March 12, 2020

Issue Spotlight

Emergency COVID-19 funding approved; CMS clarifies rules on coverage, payment

Congress approved a $8.3 billion emergency coronavirus response funding package last week. The package, which was signed into law by President Trump on March 6, includes:

This funding for vaccines, therapeutics, diagnostics and medical supplies is necessary to bolster the health care response to COVID-19.

The bill also authorizes the Secretary of Health and Human Services to waive Medicare restrictions on providing telehealth services to seniors during this public health emergency. The AMA strongly advocated for the inclusion of this provision arguing that the use of telehealth would be critical to help limit further exposure and help stop the spread of the virus in the health care setting as well as make sure seniors continue to have access to routine care doing the emergency.

In addition last week the Centers for Medicare & Medicaid Services (CMS) released a COVID-19 fact sheet to inform health care professionals and others about important Medicare coverage and payment information related to diagnosing and treating patients affected by the novel virus. (To keep up to date with what CMS is doing in response to COVID-19, please visit the CMS current emergencies website.)

The fact sheet indicates that:

To empower surveillance and laboratory testing in response to the spread of the novel coronavirus, the AMA announced a unique CPT® code for reporting novel coronavirus tests will be considered at a special CPT Editorial Panel meeting this week.

If approved, the new CPT code will support the response to the urgent public health need for streamlined reporting of novel coronavirus testing offered by hospitals, health systems and laboratories in the United States.

On a separate note, a malicious email phishing attack pretending to be the live map for COVID-19 Global Cases from John Hopkins University could pose a risk to physician cybersecurity. Learn more about this scam and protecting your practice against cyber security threats.

Since the beginning of the COVID-19 outbreak, the AMA has been providing physicians with the latest clinical guidance from the CDC to help them evaluate, test and care for patients under investigation for COVID-19, as well as guidance to help protect physicians and other health care workers from illness.

The AMA will continue to keep physicians informed of the CDC's resources and updates, including on the AMA's COVID-19 online resource center, the Physician's Guide to COVID-19 and via social media and direct communications. Additionally, the AMA's JAMA Network has a comprehensive overview of the coronavirus—including epidemiology, infection control and prevention recommendations—available for free on its JN Learning website.

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National Update

AMA reviewing interoperability rules to determine patient focus, privacy issues

Since last year's release of proposed rules from the Office of the National Coordinator (ONC) and CMS implementing the 21st Century Cures Act's provisions on information blocking and interoperability, the AMA has engaged regularly with policymakers to refine the proposals so they meet the needs of patients and physicians.

"The AMA has been advocating on behalf of physicians and patients for over 10 years to ensure electronic health record (EHR) usability, interoperability, and patient data and safety are top concerns when government agencies develop new policies," said AMA President Patrice A. Harris, MD, MA. "We applied this knowledge and momentum as we worked with CMS and ONC in anticipation of [the] release of the final rule. AMA is reviewing the new rules, paying special attention to policies aimed at creating efficiencies in data exchange, reduction in physician burden, and patient control over and access to their data."

The AMA will be looking particularly in the following areas.

  • Privacy controls that require apps to be transparent about what data is being collected and how the app developers intend to use it, and security safeguards for patients using apps to access health information  
  • Rules that prohibit vendors from charging excessive fees, including "gag clauses" that prevent physicians from publicizing problems with their EHRs  
  • A usage-based fee structure to limit EHR vendor fees and prevent physicians from incurring costs for exchanging health data that complies with federal requirements  
  • Programming tools to improve physician and patient access to health information  
  • More stringent requirements on EHR testing and usability 
  • Limiting unnecessary and inappropriate access to EHR data from insurers and other non-clinical entities 
  • More clarity and a reduction in the complexity of information blocking exceptions for physicians 
  • Less aggressive and separate EHR implementation timelines for vendors and physicians 

In the coming weeks, the AMA will undertake aggressive action to provide physicians and patients with resources to help understand how these new regulations will affect their medical practices and care, reduce confusion around state and federal regulations on data access and EHR interoperability, and timelines of when to expect updates to EHR products and vendor contracts.  

HHS releases federal strategy to reduce burden

The 21st Century Cures Act requires the Department of Health and Human Services (HHS) to create a strategy to address specific sources of physician burden by coordinating a public and private stakeholder effort to reduce burden associated with health care administration and use of health information technology (health IT), including EHRs.

The AMA provided comments on HHS' draft report in early 2019 and is encouraged by the breadth of HHS' recently released final report. The AMA has identified several areas where health IT and administrative burden impact physicians and patient care. HHS acknowledged many of the AMA's concerns and incorporated several of the recommendations made. The strategies outlined in the report paint a general picture of where HHS' policies should be modified or refocused. HHS also recognizes engagement with the physician community will continue to be a critical factor in success. AMA views the overall strategies as a signal to physicians, patients and Congress of HHS' commitment to coordinate across agencies and act expeditiously to reduce regulatory complexity and physician burden.

The AMA will continue to work with HHS to address physician burden and looks forward to assisting in their strategic approach.

House passes legislation banning flavored tobacco and e-cigarettes

The House passed sweeping legislation to curb flavored tobacco and e-cigarettes on Feb. 28. The AMA successfully urged House members to vote in favor of H.R. 2339, the Protecting American Lungs and Reversing the Youth Tobacco Epidemic Act of 2020, which ultimately passed by a vote of 213-195.

The legislation, sponsored by Representatives Frank Pallone (D-NJ), Chairman of the House Energy and Commerce Committee, and Donna Shalala (D-FL), would impose a variety of restrictions on tobacco and e-cigarette products. The bill would remove all flavored e-cigarettes from the market and only permit them to return if the manufacturer demonstrates that the product helps current tobacco users stop smoking, would not lead non-tobacco users to start and would not increase the risk of harm from using the product. All other flavored tobacco products, including menthol cigarettes, would be made illegal.

H.R. 2339 also includes provisions that would: 

  • Ban online tobacco product sales, with the exception of certain high-end cigars
  • Increase tobacco user fees as well as allowing them to be assessed on e-cigarettes
  • Provide the Federal Trade Commission the authority to enforce the ban on marketing or promoting e-cigarette use among people under age 21
  • Levy an excise tax on e-cigarettes and use the corresponding revenue toward providing colorectal cancer screenings for Medicare users
  • Require high deductible plans to cover inhalers for people with chronic lung disease

While H.R. 2339 is unlikely to advance in the Senate this year, the AMA will continue to work with others in the physician and public health community to build support for its eventual passage.

AMA weighs in on the FDA Office of Minority Health and Health Equity strategic priorities

The AMA recently submitted detailed comments to the Food and Drug Administration's (FDA) call for input on their Office of Minority Health and Health Equity's (OMHHE) strategic direction. The FDA OMHHE is tasked with promoting and protecting the health of diverse populations through research and communication of science that addresses health disparities and health equity. While OMHHE has in the past focused primarily on communications efforts, as well as work around diversity and inclusion in clinical trials, it is seeking to broaden its impact and work in this space with help from stakeholders to identify additional areas within FDA's work where more of an impact can be made.

The AMA's comments urged FDA to focus on three key areas for growth and improvement: research and innovation, health literacy education and community engagement, and public health workforce development. AMA comments were provided in conjunction with the AMA's new Center for Health Equity, which will work to elevate the importance and sustainability of the AMA's health equity efforts.

AMA provides comment on FDA drug importation proposals

The AMA recently submitted comments to the FDA on two proposals aimed at creating pathways for importation of prescription drugs. The first proposal seeks to allow drug manufacturers a pathway to bring their drug products marked for distribution in foreign markets back to the United States under new National Drug Codes (NDC), allowing them to potentially be sold at lower list prices than those currently designated for distribution within the U.S. The second proposal would potentially allow for the creation of state-based programs that could seek to import prescription drugs from Canadian suppliers.

AMA policy supports drug importation as a method of lowering drug prices, so long as the safety, quality, integrity and authenticity of those drug products can be assured. AMA comments did, however, raise concerns about consistent application of safety standards across potentially numerous state-based programs. The AMA also stressed that any savings generated by importation of prescription drugs must be passed to patients and not otherwise absorbed by the drug supply chain, which is seen as a high risk under both proposals.

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State Update

Maine voters uphold vaccination law

On Nov. 3, voters in Maine overwhelmingly voted to uphold a 2019 law that eliminated all non-medical exemptions for required school and health care employment vaccines. Opponents of the law sought to overturn it via a "people's veto" referendum. The referendum was defeated soundly with approximately 73% of voters supporting the law. The AMA and Maine Medical Association (MMA) strongly supported the "Vote No" campaign. 

In a joint op-ed published in the Portland Press Herald, AMA President Patrice Harris, MD, and MMA President Amy Madden, MD, said, "Extensive medical and scientific research has proven that vaccines are safe and effective compared to the high rates of serious complications and death that result from the diseases they are designed to prevent: polio, meningitis, measles, tetanus, diphtheria, mumps, rubella, chickenpox and whooping cough. These complications far outweigh the very rare side effects of vaccines."

For additional information about vaccination laws in your state, please contact the Advocacy Resource Center.

Virginia becomes 20th state to ban conversion therapy

On March 2, Virginia Governor Ralph Northam signed into law a bill that prohibits the practice of conversion therapy on minors. Virginia is the 20th state to enact such a ban.

"Conversion therapy" refers to any form of interventions which attempt to change an individual's sexual orientation, sexual behaviors, gender identity or gender expression. Underlying the practice is the harmful assumption that homosexuality and gender dysphoria are mental disorders that should be treated. Evidence has shown it is a coercive practice that may cause long-term psychological harm, particularly to young patients.

The AMA opposes the use of conversion therapy. Under the new law, licensed health care professionals are prohibited from engaging in sexual orientation and gender identity change efforts with a patient less than 18 years of age. The prohibition does not apply to interventions that facilitate coping, support, or identity exploration and development or address unlawful conduct or unsafe sexual practices. 

For more information about AMA advocacy for the LGBTQ community, visit the AMA website.

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Judicial Update

AMA-brokered deal secures coverage for Hahnemann residents, fellows

Residents and fellows affected by last year's record-breaking closure of Philadelphia's Hahnemann University Hospital liken the highly disruptive experience to a nightmare.

First they went through the turmoil of searching for and switching to new training positions elsewhere in the City of Brotherly Love and throughout the country. Then came the news that the 1,400-plus residents, fellows and Hahnemann training alumni would soon be left without the long-tail medical liability insurance coverage they needed to continue practice.

Randol Hooper, MD, a pulmonology and critical care fellow formerly of Hahnemann and now training at Temple Health in Philadelphia, received annual premium quotes for long-tail coverage that were as high as $30,000. Yet even quotes in the four-digit range were out of the question financially.

"It was a substantial amount of money to come up with that I don't have, and pretty much every other Hahnemann resident I know is in the same position," Dr. Hooper said.

Now at least one part of the Hahnemann closure-related nightmare has ended.

A federal bankruptcy judge has approved a settlement with Hahnemann's owners to pay for the long-tail coverage. The AMA is underwriting legal representation of the orphaned residents and fellows in the case.

The settlement, approved in Chapter 11 proceedings in the U.S. Bankruptcy Court for the District of Delaware, also will provide the legally required coverage for the 100 attending physicians who lost their jobs when Hahnemann closed in the summer of 2019. Legal representation on behalf of displaced residents and fellows in the case is being conducted by

Jeremy Ryan and the firm of Potter Anderson & Corroon.

"I am thrilled with how the AMA has handled this," Dr. Hooper said. "They acted decisively in the direct interest of physicians who were in distress. You can't ask for more than that."

Read the full story here.

Ruling threatens essential physician attorney-client privilege

In an era when a rising number of physicians are employed by companies affiliated with hospitals, a court ruling in Washington state threatens to upend the important guarantee of privileged conversations between physicians and hospital attorneys.

If a lower-court decision is allowed to stand, physicians and their employers would not be able to enter a joint defense agreement with the hospital where they practice. Additionally, hospital attorneys would be unable to have any contact with physicians whose conduct is at the center of a case unless opposing counsel is in the room.

The decision by the Court of Appeals would have "a serious negative impact" on physicians and hospitals, argues an amicus brief filed in the Washington Supreme Court by the Litigation Center of the American Medical Association and State Medical Societies, the Washington State Medical Association and the Washington State Hospital Association.

The brief urges the court to overturn the Washington Court of Appeals ruling in Hermanson v. MultiCare Health System that would take away the attorney-client privileged communication, also known as "ex parte."

"In the health care setting, many hospitals and health systems in Washington employ physicians through separate but affiliated entities. Most often these affiliated physician groups receive legal services from the same lawyers who advise the hospital or system. They may also have the same insurance," the AMA Litigation Center brief explains.

The appellate court decision allows "plaintiffs to name hospitals as the sole defendant and thereby to preclude the involved parties from effectively defending themselves," the brief says.

Find out more about the cases in which the AMA Litigation Center is providing assistance and learn about the Litigation Center's case-selection criteria.

Read the full story here.

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Other News

Better feedback needed on MIPS cost measures

The AMA urged CMS to better inform and educate physicians about how they are evaluated on the 20 new and revised cost measures in the Merit-based Incentive Payment System (MIPS). The AMA appreciates the effort that CMS has invested in creating a process that allows for significant clinical input in the design of cost measures but is concerned that many physicians may not understand how they are being evaluated on their claims data in the cost category because they do not choose which cost measures they are being evaluated on, nor do they affirmatively report data to CMS about these measures. The AMA recommended CMS make cost measure benchmarks and patient attribution information available on a rolling basis, improve field testing of new measures, provide interactive and affordable ways for physicians to analyze their feedback reports, and review data to ensure these new measures are valid. Timely and detailed aggregate data is critical for physicians and specialty societies to identify opportunities to improve quality and reduce costs via the new MIPS Value Pathways.

The AMA reiterated opposition to including Medicare Part D prescription drug costs in the measures. The addition of medication costs would penalize physicians for something over which they have no control and would add a lot of complexity to the measures at a time when they are still new and not well understood.

Upcoming Events

Register today for the Rx Drug Abuse and Heroin Summit

April 13-16: The Rx Drug Abuse & Heroin Summit is the largest and most-recognized conference committed to addressing the opioid crisis. Government officials, first responders, law enforcement personnel, clinicians, physicians, nurses, educators, public health and prevention officials and families and people in recovery are represented. The conference agenda is designed with timely and relevant information to address what is working in prevention, treatment and law enforcement. This year's summit will take place in Nashville, TN.

Register today.

Arizona physicians encouraged to attend opioid education session

April 18: The Arizona Medical Association is encouraging all of its physicians to attend a new opioid education session: The Opioid Epidemic: Practical Resources and Risk Management. The session will go beyond a typical "pain CME" to address topics such as medical malpractice liability implications as well as current issues regarding the Arizona Medical Board.

The session also will provide best practices for pain management and non-opioid pain care alternatives, as well as an update on Arizona data and regulations.

The course also provides 3.5 AMA PRA Category 1 Credits, which will satisfy Arizona's opioid education requirement. Arizona physicians can register here.

Bellin Health and AMA lead team-based care camp

April 20-22: Join Bellin Health and the American Medical Association at Lambeau Field for hands-on training camp on how to implement effective team-based care practices and protocols that work for physicians, staff and improve patient care.

One-of-a-kind interactive session experts will provide training on how to plan and implement team-based patient care in primary and specialty care, specifically addressing behavioral health and social determinants of health in your practice.

To register or learn more click here.

Attend the International Conference on Physician Health

Sept. 14-16: The International Conference on Physician Health (ICPH), which is being hosted by the American Medical Association, British Medical Association and the Canadian Medical Association, is being held at the IET London: Savoy Place in London, England.

Email with any questions or requests for further information.

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