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Sept. 15, 2016

National Update

MACRA penalties can now be avoided, CMS says

Avoiding penalties under the Medicare Access and CHIP Reauthorization Act (MACRA) just got easier. The Centers for Medicare and Medicaid Services (CMS) Acting Administrator Andy Slavitt today announced that the final MACRA regulation will exempt physicians from any risk of penalties if they choose one of three distinct reporting options in 2017.

In a blog post, Slavitt announced that CMS heard physicians' concerns about the proposed start date for performance reporting under the new Medicare payment system and that the agency will offer three reporting options for the Merit-based Incentive Payment System (MIPS)—and if you choose one for 2017, you will not receive a negative payment adjustment in 2019.

The options will be described fully in the final rule, but here are the basics:

Choosing any of these three options guarantees that you will not receive a negative payment adjustment.

The announcement confirms that physician input is playing a critical role in the development of the final MACRA rule. Slavitt stated his appreciation for the constructive participation of physicians in the feedback process and added that CMS looks forward to further engagement with physicians to make sure the new Medicare payment system works for everyone, including patients.

"By adopting this thoughtful and flexible approach, the Administration is encouraging a successful transition to the new law by offering physicians options for participating in MACRA," said AMA President Andrew W. Gurman, MD, in a statement commending Slavitt and Department of Health and Human Services Secretary Sylvia Mathews Burwell.

"This approach better reflects the diversity of medical practices throughout the country," he said. "The AMA believes the actions that the Administration announced today will help give physicians a fair shot in the first year of MACRA implementation."

This kind of flexibility is what physicians were seeking throughout the draft rule comment period—and now it is a reality. The only way to receive a negative payment adjustment now is by not participating at all.

In OPPS proposed rule, the AMA applauds certain provisions and seeks changes in others

The AMA recently submitted comments to the Centers for Medicare and Medicaid Services (CMS) on the 2017 Hospital Outpatient Prospective Payment System and Ambulatory Surgical Center Payment System proposed rule.

A number of the policies in this rule take steps to address issues of longstanding concern to the AMA. Specifically these proposals include:

There are also policies included in the proposed rule that concern the AMA. These include:

AMA provides input on opioid prescriber education

As one part of its effort to end the epidemic of opioid overdose deaths, the White House recently invited comments on a number of questions regarding expanding efforts to educate physicians and others who prescribe opioid analgesics.

The AMA's response noted that the professional educational needs of practicing physicians vary by specialty and practice and that better linkages could help physicians identify the educational programs that are most focused on and relevant to their patient populations.

The AMA also suggested that physician actions such as co-prescribing naloxone to prevent overdose deaths, becoming certified to provide medication-assisted treatment with buprenorphine, and taking education to achieve competence in safe opioid prescribing could potentially qualify as Clinical Practice Improvement Activities in the Merit-based Incentive Payment System.

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Issue Spotlight

Medicare fee schedule proposed rule needs work

The AMA recently submitted comments to the Centers for Medicare and Medicaid Services (CMS) on the agency's proposed rule to revise the Medicare Physician Fee Schedule and Part B. Some of the provisions align with physicians' previous recommendations while others will require some changes, especially those that mean more costs for patients and undercut the Medicare Access and CHIP Reauthorization Act (MACRA).

Three of the proposed policies that the AMA recommended changes to include:

The letter submitted to CMS also detailed several areas where physicians were in agreement with the proposal, including:

Read more at AMA Wire.

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State Update

Anthem-Cigna deal is bad medicine

In a recent hearing before New York State Department of Financial Services, representatives of the AMA and Medical Society of the State of New York (MSSNY) advised state insurance regulators to reject a deal proposed by Anthem, parent of Empire Blue Cross/Blue Shield, to acquire rival Cigna.

The physician organizations warned that the pending blockbuster merger is bad medicine for New York State that threatens health care access, quality and affordability. Physician representatives warned that the proposed merger amounts to a grab at anticompetitive market power that would quash competition in several of the state's health insurance markets.

Read the full press release and visit the AMA's web page (log in) about the health insurer mergers for additional details. If you would like to request permission to access the website, please email Kai Sternstein of the AMA.

Physician progress in reversing nation's opioid epidemic

While much more work remains to reverse the nation's opioid epidemic, using tools such as prescription drug monitoring programs (PDMP), medication-assisted treatment and naloxone, physicians are making progress. A new fact sheet provides some evidence of that progress on a number of fronts.

The AMA and many medical and other health care organizations last October joined President Obama in Charleston, W.Va., to commit to clear metrics to reduce the nation's opioid epidemic. The AMA clearly recognizes that more work remains to reduce opioid-related mortality and ensure access to care for patients in pain and who have a substance use disorder.

In a fact sheet released by the AMA, physicians' progress to reverse the nation's opioid epidemic was quantified showing new trends in the use of available tools:

For any questions regarding these signs of progress, please contact Daniel Blaney-Koen of the AMA.

Ohio proposal to overhaul Medicaid expansion denied

Ohio Medicaid in June submitted a Section 1115 Demonstration waiver proposal to the Centers for Medicare and Medicaid Services (CMS) to redesign the state's Medicaid expansion program. Among other things, the program, called Healthy Ohio, would require all "newly eligible" adult Medicaid enrollees, as well as some low-income parents, foster care youth, and beneficiaries with breast and cervical cancer to pay monthly fees into health savings accounts.

CMS on Sept. 9 denied the state's waiver request citing concerns that the monthly financial obligation would undermine access to coverage and affordability of care. CMS also stated that the plan to exclude individuals indefinitely until debts are paid is inconsistent with the objectives of the Medicaid program.

Ohio estimated that over 125,000 people would likely lose coverage each year for non-payment. If approved, Ohio would have been the first state permitted to disenroll beneficiaries living below the poverty line—$11,880 for an individual—for failing to pay a monthly fee or premium.  

For more information on state Medicaid activity, please contact Annalia Michelman of the AMA.

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Judicial Update

Peer-review confidentiality critical, but under threat

Without confidentiality, the peer-review process cannot be an effective tool for improving quality of care. A case before the Supreme Court of Pennsylvania could establish rules that narrow the scope of peer-review protected materials, harming the process.

At stake in Reginelli v. Boggs, is whether the Pennsylvania Peer Review Protection Act (PRPA) privilege against legal discovery should apply when an independent contractor of a hospital reviewed the performance of a physician on the hospital's medical staff.

How the situation unfolded
Eleanor Reginelli presented to the emergency department at Monongahela Valley Hospital (MVH) with chest and back pains. Marcellus Boggs, MD, an emergency medicine physician at MVH, ordered and interpreted the results of an electrocardiogram and blood work. He diagnosed Mrs. Reginelli with gastro-esophageal reflux disease and discharged her that day.

Five days later, Mrs. Reginelli experienced the same symptoms. An ambulance transported her to the emergency department of a different hospital where she was told she was experiencing a heart attack. She subsequently suffered permanent heart damage.

Dr. Boggs was an employee of Emergency Resource Management, Inc. (ERMI), which had been hired as an independent contractor to staff MVH's emergency department. Mrs. Reginelli and her husband sued Dr. Boggs, MVH and ERMI for medical liability.

As part of discovery in the case, the plaintiffs deposed Brenda Walther, MD, the medical director of the MVH emergency department and an ERMI employee. Dr. Walther disclosed that she maintained a performance file on Dr. Boggs, which included peer-review evaluation required by ERMI.

The plaintiffs called on MVH to produce the evaluation file, but MVH objected based on a claim of peer-review privilege in the PRPA. The trial court ordered production of the file, finding that MVH could not claim privilege for a document it had neither generated nor maintained. On appeal, the Pennsylvania Superior Court affirmed and the case is now on appeal before the Pennsylvania Supreme Court.

An agreement for unity in providing quality care
A 2010 "Emergency Department Services Agreement" outlined the relationship and respective duties between MVH and ERMI, noting that the hospital wished to have ERMI provide certain services to facilitate the operation of the emergency department, including the provision of qualified emergency medicine physicians.

The agreement also included materials on quality improvement and peer-review. ERMI was to conduct clinical reviews and provide regular reports to the hospital for its peer-review process. Hospitals commonly use independent contractors to fulfill staffing needs, and those employees then become members of the hospital staff as well as the contractor.

"Peer review is an important tool in improving the quality of health care," said the Litigation Center of the AMA and State Medical Societies in an amicus brief defending the PRPA. "The willingness to criticize peers that an effective review process requires cannot occur without ironclad confidentiality."

"Here, the medical director of a hospital emergency department reviewed treatment records of a department physician," the brief said. "That is the paradigm for protected activity under the Peer Review Protection Act."

Read more at AMA Wire.

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Other News

ICD-10 grace period to expire Oct. 1

The Centers for Medicare & Medicaid Services (CMS) announced that the ICD-10 grace period, which began in October of last year, will expire on Oct. 1. The grace period was the result of AMA efforts to work with CMS to help ease physicians' transition from ICD-9 to ICD-10.

During the grace period, Medicare claims were not denied solely on the specificity of the ICD-10 diagnosis code, as long as the physician submitted an ICD-10 code from an appropriate family of codes. In addition, during the grace period Medicare claims were not audited based on the specificity of diagnosis codes if the code was from the appropriate family.

The AMA will monitor the transition and apprise CMS of any issues that emerge as a result of the ICD-10 grace period ending. For additional resources, visit CMS' ICD-10 webpage or AMA's ICD-10 resources.

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