June 9, 2016

National Update

AMA urges increased access to treatment for opioid use disorder

The Substance Abuse and Mental Health Services Administration (SAMHSA) recently released a proposal to increase the number of patients a physician can treat with buprenorphine for opioid use disorder to 200 from the current limit of 100.

In its comments to SAMHSA, the AMA applauded the administration's effort to improve patients' access to comprehensive treatment in physicians' offices. But the AMA also expressed concern that the SAMHSA proposal will not be sufficient to close the widening gap between the estimated 2.5 million patients who need treatment for opioid use disorder and the fraction of that number who currently have access.

The letter outlined concerns about the lack of payment models to support comprehensive treatment, urging the agency to broaden its definition of physicians eligible for the higher patient caps and to help provide access to new formulations of buprenorphine as they are developed.

Interoperability should be more than "digital faxing"

The AMA and 36 specialty medical associations urged the administration to rethink the way it measures the interoperability of electronic health records (EHR).

On June 3, a coalition of physician and medical organizations sent a sign-on letter to the Centers for Medicare & Medicaid Services (CMS) and the Office of the National Coordinator for Health Information Technology (ONC), asking that both agencies rethink the measures physicians must meet in the upcoming replacement for the EHR Meaningful Use program—now called Advancing Care Information.

Measures that only serve to count each "click" a physician makes detract from patient care. Health IT vendors are closely following federal reporting requirements when designing EHRs—often at the expense of software functionality or meaningful information exchange. The AMA will continue to work with both CMS and ONC to establish the right balance between federal program requirements and flexibility to enable innovation in the EHR market.

VA proposes independent nursing practice to reduce wait times

The Veterans Health Administration (VA) last month published a proposed rule that would give full practice authority to four categories of advanced practice registered nurses (APRN): certified nurse practitioner, certified registered nurse anesthetist, clinical nurse specialist and certified nurse-midwife.

"While the AMA supports the VA in addressing the challenges that exist within the VA health system," said AMA Board Chair Stephen R. Permut, MD, in a press release. "We believe that providing physician-led, patient-centered, team-based patient care is the best approach to improving quality care for our country's veterans. We feel this proposal will significantly undermine the delivery of care within the VA." 

The proposed rule defines "full practice authority" as an APRN working within the scope of VA employment who is authorized to provide services without the clinical oversight of a physician, regardless of state or local law restrictions on that authority. Federal preemption will be used to side-step state medical licensure laws so that APRNs who work for the VA will have full practice authority within the VA.

The AMA will submit comments opposing the VA proposed rule and urges members of the Federation to do the same. The deadline to submit comments on the proposed rule is July 25.

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Issue Spotlight

Missouri says no to insurer merger

The prospect of the Aetna-Humana acquisition last month received a major blow when the Missouri Department of Insurance issued an order preventing the companies from doing any post-merger business in Missouri's Medicare Advantage markets and some commercial insurance markets.

"Aetna produced no evidence that any efficiencies produced by the merger would outweigh the anticompetitive effects of the merger in Missouri," said John M. Huff, Missouri director of insurance, in the order. Should the acquisition "eventually be consummated … Aetna Inc. and all of its subsidiaries, and Humana Inc. and all of its subsidiaries, shall cease and desist from doing business in the counties of Missouri."

"The AMA strongly applauds Missouri regulators for taking the right approach to prevent the proposed acquisition of Humana by rival Aetna from creating anticompetitive market power that would have threatened Missouri's health care delivery system," said AMA President Steven J. Stack, MD, in a news release.

The Missouri order strongly validates concerns that the AMA has expressed to Missouri regulators, as well as the U.S. Department of Justice, and officials in other states impacted by the proposed health insurer mergers.

The order concludes that Aetna's acquisition of Humana would lessen competition, given a number of factors:

Missouri regulators took the notable step of recognizing Medicare Advantage as a relevant product market, bucking opposing pressure from Aetna. In Missouri, the merger would have substantially compromised competition in the state's Medicare Advantage markets with negative consequences for elderly patients in the need for health care access, quality and affordability.

According to a recent AMA analysis (log in) of Medicare Advantage markets, Missouri was expected to be among the states where the Aetna-Humana deal would be presumed to be anticompetitive.

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Judicial Update

Court decides on medical liability protections

The Supreme Court of California recently considered a case that could reduce important medical liability protections for physicians under the seminal Medical Injury Compensation Reform Act (MICRA).

What was at stake
Under deliberation in Winn v. Pioneer Medical Group was whether a claim based on medical negligence committed against an elderly patient could give rise to action under the California Elder Abuse Act. Such an approach would avoid protections allowed in medical negligence cases under MICRA, California's historic tort reform law, which keeps liability insurance premiums low and places a $250,000 cap on noneconomic damages in medical liability lawsuits to ensure patients in the state have access to affordable health care.

An elderly patient with peripheral vascular disease was treated over a period of time by Pioneer Medical Group, and the condition steadily worsened until she died in 2010. The plaintiffs alleged that Pioneer Medical Group violated the Elder Abuse Act by failing to provide the patient with proper care by not referring her to a specialist.

Following lower court decisions that called into question whether the case was of professional negligence or reckless neglect, the case moved to the state supreme court. Professional negligence does not fall under the Elder Abuse Act, which specifically states that professional negligence should be governed by laws that apply to professional negligence—in this case, MICRA. A lower court held that if the conduct of a physician amounted to reckless neglect, then the Elder Abuse Act would apply.

As defined by MICRA, professional negligence includes any negligent act, or failure to act, by a physician in the rendering of professional services. The Elder Abuse Act's definition of reckless neglect focuses on the failure to provide medical care at all and specifically excludes professional negligence.

The Litigation Center of the AMA and State Medical Societies joined the California Medical Association and several others in an amicus brief (log in) supporting Pioneer Medical Group in 2013. "The [lower court] decision fails to recognize the critical and necessary difference between reckless neglect and professional negligence," the brief said. "As a result, it interprets the Elder Abuse Act in a way that fundamentally conflicts with MICRA."

"Clarification by this court is needed to make clear that reckless neglect elder abuse and professional negligence are indeed mutually exclusive," the brief said, calling for appeal.

The court's decision
In order for the Elder Abuse Act to apply, the physician must to have had a relationship with the patient that involved specific caretaking responsibilities. The act defines "caretaker" as a "person who has the care, custody or control of … an elder or dependent adult." Because the patient was treated in an outpatient facility and not in a nursing home or resident health care facility, the act does not apply.

The state supreme court decision stated that the Elder Abuse Act "does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient."

Rather, the decision said, it is the nature of the relationship between physician and patient—not the physician's professional standing—that makes the physician potentially liable for neglect.

"Plaintiffs cannot bring a claim of neglect under the Elder Abuse Act unless the defendant health care provider has a caretaking or custodial relationship with the elder," the court said.

This decision reverses the Court of Appeal decision and upholds the critical protections offered physicians within MICRA.

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Other News

New AMA analysis of the use of transitional care management in the Medicare program

A new AMA analysis (log in) summarizes the use of transitional care services that Medicare began covering in 2013.

The analysis, "Early results on the use of transitional care management in Medicare," also looks at whether use of these services was associated with lower rates of hospital readmission and emergency department visits.

2016 PQRS group practice reporting option open until June 30

Practices consisting of two or more eligible professionals (EP) that would like to participate in 2016 Physician Quality Reporting System (PQRS) under the group practice reporting option (GPRO) have until June 30 to register as a GPRO. Practices with two or more EPs do not have to participate in PQRS as a GPRO and may participate as individuals in the program—individual participation may be a better option for certain practices.

Upon GPRO registration, a practice must indicate whether it plans to participate in PQRS under the following options:

If a practice would like to participate as a GPRO and submit data via its EHR, it is highly recommended that the practice consult with its EHR vendor before registration as there are some that will not support the PQRS GPRO EHR option, only the individual PQRS EHR option.

Qualified Clinical Data Registry participants should also check with their vendor to determine if they will support the GPRO option. The AMA recommends that all practices considering GPRO in 2016 weigh all their options because practices cannot change their GPRO designation with CMS once the registration period closes. Physicians who are participating in PQRS as an individual do not need to register.

The registration system can be accessed using a valid Enterprise Identify Management (EIDM) account. Instructions for obtaining an EIDM account with the correct role are provided on the PQRS GPRO Registration Web page. Instructions for registering to participate in the 2016 PQRS GPRO are provided in the 2016 PQRS GPRO registration guide.

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