June 19, 2020
Issue SpotlightAMA affirms its commitment to defending LGBTQ+ rights
The month of June is celebrated as Pride month for members of the LGBTQ+ community and the AMA celebrates with our LGBTQ members and patients by affirming our continued commitment to the equal rights, privileges and freedoms of all individuals and opposing discrimination based on sex, sexual orientation or gender identity. Discrimination reinforces stigma and negatively affects health outcomes, and physicians must be at the forefront of ensuring optimal health for all patients.
The AMA has advocated to ban the practice of so-called "conversion therapy", a harmful practice which attempts to change an individual's sexual orientation, sexual behavior or gender identity. The practice of pathologizing and "changing" sexual orientation or gender identity is not supported by scientific evidence. To the contrary, evidence has shown that "conversion therapy" is harmful, contributing to increased suicidal behaviors and psychological distress. With AMA support, 20 states have banned so-called "conversion therapy" for minors, with Utah and Virginia banning it this year.
Transgender patients often face discrimination when seeking medically necessary health care services that affirm gender or treat gender dysphoria. As a population, transgender individuals are less likely to be insured and even when they are insured, are often denied coverage for gender-affirming care such as hormones and transition-related surgery. Improving access to gender-affirming care is an important means of improving health outcomes for the transgender population and the AMA supports public and private health insurance coverage for treatment of dysphoria and opposes the denial of health insurance based on sexual orientation or gender identity. Earlier this year the AMA partnered with the South Dakota State Medical Association to defeat a bill that would have criminalized the provision of medically necessary gender transition-related care to minor patients.
When litigation is necessary, the AMA has enlisted the help of its Litigation Center to defend LGBTQ+ rights. Recent cases where the AMA Litigation Center filed "friend of the court briefs" include:
- Bostock v. Clayton County; Zarda v. Altitude Express; Harris Funeral Homes v. EEOC – Three U.S. Supreme Court cases, which were consolidated to determine whether employees can sue for employment discrimination on the basis of sexual orientation or gender status. The Supreme Court ruled, 6-3, on June 16, 2020 in favor of protections for LGBTQ+ workers.
- Doyle v. Hogan – AMA Litigation Center joined an amicus brief in support of Maryland's Conversion Therapy ban before the 4th Circuit Court of Appeals. The decision still pending.
- "Right to Refuse" or "Conscience Rule" Litigation in federal district courts in California, New York, Maryland, and Washington. The district courts returned favorable rulings out of the district courts in all but Maryland, where the case is still pending. The California, Washington, and New York cases are now on appeal in the 2nd and 9th Circuits, where we anticipate we will join as an amicus again.
- Keohane v. Florida Department of Corrections – Decided on March 11, 2020 by the 11th Circuit Court of Appeals, which found that refusing to provide treatment to an inmate with gender dysphoria was unconstitutional under the 8th Amendment's ban on cruel and unusual punishment.
- Edmo v. Idaho Dep't of Corrections - Decided on August 23, 2019 by the 9th Circuit, which upheld a preliminary injunction ordering gender confirmation surgery for an inmate.
- Gavin Grimm v. Gloucester County – AMA joined an amicus brief before the 4th Circuit in support of a high school student who challenged a school district's decision to deny the student access to the bathroom of his gender. Oral arguments were heard on May 26, 2020.
As physicians and leaders in medicine, the AMA is steadfast in its belief that every individual is entitled to high quality evidence-based medical care regardless of gender or sexual orientation and will continue to work diligently at the state and federal levels to expand access to medical services, reduce stigma for LGBTQ patients and break down discriminatory barriers to care.
While this week's U.S. Supreme Court ruling protects the LGBTQ+ community against discrimination in the workplace, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued a rule last week that removed protections that had banned health care providers and health plans from discriminating against LGBTQ patients, women and others.
This removal of equal access and health coverage protections will harm populations that are especially vulnerable to discrimination, such as LGBTQ individuals.
The AMA opposed the OCR rule when it was proposed last year and, again, noted its continued opposition when the final version was released last week.
"The federal government should never make it more difficult for individuals to access health care—during a pandemic or any other time," said AMA President Susan R. Bailey, MD.
The rule in question concerns Section 1557 of the Affordable Care Act (ACA) that was enacted in 2010. Section 1557 prohibits discrimination against individuals participating in an HHS-funded or administered program or receiving coverage from a health insurance marketplace plan.
The Obama administration issued a rule to implement Section 1557 in May 2016 that defined discrimination "on the basis of sex" to include discrimination based on sexual orientation, gender identity, and termination of a pregnancy—a position long-held by many federal agencies and courts, including the Supreme Court. The 2016 rule also included provisions for OCR to investigate complaints of such discrimination.
The rule took effect that July and has since been the subject of continuous litigation.
Read the full story here.
The AMA has heard from physicians who billed Medicare fee for service in 2019 and should have been eligible for a general distribution payment from the Coronavirus Aid, Relief, and Economic Security (CARES) Act Provider Relief Fund yet have not received a payment to date. In its updated Frequently Asked Questions document, HHS outlines a couple of explanations, including:
- If the physician's tax identification number (TIN) identifies both a social security number of an individual Medicare provider and another Medicare provider's employer identification number, or
- If there was incomplete banking information and/or personal contact information
At the AMA's urging, HHS is working to determine eligibility for a Provider Relief Fund grant for these physicians.
HHS also clarified that physicians who billed Medicare fee-for-service in 2019 were ineligible for provider relief funding include if they were:
- Terminated from participation in Medicare or precluded from receiving payment through Medicare Advantage or Part D
- Currently excluded from participation in Medicare, Medicaid and other federal health care programs
- Currently have Medicare billing privileges revoked as determined by either CMS or the HHS Office of Inspector General
The AMA partnered with the American Academy of Physical Medicine and Rehabilitation, which wrote this letter, and more than 120 state and specialty societies in opposing a Centers for Medicare & Medicaid Services (CMS) proposal to allow non-physician practitioners to perform certain duties that are currently required to be performed by a rehabilitation physician in the FY 2021 Inpatient Rehabilitation Facility (IRF) Prospective Payment System (PPS) proposed rule. The AMA and others urge CMS not to finalize this proposal as it would undermine access to physician-led, team-based care in the rehabilitation setting, which is necessary for IRF patients who are extraordinarily vulnerable, complicated, and require comprehensive and multi-layered care.
There is also a concern that if this rule is implemented, it will set a dangerous precedent for removing physician supervision requirements in other health care settings. The most effective approach to maximizing the unique and complementary skill sets of all health care professionals on a team to ensure patients achieve their care goals is to rely on physician leadership. Nurse practitioners and physician assistants play vital roles in providing care to patients as part of an interdisciplinary care team, but their skill set is not interchangeable with that of a fully trained physician.
The AMA is urging the Centers for Disease Control and Prevention (CDC) to make significant revisions to its 2016 Guideline for Prescribing Opioids for Chronic Pain (CDC Guideline) to protect patients with pain from the ongoing unintended consequences and misapplication of the CDC Guideline.
"To make meaningful progress towards ending this epidemic, a broad-based public health approach is required," wrote AMA Executive Vice President James L. Madara, MD. "We are now facing an unprecedented, multi-factorial and much more dangerous overdose and drug epidemic driven by heroin and illicitly manufactured fentanyl, fentanyl analogs and stimulants. We can no longer afford to view increasing drug-related mortality through a prescription opioid-myopic lens."
Among its recommendations, the AMA called for the CDC to remove arbitrary limits or other restrictions on opioid prescribing given that there is no evidence they have improved outcomes for patients with pain, and in fact they have increased stigma for patients with pain and have inappropriately denied access to legitimate pain care for patients. "Hard thresholds should never be used. Where such thresholds have been implemented based on the previous CDC Guideline, they should be eliminated," Dr. Madara wrote, and also highlighted that CDC itself cautioned against misapplying the guideline to justify specific dose or quantity restrictions.
The AMA also urged CDC to add to its recommendations that "public and private payer policies must be fundamentally altered and aligned to support payment for non-pharmacologic treatments and multimodal, multidisciplinary pain care."
Read the full AMA letter and each recommendation to revise the CDC Guideline.
In an op-ed Patrice A. Harris, MD, MA, AMA Immediate Past President, writes about what states can do to help ensure the nation's opioid epidemic does not become worse during COVID-19. An excerpt follows:
"While we continue to take steps to address COVID-19 to help keep the public safe, the AMA has seen reports from more than 30 states concerning increases in opioid-related mortality, mental health crises, suicide and addiction-related relapse. Reports are from every region in the nation. This includes a 20 percent increase in calls to the Jacksonville, Fla., fire department concerning overdoses; an "unusual spike" in overdoses in DuPage County, Ill.; increased emergency department visits in coastal North Carolina and spikes in fentanyl-related overdoses in Seattle. Georgia, too, has not been spared, causing increased concern for many.
Social distancing, a dramatic increase in unemployment and widespread economic woes lend themselves to common substance misuse triggers: isolation and anxiety. The medical community often refers to addiction as "a disease of isolation," and Americans are at high risk now, even those who did not misuse opioids previously. Those who are homeless or incarcerated may be particularly vulnerable. At the end of April, 28 percent of Americans reported worsening mental health, and 34 percent reported worsening emotional well-being.
As these stories continue, the AMA is working with federal agencies to help protect our communities. In particular, the U.S. Substance Abuse and Mental Health Services Administration and U.S. Drug Enforcement Administration have increased flexibility for providing buprenorphine and methadone to patients with opioid use disorder, and the DEA has also increased flexibility to help patients with pain obtain necessary medications.
Additional steps must be taken to help ensure the nation's opioid epidemic does not become worse."
Read the full story here.
The AMA this week urged OptumRx and United Healthcare (UHC) to delay a mandate for all physicians to use electronic prescribing for controlled substances (EPCS) for patients using home delivery beginning July 1. OptumRx, which previously delayed the EPCS mandate at the outset of the COVID-19 pandemic, said that it is moving forward due to its perception that primary care and other physician practices are returning to full capacity and ready to implement the EPCS requirement.
The AMA emphasized that OptumRx will begin to enforce its EPCS mandate on patients and physicians while the national COVID-19 Public Health Emergency remains in effect, likely causing disruptions in care for patients if their physicians are not currently EPCS compliant. The AMA pointed out that the OptumRx EPCS mandate is in contrast to efforts by the U.S. Drug Enforcement Administration and U.S. Substance Abuse and Mental Health Services Administration to increase flexibility for patients to maintain access to medications through telemedicine.
While OptumRx said that physicians can seek a waiver from the EPCS home delivery mandate, the AMA highlighted that many physician practices remain under significant stress and that it is the wrong time to add additional financial and administrative burdens for EPCS compliance.
For more information about the OptumRx EPCS mandate, click here.
In a decision combining three separate cases, the U.S. Supreme Court ruled 6-3 that the protections against sex discrimination in the workplace contained in Title VII of the 1964 Civil Rights Act apply to employees in the LGBTQ+ community.
"Held: An employer who fires an individual merely for being gay or transgender violates Title VII," the ruling states, noting that the Civil Right Act made it "unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual … because of such individual's race, color, religion, sex, or national origin."
This was the result sought by the AMA Litigation Center, American College of Physicians, Medical Association of Georgia, Michigan State Medical Society and other medical, mental health and health care organizations in a joint amicus brief in the Supreme Court filed last July.
"The AMA joined 15 other leading health organizations in an amicus brief to the Supreme Court, urging it to confirm that discrimination protections under Title VII of the Civil Rights Act of 1964 cover sexual orientation and gender identity," said AMA President Susan R. Bailey, MD. "We know that discrimination reinforces stigma and can have significant adverse mental and physical health outcomes. We are pleased the Supreme Court also recognized this fact."
The court ruled that Title VII is violated when an employer fires an employee because of their sexual orientation or gender identity because this type of discrimination "requires an employer to intentionally treat individual employees differently because of their sex."
The ruling comes on the heels of a final federal rule released last week HHS (see above story in the National section) that reversed a policy that had banned health care providers from discriminating against LGBTQ patients, women and others.
Read the full article here.
Statement from AMA President Susan R. Bailey, MD, on the recent Supreme Court decision involving the Trump Administrations attempted rescission of the Deferred Action for Childhood Arrivals (DACA) program.
"The American Medical Association applauds today's U.S. Supreme Court decision finding that the Trump Administration's attempted rescission of the Deferred Action for Childhood Arrivals (DACA) program was inadequate and invalid.
"Amid the COVID-19 pandemic that has underscored physician shortages and surging caseloads, DACA recipients have responded to the call by continuing to provide vital patient care. We are pleased that the Supreme Court has recognized that upholding a rollback of the DACA program would have reduced our nation's health care capacity at a time when we can ill afford it.
"The AMA has opposed the administration's decision to end the DACA program since it was announced in 2017, joining 32 other leading health organizations in an amicus brief to the Supreme Court in support of shielding individuals protected by the DACA program – including the nearly 30,000 DACA recipients who work as health care professionals across the U.S. We believe that the administration's attempt to terminate the DACA program ignored these individuals' enormous contributions to our country.
"Our country relies on the skills and experiences of the hundreds of active physicians, plus medical students and residents who depend on DACA for their eligibility to study, practice medicine and fill crucial gaps in patient care. During their careers, these highly skilled clinicians will care for and improve the lives of millions of Americans while helping to fulfill our goal of a diverse health care workforce that reflects the demographics of the patients we serve."
A new Policy Research Perspective from the AMA provides a detailed examination of U.S. National Health Expenditures (NHE) through 2018 using data released by CMS. In 2018, health spending increased by 4.6% to $3.6 trillion or $11,172 per capita. Health spending as a share of GDP decreased from 17.9% in 2016 and 2017 to 17.7% in 2018. Spending grew slightly faster in 2018 (4.6%) than in 2017 (4.2%). This was due to the reinstatement of the Affordable Care Act (ACA) health insurance tax (that was previously suspended in 2017) which insurers priced into premiums paid by enrollees. Nevertheless, personal health care spending, which includes spending on hospital care, physician services and prescription drugs, maintained a stable growth rate of 4.1% in both 2017 and 2018.
Watch a video interview with Todd Askew, AMA Senior Vice President, Advocacy, where he discusses the latest advocacy efforts related to COVID-19 and additional issues, including:
- The U.S. Supreme Court's decision this week on Title VII, affirming that federal workplace discrimination protections apply to LGBTQ+ individuals
- HHS' rule last week that removed protections that had banned health care providers and health plans from discriminating against LGBTQ patients, women and others
- COVID-19 impact on minoritized populations
- COVID-19 antibody and diagnostic testing challenges
- The rapid evolution of telehealth due to COVID-19
Read more about the AMA's COVID-19 advocacy efforts here.
The AMA Guides® to the Evaluation of Permanent Impairmentincorporate science, evidence-based medicine and assessment tools to provide a rigorous methodology to enable physicians to provide a fair and consistent evaluation of patients who have suffered an illness or injury resulting in a permanent impairment.
The AMA Guides are being modernized to better support patients and physicians through a more easily accessible platform. Recent medical advances have changed expected outcomes requiring the impairment evaluation process to evolve. The AMA Guides are now curated by an independent multidisciplinary editorial panel and will be advanced as a digital product in late 2020.
"Using the most current evidence-based science is critical to providing fair and consistent impairment evaluations for patients and injured workers," says Mark Melhorn, MD, co-chair of the AMA Guides Editorial Panel. "As new medical innovations become available, patient outcomes continue to improve. It is important that the impairment process reflect these changes."
The new AMA Guides will:
- Promote the most current medicine
- Update evaluations under the stewardship of the editorial panel
- Leverage advances in technology
- Reduce physician burden through easy access to materials
- Create a reasonable transition for all stakeholders to the most current medicine
To get involved:
- Register to stay informed
- Attend AMA Guides Editorial Panel meetings
- Submit suggestions to email@example.com
- Form or join a proposal team
- Help with advocacy and legislative adoption
Regardless of edition, the AMA Guides are part of the legislative and regulatory fabric in most states. To discuss how to best approach legislative and regulatory changes in your state, please contact ARC@ama-assn.org.
The CARES Act Provider Relief Fund issued clarifying guidance on how individual physicians can receive grant funds. By law, the funds reimburse eligible organizations, facilities and physicians for lost revenues and increased expenses attributable to COVID-19. Download the Stimulus Guidance for Physicians resource to understand how individual physicians can receive grant funds from the CARES Act Provider Relief Fund.
The Perspectives from the AMA podcast series brings health care professionals timely, relevant and emerging information that impacts daily practice and the changing world of medicine. A new episode, "Reopening practices in light of COVID-19," reviews the AMA's guidance for reopening practices during the pandemic and discusses how some practices have begun to reopen. Hear from the AMA's Director of Physician Practice Sustainability Carol Vargo, pediatrician Sheryl Hirsch, MD, and family physician Thomas Eppes, MD.
The presentation submission period is now open for the 2021 Rx Drug Abuse & Heroin Summit, which will be held April 5-8 at the Gaylord Opryland Resort & Convention Center in Nashville, Tennessee. The deadline for proposal submissions is Aug. 28. Presentation proposals can be submitted for a breakout session (75-minute education session), the poster hall or both. There is a limit of three presentation proposals per submitter.
Submit your proposal here.
Improving health IT products to better care for LGTBQ patients
June 22-29: The AMA Physician Innovation Network (PIN) will host a discussion diving into how to provide insights into opportunities for health information technology products to better support physicians in providing care to LGBTQ patients. The virtual discussion will explore impacts on health equity, continuity of care and pain points in practice, and dive into how practices, health systems and vendors are implementing best practices for capturing the right data to help improve care for LGTBQ populations. Concurrent to the AMA celebrating Pride Month, the discussion catalyzes active and ongoing research aimed at positively impacting physician and patient experience. The discussion will open June 22 at 9 a.m. and remain open until June 29 at 11:59 p.m. Central time. Join here.
June 23: Marilyn J. Heine, MD, Chair, AMA Council on Legislation, will be speaking on a CAQH CORE Board panel webinar at 2:00 p.m. Eastern time centered on key industry topics, including value-based payments, interoperability and COVID-19. Register here.