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July 21, 2016

National Update

3 useful changes to Meaningful Use

The Centers for Medicare & Medicaid Services (CMS) has proposed changes to the Meaningful Use program that are intended to relieve physician reporting burdens. Those changes include reducing the 2016 reporting period to 90 days.

Based on feedback from the health care community, the proposed changes "better support physicians in providing beneficiaries with the right care at the right time," CMS Acting Administrator Andy Slavitt said in a press release. These changes were detailed in the 2017 Hospital Outpatient Prospective Payment System (OPPS) proposed rule released last week.

What changed?
The AMA continues to drive home the message that the current problems of the Meaningful Use program must not be carried forward—and the changes recently proposed in the OPPS to Meaningful Use are a good start.

Physicians around the country are  hopeful that CMS will also further reduce burdens under Medicare's Merit-based Incentive Payment System (MIPS) when the Medicare Access and CHIP Reauthorization Act (MACRA) final rule is released in the fall.

Here are three key changes to Meaningful Use in the proposed rule:

For more information on these proposed changes, take a look at the OPPS proposed rule fact sheet from CMS.

Later start date could ease transition to new Medicare system

Testifying before the U.S. Committee on Finance, Centers for Medicare & Medicaid Services (CMS) Acting Administrator Andy Slavitt acknowledged concerns about physician readiness for implementation of the new Medicare payment system. 

"We need to launch this program so that it begins on the right foot, and that means that every physician in the country needs to feel like they're set up for success," Slavitt said. "We remain open to multiple approaches. Some of the things … that we're considering include alternative start dates, looking at whether shorter periods could be used and finding other ways for physicians to get experience with the program before the impact of it really hits them."

CMS issued the Medicare Access and CHIP Reauthorization Act (MACRA) proposed rule earlier this year. The current start date for the new program is Jan. 1, 2017. In comments sent to CMS on the MACRA proposed rule, the AMA recommended starting the program on July 1, 2017, to provide additional time between the issuance of the MACRA final rule and the start of the reporting period.

The final rule is expected in late October or early November, leaving physicians with just two months to prepare for and implement the most significant change to the Medicare payment system in more than two decades if the current implementation date stays in place. That's clearly an inadequate amount of time for such major changes.

Learn more about how a later implementation date and transition period would help and what the AMA told CMS in its formal comments on the rule: Read more at AMA Wire®.

Opioid bill to be signed into law

The U.S. Senate on July 13 adopted the conference report to accompany the Comprehensive Addiction and Recovery Act (CARA)(S. 524), by a vote of 92-2, clearing the measure for the president's signature. The U.S. House of Representatives had previously adopted the conference report by a vote of 407-5.

The final version of CARA authorizes numerous grant programs focused on prevention of opioid addiction, alternatives to incarceration, increasing the availability of naloxone, supporting prescription drug monitoring programs (PDMP), promoting medication-assisted therapy and expanding drug take-back programs.

The legislation also included other AMA-supported proposals, such as the reauthorization of the National All Schedules Prescription Electronic Reporting Act, which supports state PDMP programs, and allowing partial fills of Schedule II drugs. While not every provision of CARA had the support of organized medicine, the AMA urged the bill's adoption as an important step forward in addressing the epidemic of opioid abuse.

While the legislation authorizes hundreds of millions of dollars in funding for these programs, Congress must still appropriate the funds in order to fulfill the promise of CARA. The AMA will continue to urge Congress to take this critical next step when members return from an extended summer recess.

Congressional recess begins without Zika action

Prior to recessing for the summer, Congress failed to provide critically needed funding to address the threat of the Zika virus. The U.S. House of Representatives has passed funding for public health, mosquito abatement, vaccine research and other Zika-related activities, though the measure was not able to garner the necessary support to pass the U.S. Senate prior to adjournment.

Democrats have objected to provisions in the proposal that offset the new spending through cuts to other programs as well as to limitations on the use of the funds that exclude Planned Parenthood clinics in Puerto Rico. Republicans in turn have urged the transfer of unobligated funding that was intended to address the Ebola epidemic as an alternative to new funding and have questioned the relatively slow pace of the distribution of funds that have already been identified to support Zika-related activities.

Given this impasse, no new funding to address Zika will be made available prior to the return of Congress after Labor Day.

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Issue Spotlight

DOJ, states side with patients and physicians—file to block insurance mergers

An AMA Viewpoints post by AMA President Andrew W. Gurman, MD

Prospects for major health insurance consolidation took a major hit when the U.S. Department of Justice (DOJ) and a number of states filed antitrust lawsuits Thursday to block both the Aetna, Inc.-Humana, Inc. and Anthem, Inc.-Cigna Corp. mergers. The DOJ asserted that the mergers would substantially lessen competition.

When something comes up that could negatively affect our patients and the quality and affordability of the care they receive, physicians take the lead and engage policymakers. With the same drive that put us through late nights in med school, carried us through the intensity of our residencies and continues to push us every day to go the extra mile for our patients and their families, we took these mergers on—and our voices were heard.

Creating even larger goliaths would be unacceptable—and I said so in a public statement today. Federal and state officials have a strong obligation to enforce antitrust laws to protect patients by ensuring a competitive marketplace that operates in patients' best interests.

The DOJ's action is a significant step toward the kind of marketplace that doesn't put the insurers first but rather puts patients first. And that's what we as physicians care about most.

Physicians fight to protect patients
Both mergers were announced in July of last year. My colleague, Immediate-past President, Steven J. Stack, MD, responded swiftly with a statement detailing how the mergers would increase health insurance market concentration and reduce competition in both the market for the sale of health insurance and in the market in which health insurers purchase physician services, ultimately resulting in further patient injury due to a decrease in the quality and quantity of available physician services. Neither development is something we as physicians can allow.

At the outset of the DOJ and state investigation of these mergers, the AMA was armed by our annual market studies on competition in health insurance and by an AMA study published in a leading academic journal establishing that a previous merger—United Health Group Inc.'s 2008 merger with Sierra health services—resulted in higher premiums.

Over the course of the next year, we physicians took it upon ourselves to stand up against the mergers of these powerful insurers by submitting testimony in congressional and state proceedings and preparing memoranda to state and federal officials investigating the mergers. In this effort, the AMA joined with state medical societies and gained the assistance of influential lawyers and economists to gather the evidence and present the arguments against the mergers to the DOJ, state attorneys general and state insurance departments.

I testified at a congressional hearing examining the proposed mergers and the impact they would have on competition in September, urging them to closely scrutinize the mergers and utilize enforcement tools at their disposal to protect patients and preserve competition.

Two weeks before, my colleague, Barbara L. McAneny, MD, who is a member of the AMA board of trustees, testified before Congress with a similar message. Together, we carried that message into the 2015 AMA Interim Meeting, where the AMA House of Delegates passed new policy that emphasized the need for active opposition to consolidation in the health insurance industry that could result in anticompetitive markets.

In December, the AMA identified the "big 17"—states where the mergers would have the greatest impact—and formed a coalition to block the mergers. A survey was developed relating to the monopsony issues raised by the proposed mergers and sent out to physicians in those states. Physician feedback was included as the big 17 coalition drafted letters sent to the DOJ.

What's important is that the medical community came together under this coalition, not with the intention of fighting the goliath companies that would be formed by the mergers, but rather to prevent them from happening. The physician voice is stronger when we can all come together under the same leadership.

As the letters were drafted and sent, we continued to lay on the pressure and the argument of the coalition became stronger and harder to refute.

Last month, the California Department of Insurance issued a letter urging the DOJ to block the Anthem-Cigna merger. The insurance commissioner based this conclusion on a March 29 public hearing that included testimony and written comments from the public, patient advocates, experts on health insurance mergers, and both the AMA and the California Medical Association (CMA).

Jointly with the CMA, we filed a comprehensive, evidence-based analysis (log in) explaining why the merger should be blocked. At the hearing, our top antitrust attorney, testified that the consequences of the proposed merger would have long-term consequences for health care access, quality and affordability.

Similarly, Missouri, with our input, took a hard stand against Aetna's acquisition of Humana in May when the Missouri Department of Insurance issued a cease-and-desist order preventing the companies from doing any post-merger business in Missouri's Medicare Advantage markets and some commercial insurance markets.

All of these efforts raised awareness and ultimately led to this moment today—on the cusp of a win for our patients.

Today's news is especially gratifying. The DOJ /State suit against Anthem-CIGNA incorporates the AMA's concerns that the merger would result in a health insurer buyer "monopsony" power over the physician marketplace. The suit against Aetna adopts the AMA's long-held and strenuously argued view that Medicare Advantage is a separate market that would suffer antitrust injury by the proposed Aetna-Humana merger. Finally, the AMA is thankful the state Attorneys General, like Florida, who listened to the physicians' concerns and joined the lawsuits.

The fight isn't over yet
A merger of this magnitude would compromise physicians' ability to advocate for their patients—something we consider an integral part of our place in society. In practice, market power allows insurers to exert control over clinical decisions, which undermines our relationships with patients and eliminates crucial safeguards of patient care.

On the other hand, competition can lower health insurance premiums, enrich customer service and spur inventive ways to improve quality and lower costs. Patients benefit when they can choose from many different insurers that are competing for their business by offering coverage that patients want and at competitive prices.

The suit filed by the DOJ is not the end—yet. Both companies have stated that they plan to fight the battle in court and challenge the DOJ lawsuit. The AMA will remain engaged in this process and relentless in our quest to preserve competition in the health insurance marketplace.

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State Update

Prior authorization legislation enacted in Delaware

Last week, Gov. Markell, D-Del., signed into law prior authorization legislation from the Medical Society of Delaware, which was based on an AMA model bill. The new law requires standard notification requirements and timelines for responses to pre-authorizations, and prevents retroactive denials after care is delivered.

The law also requires extensive reporting on prior authorization statistics to a public database in Delaware. That data will likely prove invaluable as medicine and other stakeholders look to study the impact and utility of prior authorization.

Contact Emily Carroll of the AMA to learn more.

Pennsylvania's PDMP to go live next month

Physicians, pharmacists and other health care professionals in Pennsylvania will finally have access to a new state prescription drug monitoring program (PDMP) starting Aug. 25, according the state department of health. The PDMP previously was only accessible by law enforcement, but Act 191, enacted in 2014, greatly expanded the program.

Among the new requirements for the PDMP, physicians and other prescribers will be required to access the PDMP in two circumstances:

The law also grants delegates access to the PDMP and requires pharmacies to input data within 72 hours of dispensing a controlled substance. There are several exceptions to the PDMP mandate, including for:

The Pennsylvania Medical Society (PAMED) has created many resources about Act 191 and related issues, including PAMED's Quick Consult publication "Pennsylvania's prescription drug monitoring program—information for prescribers" and PAMED's initiative, "Be Smart. Be Safe. Be Sure."

Washington physicians and hospitals launch opioid task force

The Washington State Medical Association (WSMA) and the Washington State Hospital Association (WSHA) recently launched a joint task force to develop solutions to address the growing opioid epidemic, with an eye toward ways physicians and hospitals can play a more active role in tackling this issue.

"As physicians, we recognize the medical profession must take a leading role in reversing the potential crisis facing our state and nation," said Ray Hsiao, MD, WSMA president and child psychiatrist and addiction specialist at Seattle Children's Hospital. "We see firsthand the terrible toll these drugs can take on patients and their families, and we want to work with others who are committed to identifying and implementing effective solutions."

Three physicians representing the WSMA, including Dr. Hsiao, will join the chief medical officers from the Olympic Medical Center in Port Angeles, the University of Washington Medical Center in Seattle, and the pharmacy director at Sacred Heart Medical Center in Spokane.

"I am pleased to see the Washington State Medical Association and Hospital Association step up to partner with the state, public health and law enforcement to lead the charge and help end this epidemic in our state," said Washington state Gov. Jay Inslee.

Read more about the task force.

New Mexico's medical community urges buprenorphine waiver training

The New Mexico Medical Society and the American Academy of Addiction Psychiatry have teamed up to offer all New Mexico physicians, residents, physician assistants and nurse practitioners free buprenorphine waiver training.

The effort, which includes a 4-hour online portion combined with a 4-hour face-to-face course, also is being sponsored by Project ECHO, the New Mexico Hispanic Medical Association, the New Mexico Society of Addiction Medicine and the New Mexico Hospital Association.

"This training will not simply allow more patients to receive treatment for a substance use disorder,"said AMA Immediate Past President Steven J. Stack, MD, when the effort was announced in April, "it will save lives and help patients return to a functional life with their friends and family."

Learn more about the event.

AMA Board of Trustees approves MOC model bill

In June, the AMA Board of Trustees approved model state legislation intended to address concerns about application of maintenance of certification (MOC) programs to maintenance of licensure (MOL) requirements.

The bill, which is on file with the AMA Advocacy Resource Center, prohibits a state licensing board from requiring a physician to maintain specialty certification before it issues or renews a license. In addition to easing concerns about links between MOC and MOL, this or similar language has had the added benefit of confirming that the Interstate Medical Licensure Compact does not require MOC, allowing compact legislation to move forward in states where MOC concerns had previously prevented such legislation from passing.

Contact Kristin Schleiter of the AMA to learn more.

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Judicial Update

What Supreme Court ruling on admissions means for med schools

The Supreme Court of the United States has made a ruling in a case considering race as one factor in academic admission, which allows medical schools to create a more racially and ethnically diverse physician workforce that more closely reflects the patient population and can combat racial disparities in health outcomes.

Where the case began and its result
In Fisher v. University of Texas at Austin, Abigail Fisher, a white applicant, was rejected from the University of Texas undergraduate college and sued the university, asserting that the school preferred African-American students over whites and that she would have been accepted if racial preferences were not in place.

In 2013, the Supreme Court held that the University of Texas could potentially use racial preferences in its admission decisions under limited circumstances, known as "strict scrutiny." The Supreme Court remanded the case to the court of appeals for determination of whether the university's racial preferences met the strict scrutiny standard.

On remand, the court of appeals confirmed its earlier ruling, which had approved the racial preferences. The latest Supreme Court ruling affirmed the court of appeals application of the strict scrutiny standard to the University of Texas admission policies.

"The goal of increasing medical career opportunities for minorities is an important step in developing a diverse physician workforce that will help bridge the gap in racial health disparities," said Andrew W. Gurman, MD, AMA president. "The AMA supports efforts to bring an end to any inequalities in health care."

Read more at AMA Wire.

Court case examines telemedicine safety regulations

A case before a United States Court of Appeals could restrict a state medical board from protecting patient safety through the regulation of telemedicine in that state.

At stake in Teladoc, Inc. v. Texas Medical Board is whether the Texas Medical Board has demonstrated immunity from federal antitrust laws. 

The Court of Appeals is being asked to determine whether the board may be held liable under the antitrust laws for its rule requiring a "defined physician-patient relationship to exist before a physician may prescribe dangerous or addictive medications. The necessary relationship is defined as established through either an in-person examination or an examination by electronic means with a health care professional present with the patient.

Teladoc, which uses telecommunications to connect patients and physicians, provides services in a way that would allow physicians to prescribe medications without the establishment of the required patient-physician relationship. Teladoc alleges that if the Board's rule is valid, Teladoc would be limited in the way it could carry on business in Texas. It contends that this rule is anticompetitive and seeks to hold the Board liable under federal antitrust laws.

Telemedicine is advancing rapidly as a tool to improve access to care and reduce the growth in health care spending. Last month the AMA House of Delegates adopted new ethical ground rules for telemedicine. But the telemedicine standards of care and practice guidelines are constantly evolving and vary based on specialty and the services provided. It is important that state medical boards remain free to regulate the practice of medicine to ensure patient safety and appropriate prescribing.

"Telemedicine offers significant potential benefits to patients, including expanded access to medical care," the Litigation Center of the AMA and State Medical Societies said in an amicus brief (log in). "At the same time, telemedicine is inappropriate for certain medical conditions, and it carries risks. Because a physician treating a patient remotely may be called upon to act with limited information, the quality of care may suffer, and a potential exists for fraud and abuse."

"Given the complex and evolving state of telemedicine," the brief said, "Texas' balance of reliance on the expert board to act in the first instance, with state supervision as needed, is entirely appropriate—and should not be subject to second-guessing under the federal antitrust laws."

Read more at AMA Wire.

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Other News

HHS Office of Civil Rights issues new ransomware guidance

In light of recent FBI guidance and media reports of increasing cyberattacks on health IT systems, the U.S. Department of Health and Human Services Office of Civil Rights (OCR) has released new guidance on ransomware.

The new guidance reinforces activities required by the Health Insurance Portability and Accountability Act (HIPAA) that can help organizations prevent, detect, contain and respond to threats, including:

The guidance makes clear that a ransomware attack usually results in a "breach" of health care information under the HIPAA Breach Notification Rule. Under the rule, and as noted in the guidance, entities experiencing a breach of unsecure PHI must notify individuals whose information is involved in the breach, HHS and in some cases the media, unless the entity can demonstrate and document that there is a "low probability" that the information was compromised.

The AMA is preparing a series of cybersecurity resources for physicians, which will be available on its new cybersecurity web page. The page currently contains information about steps physicians can take today to improve their cybersecurity practices.

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