD, wrote to CMS’ acting administrator. “The rule represents an important step toward ensuring state accountability and, ultimately, sufficient access to quality services for Medicaid beneficiaries.”
Additionally, the comments state that the AMA:
- Supports CMS’ effort to create a standardized and transparent process for states to measure access to care but urges CMS to develop a national framework with specific, mandatory metrics
- Supports strict federal oversight to ensure that states are setting and maintaining their Medicaid rate structures at levels sufficient to allow Medicaid patients access to necessary services in a timely manner
- Recommends CMS create an administrative pathway for physicians and other providers to challenge, directly to CMS, payment methodologies that violate the equal access requirement
Issue SpotlightCMS chief vows to establish better meaningful use policy
Centers for Medicare & Medicaid Services (CMS) Acting Administrator Andy Slavitt earlier this month said that the agency is changing its culture to focus more on listening to physician needs and giving them the freedom they need to keep patients at the center of the practice of medicine.
Regaining physicians’ trust
“The day-to-day work of CMS at this point in time is to start up new consumer- and provider-facing capabilities, and then scale them, nurture and mature them,” Slavitt said during a panel at the 34th annual J.P. Morgan Healthcare Conference in San Francisco. “It demands that we change our culture and execute with clarity, with discipline and with collaboration. Things we haven’t always been known for.”
“We have to get the hearts and minds of the physicians back because these are the people that our beneficiaries and consumers count on every day,” he said. “And I think we lost them.”
Referring to execution of the electronic health record (EHR) meaningful use program, Slavitt noted that the agency’s previous regulatory approach created difficulties. “When in doubt, I think, do less and figure it out. … I remind people all the time that good ideas piled on top of other good ideas become bad ideas pretty quickly because they sink under their own weight.”
Instead, Slavitt said he views the agency’s role in setting policy and acting as a regulator as a two-way street. “Here our most important job is to listen and learn,” he said. “Policy is often a blunt instrument, and in the real world, it takes continual adjusting.”
The recent ICD-10 transition is evidence of how this collaborative approach can work well. Listening to physician needs, CMS adopted AMA recommendations to make implementation of the new code set less disruptive for their practices.
Slavitt now is turning his attention to a critical issue that has plagued the nation’s physicians for the past several years.
The start of something new
While the meaningful use program still exists, it will be replaced with the new Merit-Based Incentive Payment System (MIPS), called for in the Medicare Access and CHIP Reauthorization Act of 2015. MIPS is intended to sunset meaningful use, the Physician Quality Reporting System and the value-based payment modifier and streamline them into a single program.
“The stakes are high for this program,” Slavitt said. “As any physician will tell you, physician burden and frustration levels are real. Programs designed to improve often distract. Done poorly, measures are divorced from how physicians practice and add to the cynicism that the people who build these programs just don’t get it.”
“At its core, we need to simplify,” he said. “That program needs to be streamlined and simple to use so physicians can focus where they need to—on their patients.”
Importantly, Slavitt noted that they are taking an “outside-in” approach to designing this program. “Since late last year, we have been working side by side with physician organizations across many communities—including with great advocacy from the AMA—and have listened to the needs and concerns of many,” he said.
Over the coming months, CMS will be proposing changes for elements of meaningful use that will be incorporated within the new MIPS program. The AMA will remain heavily engaged with the agency to secure the necessary changes that would significantly ease the burden of meaningful use as it currently exists.
In November, the AMA and 100 state and specialty medical associations submitted 10 principles to guide the foundation of the MIPS, and provided detailed comments (log in) as part of its ongoing efforts on this issue. The AMA also continues to drive home the message that the problems inherent in the meaningful use program must not be adopted into the MIPS. To that end, the AMA last month submitted a detailed framework for what needs to change.
“Administrator Slavitt acknowledged the frustration of physicians attempting to comply with the meaningful use regulations and pledged to work collaboratively with physicians to replace the program with a more effective alternative,” said AMA CEO and Executive Vice President James L. Madara, MD. “His leadership is a model for how Washington should work. He listened to working physicians who said the meaningful use program made them choose between following byzantine technological requirements and spending more time with their patients. This is a win for patients, physicians and common sense.”
Slavitt said several themes will be guiding implementation of the new system:
- Emphasis will be placed on outcomes. “The focus will move away from rewarding providers for the use of technology and towards the outcome they achieve with their patients,” Slavitt said.
- Health IT will be about physician needs. “Providers will be able to customize their goals so tech companies can build around the individual practice needs, not the needs of the government,” he said. “Technology must be user-centered and support physicians, not distract them.”
- Vendors will need to unlock data. Slavitt said requirements will be put in place to “allow apps, analytic tools and connected technologies to get data in and out of an EHR securely.”
- Vendors will need to make health IT interoperable. “We are deadly serious about interoperability,” he said. “We will begin initiatives in collaboration with physicians and consumers toward pointing technology to fill critical use cases like closing referral loops and engaging patients in their care.”
“The AMA will continue to work with CMS and the Administration on moving to a new framework for EHRs,” Dr. Madara said. “Physicians are at the front lines of these programs, and their insights should guide how the regulations are written and implemented.”Back to Top
State UpdateLouisiana first state in 2016 to expand Medicaid
On his second day in office, Louisiana Governor John Bel Edwards signed an executive order to expand Medicaid eligibility. The move will provide health care coverage to an estimated 300,000 low-income Louisiana residents, effective July 1. Including Louisiana, 31 states and the District of Columbia have expanded Medicaid since the Affordable Care Act became law.
The AMA continues to work with state and specialty medical societies at the state level to expand Medicaid eligibility for individuals currently in the coverage gap. Visit the AMA Advocacy Resource Center Medicaid expansion campaign Web page or contact Annalia Michelman of the AMA for more information.
Two-thirds of physicians who treat substance use disorder say that they could treat more patients, but federal law prevents them from doing so, according to a new survey from the American Society of Addiction Medicine (ASAM). The law allows physicians with a waiver to prescribe buprenorphine for up to 100 patients. Both the AMA and the ASAM have advocated for increasing the 100-patient limit.
In addition to their federal advocacy, the AMA and the ASAM continue to encourage states to introduce legislation that would help increase access to treatment of all medication assisted treatment (MAT) for substance use disorder.
An AMA model bill, among other things, would allow states to:
- Require health insurers to include and cover all U.S. Food and Drug Administration- (FDA) approved MAT medications and services in their formulary
- Require Medicaid agencies to include and cover all FDA-approved MAT medications and services in their preferred drug lists
- Require MAT medications and services for use in drug courts and other diversion programs
- Not be limited by a patient’s prior successes or failures of the services provided
In a recent letter (log in), the AMA urged New Jersey Governor Chris Christie to sign legislation that would raise the minimum age for purchasing tobacco and electronic smoking devices from 19 to 21 years. The bill, AB 3254/SB 602, also would raise the minimum age of a person to whom a vendor may sell, offer for sale, distribute, give or furnish such products in New Jersey from 19 to 21 years.
Tobacco use remains the No. 1 cause of preventable death in the United States. Epidemiologic evidence shows that nearly 90 percent of adults who smoke on a daily basis had their first cigarette by age 18, and 90 percent of cigarettes purchased for use by those under age 18 are purchased by those aged 18 to 20.
Recently, the Institute of Medicine concluded that raising the tobacco age to 21 would significantly reduce smoking among youth and young adults; reduce smoking-caused deaths; and immediately improve the health of youth, young adults and young mothers who would be dissuaded from smoking.
The report predicts that raising the minimum age for the sale of tobacco products to 21 would over time reduce the smoking rate by about 12 percent and smoking-related deaths by 10 percent. That translates into 223,000 fewer premature deaths, 50,000 fewer deaths from lung cancer and 4.2 million fewer years of life lost.
If Gov. Christie signs the legislation, New Jersey will join Hawaii as the only states that prohibit the sale of tobacco products to persons under 21.
For more information, contact Carrie Armour of the AMA.
“The medical loss ratio (MLR) is working to protect patients—just as Congress and the National Association of Insurance Commissioners (NAIC) intended,” wrote AMA Executive Vice President and CEO James L. Madara, MD in a letter (log in) to the NAIC.
The NAIC, which in December held a hearing to consider changing the definition of “quality improvement activities” (QIA), has been under pressure by insurers to expand the definition of “quality” to include, among other things, fraud and detection activities and other expenses not related to medical care. The AMA and NAIC consumer representatives oppose such an expansion. Rather, the AMA urged, the NAIC to review all of the current expenses submitted by insurers as “quality” expenses to determine whether they truly are QIA as defined by the law.
Initial AMA analysis raised questions to the NAIC that activities such as prior authorization, overhead allocation and other activities may not qualify, but that further investigation would be needed to effectively review the relationship between the activity and the intent of the NAIC and U.S. Department of Health and Human Services.
Judicial UpdateCourt case could increase liability exposure, redefine injury
A state supreme court is set to determine whether “loss of chance” for a better outcome should be recognized as a legal injury in medical liability lawsuits—which could leave physicians exposed to increased liability.
The details of the case
At stake in Smith v. Providence Health Services is whether or not the Oregon Supreme Court should redefine what constitutes an injury legally to include the lost possibility of a better outcome, known in legal terms as the “loss of chance” doctrine. Existing law does not include loss of chance as grounds for medical liability. The case is an attempt to expand the definition of injury—one that would open the door for speculation.
The patient in this case presented at a hospital emergency room, where the physicians failed to diagnose a stroke and discharged him. As it turned out, the patient did have a stroke and suffered significant permanent injuries. The missed opportunity for proper diagnosis led the patient to file a lawsuit, claiming a loss of chance for a better outcome. At the same time, even the patient admitted that he would probably have suffered the same injuries had he been properly diagnosed.
Decision could put physicians at risk
If the “loss of chance” doctrine is recognized by the court, it could lead to significantly greater and uncontrollable liability exposure for physicians.
The Litigation Center of the AMA and State Medical Societies filed an amicus brief, arguing that recognizing the loss of chance doctrine in the same way as a more definitive injury could single out physicians for a “unique and consequential form of new professional … liability.”
Read more at AMA Wire®.
Other News3 traits of successful payment models
New payment models can help physicians overcome the barriers of current payment systems so they can provide high-quality patient care at lower costs while securing the sustainability of their practices.
The AMA worked with Harold Miller at the Center for Healthcare Quality and Payment Reform, a member of the newly appointed Physician-Focused Payment Models Technical Advisory Committee to the federal government, to develop the “Guide to physician-focused alternative payment models.”
The guide, in addition to describing seven physician-focused alternative payment models and barriers in current payment systems, highlights the three characteristics of a successful payment model:
- Flexibility in care delivery. The design of an alternative payment model should focus on giving physicians sufficient flexibility to deliver the services their individual patients need in the most effective way possible.
For example, if a physician performs a specific service and the current payment system does not pay for that service, an important element of the alternative payment model that physician adopts would be for that model to enable payment for additional services, broaden the definition of the services that will be covered or both.
- Adequacy and predictability of payment. A crucial component to any practice is the ability to plan for the future. An alternative payment model must provide adequate and predictable resources to enable physicians to cover the costs of high-quality care.
If physicians cannot predict how much they will be paid for their services, it becomes nearly impossible to make investments in equipment and recruit, train and retain the personnel needed to provide the best care for their patients.
- Accountability only for costs and quality that physicians can control. An alternative payment model should be designed to support better quality and lower spending for the specific services that physicians deliver or order. The model should not hold physicians accountable for aspects of spending and quality that they can’t control.
Learn more at AMA Wire.Back to Top
Feb. 19–21: 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, see the online registration form or email Jim Wilson of the AMA.
Feb. 22–24: National Advocacy Conference
Join the AMA in Washington, D.C., at the 2016 National Advocacy Conference, which empowers physicians to advocate for patients, the medical profession and the future of health care. Register today.
March 20–22: AMA-MGMA Collaborate in Practice Meeting
Join the AMA and MGMA in Colorado Springs to gather leadership techniques to help propel you and your organization to future success. Former U.S. Sen. Bill Bradley, D-NJ, and Richard Deem, AMA senior vice president of advocacy, will speak on leadership and the changing health care landscape. Register online, and receive a discount when you register two or more of your team members.
April 13–17: 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, see the online registration form or email Jim Wilson of the AMA.