2017 Announcements

The Centers for Medicare & Medicaid Services (CMS) has extended the date eligible professionals (EPs) have to register and attest to meeting the Meaningful Use EHR Incentive Program requirements for 2016. EPs now have until Monday, Mar. 13, 2017, at 11:59 p.m. PT to register and attest in order to avoid the 2018 penalty. Those participating in the Medicaid portion of the EHR Incentive Program should refer to your state's deadlines for attestation information. Note that EPs eligible to participate in both the Medicare and Medicaid EHR Incentive Programs must attest to meeting the criteria for one or the other to avoid the 2018 Medicare penalty. The Medicare Meaningful Use program for physicians sunsets after this reporting period. EHR use will continue to be measured under the Merit-Based Incentive Payment System (MIPS). The MGMA Meaningful Use Resource Center includes links to the CMS 2016 registration and attestation website, as well as helpful MGMA and CMS resources. 

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Anthem-Cigna Merger Blocked
In a significant win last night for organized medicine and the nation’s patients, federal judge Amy Berman Jackson blocked the proposed Anthem-Cigna merger. The judge found that the merger would have substantially lessened competition for the sale of health insurance to national employers resulting in higher prices and diminished prospects for innovation. In a historic, stunning affirmation of the position urged by the AMA and consequently adopted by the government, Judge Jackson concluded that an enhanced ability to coerce physicians to accept lower reimbursement is not a merger efficiency defense.  She determined that it would not benefit consumers and “would erode the relationship between insurers and providers” and “reduce the collaboration” that is essential to innovation in payment and delivery.

The decision affirms the position urged by AMA and the 17-state medical association antitrust coalition members, particularly our partners in CA, CO, CT, GA, FL, IN, ME, MO, NY, OH, and VA. The AMA/coalition position was adopted in the plaintiffs’ complaint, and the judge rejected the insurers’ arguments that lowered physician reimbursement would benefit consumers and justify the merger.

The AMA and its coalition partners worked tirelessly to oppose this merger: updating our gold standard Competition in Health Insurance: A Comprehensive Study of U.S. Markets; preparing detailed market analyses specific to the proposed Anthem-Cigna merger; sending comprehensive, evidence-based advocacy letters to the US Department of Justice (DOJ) and state regulators after the merger was announced in July 2015; engaging like-minded stakeholders like the American Hospital Association and various patient coalitions, as well as the National Association of Attorneys General; conducting extensive physician surveys to gauge physician concern about the merger and presenting the DOJ and state regulators with compelling survey results; testifying in or submitting memoranda in various state insurance department hearings and/or attorney general investigations, and making that, and other evidence and testimony, available to the DOJ and state regulators; securing outside experts to buttress our arguments and strip down those of the insurers -- all demonstrating how the merger would harm patients and physicians.

This victory is the result of our relentless, focused and collaborative advocacy. We want to take this opportunity to thank all of our coalition partners for helping us achieve this historic victory on behalf of our physician members and their patients. The impact of blocking both mega-mergers cannot be overstated. Our collective work on both mergers is, without a doubt, a model for future advocacy success.
 

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Senate Confirms Price As HHS Secretary
The New York Times (2/10, Pear, Kaplan, Subscription Publication) reports that “the Senate early Friday approved the nomination of Representative Tom Price to be secretary of health and human services.”

The AP (2/10, Fram) reports, “Until recently chairman of the House Budget Committee, Price has proposed repealing” the Affordable Care Act “and replacing it with tax credits, health savings accounts and high-risk pools for sick, costly consumers.”

USA Today (2/10, Hjelmgaard). points out that “senators confirmed his nomination by a strictly party-line 52-47 vote.”

AMA will work with Congress and the Administration to improve care, achieve better outcomes for patients, and reduce regulatory burden on physicians. AMA recently urged Congressional leaders that before any action is taken through reconciliation or other means that would potentially alter coverage, they should lay out for the American people, in reasonable detail, what will replace current policies, so patients and other stakeholders should be able to clearly compare current policy to new proposals so they can make informed decisions about whether they represent a step forward in the ongoing process of health reform. A core principle is that any new reform proposal should not cause individuals currently covered to become uninsured. See the AMA website to learn the latest about our ongoing efforts. (courtesy of the AMA).

 

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Tip of the Week
 
Question: Just How Seriously Do the Authorities Treat Indiscriminate Prescribing of CDS?
 
Answer: Very seriously. In an opinion issued on April 27, 2017 in the case of United States v. Enmon, No. 14-13258, slip op. (11^th Cir. Apr. 27, 2017), the United States Court of Appeals for the Eleventh Circuit upheld the conviction, and twenty (20) year federal prison sentence, of a Georgia physician convicted on 92 counts, including conspiracy to unlawfully dispense controlled substances, unlawful dispensation of controlled substances, and money laundering. The physician was prosecuted based upon his nine-month participation in two pain clinics which had purportedly operated as “pill mills.” On appeal, the physician argued the trial court plainly erred (a) by instructing the jury that his good faith belief that he was acting in the usual course of professional practice was irrelevant and (b) by giving the jury a general verdict form. Second, he challenged the trial court’s decision to allow him to represent himself at trial and at sentencing. Third, he claimed the government presented insufficient evidence regarding the standard of medical care in Georgia. Finally, he argued that his twenty (20) year sentence was substantively unreasonable. The appeals court rejected all these arguments. The doctor’s practice consisted of writing prescriptions, at the cost of $275 per visit, after performing only “cursory” examinations of patients, and that long lines of people waiting for prescriptions formed outside his clinics every day. The Court rejected the physician’s claim that he had a subjective belief he was practicing within the usual standard, and held that such determination must be made by an objective standard.  Under an objective standard, the evidence supported the conclusion that the physician was not operating within the usual course of professional practice in prescribing the large amounts of CDS in the manner in which he had done so. Although the facts of this case were particularly egregious, both federal and state criminal enforcement authorities take the prescribing of CDS extremely seriously indeed, and practitioners need to be particularly careful to dispense CDS only in cases where they are actually medically necessary, as determined by a thorough and proper medical examination of the patient.

Weekly Charting Tip: OSHA, the Occupational Safety and Health Administration is quite alive and well when it comes to enforcing its regulations against physicians.  The seven rules that apply to physicians involve:

1. Having a plan to reduce exposure to bloodborne pathogens.
2. You must have a safety plan for exiting your office.
3.  You must have a plan for hazard communication; this involves hazardous chemicals of any kind. There must be a written list along with several other requirements.
4. Electrical safety rules must be observed.
5. New York does not require reporting occupational injuries and illnesses. There is a federal exemption for medical office reporting.
6. Every practice must display an approved OSHA poster showing the employee rights to a safe working environment.
7. For practices that use x-rays and imaging services, there are rules, such as radiation exposure badges.

 Do NOT ignore the OSHA requirements as the fines may be substantial. Until next week, Larry Kobak, Esq.
 If you have any questions, please contact Kern Augustine, P.C. at 1-800-445-0954 or via email at [email protected].

Weekly Charting Tip: March 21, 2017
In order to comply with three different federal laws, it is very important that you document the fair market value (FMV) and commercial reasonableness of the “arrangement” at issue. Fair Market Value is “the value in arm’s length transactions, consistent with the general market value”. In other words, if I were a stranger, and I wanted a similarly situated arrangement, what would it be worth? There are professional people who actually will prepare a FMV report for you. This is the safest way of doing it. What do rents go for in the same area for a similar amount of space? You can factor in closeness to public transportation, parking lots and the like. Commercial reasonableness encompasses both the series and payment for them. Is it reasonable to pay a neurologist say $300,000 for the 40 hours a week you are offering? That depends on the location and what is expected of the neurologist. Areas with many neurologists tend to offer less. Rural areas may offer more. Think supply and demand. If a deal is too good to be true, it probably is!
Kern Augustine, PC - Stat Law, 3/21/17

Summary of American Health Care Act 
Click here to download a summary of the American Health Care Act  as of March 2017



Weekly Charting Tip: March 8, 2017
Every practice should have a written employee handbook. It should include your office policy as to dress, use of drugs/medication, sexual harassment, vacation, work hours, holidays, discipline and any other office policy you want memorialized. Then, follow it, review it with your staff on a regular basis! If used, and followed, it will protect you from all sorts of employee litigation. Your word to the wise!    -Larry Kobak, Esq.

DEA Reverses Announced Change to Registration Renewal Process

The Drug Enforcement Administration (DEA) has announced that effective January 1, 2017, the DEA is changing its long-standing policy of allowing a grace period for registrants who failed to file a timely renewal application. The DEA reversed its decision and posted a notice that it is retaining its current policy and procedures, with one minor change, regarding registration renewals. The revised announcement states the following: