Sept. 1, 2016

National Update

Congress returns with many issues to tackle

Congress will reconvene next week following a seven-week summer recess—and there is much work to be done. Though scheduled to be in session for four weeks before recessing again until after the election, there is speculation that even this abbreviated schedule could be cut short.

Before Oct. 1, Congress must pass several bills to fund federal agencies or, more likely, enact a temporary continuing resolution to extend government funding until after the election.

Among the top appropriations-related priorities for medicine is the need to provide funds to address the opioid crisis and the Zika virus outbreak. While Congress has been quick to publicize passage of the Comprehensive Addiction and Recovery Act earlier in the summer, none of the newly authorized programs in the bill will receive funding until separate appropriations legislation is enacted.

Congress must also return to consideration of legislation to provide support for public health efforts to address the Zika threat, including support for prevention, mosquito control and vaccine research and development.

In addition to appropriations work, Congress is also likely to face renewed efforts to force action on legislation to address gun violence, such as closing loopholes in the current background check system. Additionally, while the House of Representatives acted to make important reforms to the mental health system, legislation remains pending in the Senate. The AMA continues to urge Congress to act promptly on these and other matters.

HHS urged to resolve the Medicare appeal backlog

In response to a proposed rule released by HHS in late June, the AMA sent a letter (log in) urging the U.S. Department of Health and Human Services (HHS) to address and eliminate the unacceptable backlog of Medicare appeals, and cautioned against making the appeals process less accessible as a "quick fix" to a problem rooted in the very nature of the Recovery Auditor contractor program.

The AMA advocates for robust measures to address the underlying problem, including: 

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Issue Spotlight

Surgeon General physician mailing on opioid misuse

Check your mailbox over the next two weeks—there should be a letter from U.S. Surgeon General Vivek H. Murthy, MD, calling on all physicians throughout the nation to raise awareness and further efforts to end the opioid misuse epidemic.

Physicians are in a unique position of leadership when it comes to this epidemic—they are on the front lines witnessing the impact every day from emergency department overdoses to substance use disorder treatment. The letter asks directly for physicians' help to solve and bring an end to the opioid misuse epidemic.

"We will educate ourselves to treat pain safely and effectively," Dr. Murthy said in the letter, suggesting physicians examine the many resources from the Centers for Disease Control and Prevention Guideline.

"We will screen our patients for opioid use disorder and provide or connect them with evidence based treatment," he said. "We can shape how the rest of the country sees addiction by talking about and treating it as a chronic illness, not a moral failing."

Awareness can make a difference
This style of raising awareness has worked before. In 1988, U.S. Surgeon General C. Everett Koop, MD, sent a seven-page brochure, "Understanding AIDS," to all 107 million households in the country. The mailing raised awareness that the AIDS epidemic affected every one and not just a small group of Americans. The opioid epidemic the country now faces similarly affects those of all ages, races and economic status.

Dr. Murthy earlier this month launched, where physicians can take a pledge and make a commitment to end the opioid crisis.

"Years from now, I want us to look back and know that, in the face of a crisis that threatened our nation, it was our profession that stepped up and led the way," he said in the letter.

Physician efforts already underway
Steven J. Stack, MD, AMA immediate-past president, in May issued an open letter to America's physicians calling on them to take re-examine prescribing practices and help reverse the epidemic. "We must accept and embrace our professional responsibility to treat our patients' pain without worsening the current crisis," he said.

The AMA Task Force to Reduce Prescription Opioid Abuse has been working to raise awareness of the crisis for almost two years. The task force put forth recommendations for physicians to register for an use state prescription drug monitoring programs, educate themselves on pain management and safe prescribing, support increased access to naloxone, reduce the stigma of substance use disorder and enhance access to comprehensive treatment.

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State Update

Enhanced interactive tool helps health care providers identify underserved areas

The distribution of the health care workforce has major implications for residents, physicians, advocates, policymakers and, of course, patients. An updated mapping tool can help physicians better grasp that distribution and how it relates to population health and professional opportunities.

The AMA Health Workforce Mapper Version 2.0 is a customizable, interactive tool that illustrates the geographic distribution of the health care workforce. Users can filter physician and non-physician health care professionals by specialty and employment setting at the state, county and metropolitan levels.

In addition to illustrating the geographic locations of the health care work force in each state, the tool now provides population health data by geographic location. The new "Population Health Explorer" feature offers data on a variety of population health factors, including health care access and quality, health behaviors such as smoking and alcohol use, demographics, and social environment factors.

The AMA Health Workforce Mapper was developed in collaboration with the American Academy of Family Physicians Robert Graham Center and HealthLandscape, and it was funded by the AMA Scope of Practice Partnership. For more information about the mapper, contact Kristin Schleiter of the AMA.

Kentucky, Indiana governors seek changes to Medicaid expansion programs

Last week, Kentucky Governor Matt Bevin submitted a Section 1115 Demonstration waiver proposal to overhaul the state's Medicaid expansion program. The most controversial measures in the proposal remain, including classifying dental and vision care as "enhanced" benefits only covered for Medicaid beneficiaries who complete certain wellness activities.

The proposal also includes higher cost sharing and a requirement that able-bodied adults participate in 20 hours of weekly community engagement, such as volunteer or job search activities.

In response to criticism received during the state's public comment period, Gov. Bevin's administration made some changes: Retaining coverage of allergy testing and private-duty nursing services, exempting medically frail beneficiaries from cost sharing and expanding the list of activities that qualify as community engagement.

Indiana Governor Mike Pence has requested continuation of a temporary waiver of coverage for non-emergency medical transportation (NEMT) in Indiana's Medicaid expansion program, known as HIP 2.0. As part of the existing program, Indiana was required to study and report on the impact of eliminating coverage of NEMT.

The state reported that only a small number of Medicaid beneficiaries missed appointments due to transportation issues. Also in Indiana, the Centers for Medicare & Medicaid Services has denied the state's request to implement a six month "lock out" period for Medicaid beneficiaries who do not complete an annual redetermination process. The lock out period would have eliminated coverage for an estimated 19,000 beneficiaries.

For more information on the AMA's advocacy activities related to Medicaid expansion, contact the AMA Advocacy Resource Center.

New prescription drug monitoring program goes live in Massachusetts

Physicians in Massachusetts have a new prescription drug monitoring prpgram (PDMP) that seeks to provide improved features and functionality. These features include an improved user-friendly interface and faster access to data and reports, interoperability with other states' PDMPs, integration and compatibility with Commonwealth health providers' electronic medical record systems and more. The Massachusetts PDMP is called MassPAT.

"Physicians have been urging improvements to the monitoring program for some time, and Governor Baker and the Department of Public Health have delivered," said James S. Gessner, MD, president of the Massachusetts Medical Society (MMS). "Substantial resources have been invested to improve the system, to make it easier for physicians to use and to access more information more quickly. It is now incumbent on physicians and all prescribers to participate."

"We applaud MMS for working closely with state leaders to ensure MassPAT has the tools physicians need to help address the opioid crisis," said AMA President Andrew W. Gurman, MD. "This partnership between physician leaders and policymakers builds on progress that already has resulted in a shrinking number of prescriptions being issued in the Bay State. Signing up for the new PDMP—and learning to fully use the tool to make more informed prescribing practices—is a critical step each physician can take to fight this scourge."

Massachusetts prescribers seeking to prescribe a Schedule II or III narcotic medication or a benzodiazepine to a patient for the first time must research that patient's prescribing history in MassPAT. Beginning Oct. 15, all prescribers will need to query MassPAT prior to issuing every Schedule II or III narcotic medication. There are limited exceptions to the mandatory query for some medical conditions.

The new PDMP also allows prescribers to designate delegates to use the system on their behalf and allows medical residents to register and obtain access to MassPAT.  

For questions about MassPAT, please contact the MMS's Brendan Abel.

New AMA resource ensures appropriate regulatory oversight of licensing boards

The AMA Advocacy Resource Center has developed a legislative template to help guide advocacy efforts intended to ensure appropriate regulatory oversight of licensing boards following the Supreme Court's decision in Federal Trade Commission v. North Carolina State Board of Dental Examiners.

The Dental Board ruling provides that licensing boards on which a controlling number of members are members of the profession regulated must be actively supervised by the state to ensure immunity from federal antitrust liability.

The ARC is interested in working with any medical association engaged in advocacy on this issue. Please contact Kristin Schleiter to discuss further or for access to this new AMA resource.

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Judicial Update

Liability suit seeks change to informed consent

A case before the Supreme Court of Pennsylvania could have major implications on how physicians obtain informed consent prior to a surgery.

At stake in Shinal v. Toms, is whether a patient's informed consent to surgery can be predicated on information provided in part by a physician's assistant, as opposed to just the physician. Both the Medical Care Availability and Reduction of Error Act (MCARE) and common law have made it the physician's duty to see that the proper information is conveyed, but the question is whether delegating tasks to qualified professionals is also within the bounds of the law and common medical practice.

How the case unfolded
In 2004, Megan Shinal underwent surgery to remove a tumor, but it regrew and by 2008 she was experiencing severe headaches and was referred to Steven A. Toms, MD, for a second surgery.

This type of surgery—the removal of a craniopharyngioma, a very serious and recurrent rumor located deep in the base of the brain—is one of the most complex surgeries in all of neurosurgery. For this reason, there were numerous important surgical decisions to be made, some by the surgeon and some collaboratively with the patient.

The major decisions were which of two surgical approaches to take—through the nose and the sphenoid bone, or through the skull—and whether to remove the entire tumor or leave a portion of the tumor in place. Removing the entire tumor usually produces a better long-term outcome, but involves more surgical risk. One of those risks is a potential rupture of the carotid artery, which can cause serious injuries. Yet, the alternative to surgery would be to accept disability and then death as near inevitable outcomes.

Dr. Toms testified that he and Ms. Shinal discussed this issue at length and that she had agreed that he would determine during the surgery whether he should remove the entire tumor.

The complaint filed by Ms. Shinal and her husband at first included a detailed negligence claim, but this theory was abandoned before trial. Instead, the plaintiffs asserted that Dr. Toms had not advised of the risk of damage nor adequately explained the risks and complications associated with the surgical approach, particularly the risks and benefits of a total vs. partial tumor removal.

They asserted that, because Dr. Toms' physician assistant had provided the information to inform the consent, and not Dr. Toms himself, Mrs. Shinal had not been adequately informed and did not provide consent.

What has been provided, not who provided it
Informed consent doctrine has focused on providing the patient with appropriate information to make a knowledgeable decision to proceed or to forgo surgery. Neither common law nor statute has prescribed who must provide the information.

The record reflected that Dr. Toms' staff had provided certain information to Ms. Shinal and the trial court properly instructed the jury to consider the testimony.

"Imposition of a duty is quite different from mandating that the physician provide all of the information," the Litigation Center of the AMA and State Medical Societies said in an amicus brief. "Physicians' delegation of some of their duties to other health care professionals while maintaining liability if those delegated services are not properly performed is commonplace."

"Surgeons may be the 'captain of the ship,' and liable for a crew member's errors, but they do not work alone and need not personally perform every task," the brief said. "The trend of delegating will only be more common in the future as medical care seeks greater efficiencies."

The brief asked the Court to affirm the decision that information relative to obtaining a patient's informed consent could be provided by qualified staff on behalf of the surgeon.

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Other News

How physicians can test payer compliance with HIPAA transaction regulations

In order to reduce administrative burdens and financial waste in the health care system, the Health Insurance Portability and Accountability Act (HIPAA) created standard electronic transactions for use in the exchange of information between providers and health plans.

Designed to eliminate idiosyncratic health plan transactions that caused inefficiencies and administrative hassles for providers, the HIPAA transactions streamline the manner in which the provider-related transactions are processed electronically. The Centers for Medicare & Medicaid Services (CMS) enforces adherence to the standard transaction provisions through a complaint-driven process. This process requires practices to identify and explain the health plan infraction, which can be cumbersome for offices without technological aptitude.

To help practices evaluate health plan transactional technical compliance, CMS recently updated its complaint resource by launching the Administrative Simplification Enforcement and Testing Tool (ASETT). ASETT enables physicians to test health plan systematic compliance with the HIPAA transactions.

While the testing resource does not screen for all compliance issues (i.e., testing would not identify non-systematic violations, such as health plans improperly charging fees for transactions), it provides CMS with extremely convincing evidence of any technical shortcomings. Additionally, the ASETT resource enables physicians to file a formal complaint against a health plan or transaction vendor.

For additional assistance in maximizing the effectiveness of the electronic transactions, physician practices can access the AMA resource, "Compliance in standard electronic transactions: Responsibilities of health plans and physicians" (log in), which details the general rights that apply to the HIPAA transactions, provides responsibilities created for each specific transaction, and details the methods in which physicians can seek enforcement of these regulations through the ASETT resource.

For additional information on standard electronic transactions and to access other administrative simplification resources, please visit the AMA Administrative Simplification Initiatives website.

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