Friday, June 13th, 2014
The recent accident on the New Jersey Turnpike that resulted in a death and injury to several people including comedian Tracy Morgan is a reminder of the dangers of driving while tired. According to news reports the driver of the Walmart truck that caused the accident had been awake for over 24 hours prior to the accident. As physicians, whether in training or in practice, we all have experienced being awake for 24 hours or more. Limitations on the hours of house staff offer little protection (a 24 hour shift is still acceptable) and there are no standards for attending physicians when we are on call. This level of fatigue represents a significant risk to the physician as well as members of the community. Friends don’t let friends drink and drive and colleagues shouldn’t let colleagues drive under unsafe conditions. As physicians we need to heal ourselves and prevent unnecessary injuries and deaths.
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Wednesday, June 11th, 2014
PHYSICIANS, PLEASE TAKE NOTE
MSSNY HAS LEARNED THAT OPMC WILL BEGIN TO TAKE ACTION AGAINST A HANDFUL OF PHYSICIANS WHO HAVE NOT UPDATED THEIR PHYSICIAN PROFILES AS REQUIRED BY LAW.
WE ARE ADVISED THAT DOH MADE NUMEROUS ATTEMPTS TO SPEAK WITH THESE PHYSICIANS THROUGH REGULAR NOTICES AND PERSONAL CALLS. AND SINCE THEIR LAST CALL TO THESE PHYSICIANS, MORE THAN SIXTY DAYS HAVE PASSED WITHOUT THESE PHYSICIANS TAKING THE REQUIRED ACTION.
IF YOU HAVEN’T YET UPDATED YOUR PHYSICIAN PROFILE PLEASE DO SO IMMEDIATELY!
For more information and to update your profile, click here.
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Wednesday, December 18th, 2013
The Medical Society of the State of New York (MSSNY) has filed an amicus brief with the Second Circuit Court of Appeals in connection with United Healthcare’s terminations of physicians in their Medicare Advantage network. An additional amici brief was filed with the Second Circuit Court of Appeals regarding UHC’s appeal of the District Court ruling on Tuesday, December 10.
Along with Fairfield and Hartford Counties, several additional Connecticut counties and specialty societies have now joined as part of the amici brief. Other state and national organizations have also joined as part of the amici brief:
United Healthcare has filed a motion for emergency expedited briefing and argument in its appeal to the United States Court of Appeals, Second Circuit, seeking to overturn the preliminary injunction granted by a lower federal court in favor of plaintiffs Fairfield County Medical Association and Hartford County Medical Association, which enjoins United from removing certain physicians from its Medicare Advantage network effective, February 1, 2014.
In New York State, physicians are being terminated on December 31, 2013. Again, in New York, if patients don’t like their Managed Care plan starting in January, they have until February 14, 2014, to revert back to original fee-for-service Medicare, not another Medicare Advantage plan. United argues that its participation agreement with physicians clearly allows United to amend the agreement to add or remove product lines which a physician may participate, including the Medicare Advantage product. According to United, the preliminary injunction deprives United of its contractual right to determine the size and composition of its Medicare Advantage network. United also argues the lower court incorrectly held that the county medical societies have legal standing to bring the legal action on behalf of its members. The participation agreement between United and its physicians includes a provision that requires all disputes to be subject to binding arbitration, and, United argues, the lower court’s ruling is that that the medical societies have standing to bring a lawsuit since United’s actions run “roughshod” over the contract terms its participating physicians.
MSSNY needs to hear from regarding physicians in New York who have been similarly terminated from United’s Medicare Advantage Network “without cause.”
Please contact Regina McNally, VP Socio-Medical Economics at email@example.com MSSNY needs terminated physicians to provide us with the written notice of termination from the Medicare Advantage Network; the United participation agreement; and we need you to tell us how the anticipated hardship caused by the termination will harm your medical practice and your Medicare Advantage patients.
Help us to help you.
Attorney General Schneiderman, at MSSNY’s urging, has written CMS, asking that the open enrollment period be extended for patients to switch between Medicare Advantage Plans. CMS has not yet responded.
As always, keep MSSNY informed of your Medicare Advantage terminations and of any problems you and your patients are having.
Sam L. Unterricht, MD
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Tuesday, October 1st, 2013
As of late afternoon on Monday, September 30, it appears increasingly likely that Congress will miss the deadline for passing a Continuing Resolution (CR) in time to fund federal agencies and programs in the new fiscal year, which begins on October 1. Deliberations continue, and it is anticipated that at least a short-term CR will be enacted in the next few days. In the meantime, however, many government programs will be forced to stop operating after midnight tonight if Congress fails to reach agreement.
Attached is a memorandum released last week by the Department of Health and Human Services that outlines the department’s contingency staffing and operating plans in the event that the government is forced to shut down.
Activities authorized by law, including those that do not rely on annual appropriations, and those that involve the safety of human life and protection of property will largely be unaffected. Following are some of the specific HHS activities that will continue in the event of a federal government shut-down:
Among the activities that will not continue:
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Monday, August 26th, 2013
In response to MSSNY’s urging, below please find a link to a notice from DOH regarding what physicians should do based upon delays in obtaining an HCS account. The notice reflects comments offered by the Director of the Bureau of Narcotics Enforcement earlier this week during the MSSNY I-STOP webinar, and referenced in Dr. Unterricht’s e-news editorial today. We will follow up with a broad alert to physicians across New York State referencing this DOH statement.
The statement from DOH reads as follows:
“The updated Prescription Monitoring Program Registry is operational and has been available on-line since June 12, 2013. All users must access the PMP Registry through the Department of Health’s secure Health Commerce System (”HCS”). With the upcoming effective date of the I-STOP law requiring the use of the PMP Registry, a large late surge of practitioners are now submitting requests for HCS accounts. Although the Department of Health is working diligently to process all requests, this significant influx has resulted in a delay in processing accounts.
During this transition period, practitioners who are making a good faith effort to apply but are unable to establish HCS accounts, should continue to provide treatment to their patients in the same manner as they currently do, including the prescribing of controlled substances without accessing PMP Registry. We expect this transition period to last through October.”
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Wednesday, June 26th, 2013
The Legislature concluded its 2013 Session at 6:50 Saturday morning. While pundits have called this the ‘do nothing’ Session, we must reflect upon the many successes achieved by MSSNY- its physician leaders, rank and file physicians- and MSSNY’s Division of Governmental Affairs.
We faced an onslaught of proposals which would have adversely impacted the practice of medicine- and met them head on.
MSSNY succeeded in defeating a serious proposal which would have prevented 60% or more of the 24,200 physicians who currently have Excess liability protection from remaining eligible for this additional layer of coverage, including successfully opposing a proposal to require Medicaid participation as a condition.
MSSNY also succeeded in defeating every broad scope of practice expansion bill, including the nurse practitioner independent practice bill; the naturopath, podiatrist and dental scope of practice bills; and the retail clinic proposal.
MSSNY defeated two proposals which would have required physicians to complete continuing medical education on pain management.
During the waning days of Session, MSSNY physician leaders’ and lobbyists’ advocacy prevented Assembly passage of the Date of Discovery statute of limitations bill, a measure which would have resulted in an immediate 15% increase in physician medical liability premiums.
Despite strong opposition from the commercial and managed care health insurance industry, MSSNY was able to once again obtain passage of the Out of Network bill by the NYS Senate. We are very disappointed, however, that the bill did not pass the NYS Assembly. We have laid a strong foundation for future action by the Assembly and will continue to enhance these efforts through the summer and fall. Critical to our success will be our ability to secure support from patient organizations from the community level on up. We must assure that policymakers understand that this is a patient protection issue and not just a pocketbook issue. Additionally, we must look to other venues for redress. We must work with the Executive team establishing the Health Benefits Exchange. We must work with our State Attorney General. And we must continue our work with our Governor.
While we have much to do, we must take stock of our victories – they were real and they were substantial. But we must continue to work hard to achieve a financially stable and improved work environment for our physicians who are in private practice as well as for our physicians who are employed by hospitals or by other healthcare providers. We must do so if we are to retain and attract the best and the brightest physicians to New York State. We stand ready to continue this work into 2014.
Your DGA Team,
Liz Dears, Moe Auster, Pat Clancy, Barbara Ellman
1.) Out of Network
The New York State Senate overwhelmingly passed legislation (S.2551, Hannon) strongly supported by MSSNY that would enact a number of different reforms to provide greater coverage and transparency when patients receive coverage from an out of network physician. However, it did not appear this legislation or similar legislation (A.7813) sponsored by Assembly Health Committee Chair Richard Gottfried would be taken up by the State Assembly prior to the end of the regularly scheduled Session.
While Assembly leaders have expressed significant interest in attempting to address this problem, concerns had been expressed by some, including by Assembly Insurance Committee Chair Kevin Cahill, regarding the reliability of the FAIR Health database which S.2551 and A.7813 would set forth as the universal reference point for out of network coverage. Physician leaders and MSSNY staff have had several meetings with Assemblyman Cahill to highlight that the FAIR Health database is neither controlled by the health plans nor health care providers, and reiterated that it was created by settlements by then Attorney General, now Governor Cuomo, to provide greater transparency and independence in determining out of network coverage. These discussions will continue into the summer and fall.
MSSNY continues to urge physicians to contact their Assemblymembers to urge that this legislation be taken up when the Assembly returns to Albany at some point later in the year.
MSSNY’s website includes briefing materials on this issue along with a brief video from Nassau County Medical Society Past-President Dr. Michael Brisman as to why this legislation is so important for all physicians and patients, not just out of network physicians, please click here:
2.) Date of Discovery Statute of Limitations
During the final week of session, the Assembly reported the Date of Discovery statute of limitations bill to the floor of the Assembly. Your DGA team immediately conferred with many members of the Assembly to urge the Assembly to not take up this proposal because of the immediate negative impact it would have on physician liability premium rates (by increasing premiums by as much as 15%) and the resulting patient access delays which would occur. As a result of this action and of the grassroots action by MSSNY leadership and members throughout the year, neither the Assembly not the Senate passed the bill.
Through numerous meetings, communications and press releases, legislators and key staff have been repeatedly advised by MSSNY this year that New York physicians already pay medical liability premiums that are among the very highest in the nation, and that any further increases in these premiums cannot be sustained. New York’s health care delivery system is already at a tenuous state, and cannot sustain the enormous increases these bills would cause, particularly at a time when hundreds of thousands of New Yorkers will be receiving health insurance coverage for the first time as a result of the implementation of PPACA and New York’s health insurance exchange.
Among other liability and premium cost expansion bills considered by the Legislature which were advanced but rejected include:
3.) Non-Physician Scope of Practice Legislation
We faced many threats this year from many non-physician organizations and for-profit retail and pharmacy industry and other interested stakeholders on legislation which would expand the scope of practice of many title VIII health care professionals. Working with many specialty and county medical societies, MSSNY was very successful is defeating an unusually large volume of scope bills this year. While a few bills passed the NYS Senate, the NYS Assembly refused to take action on them. A list of the many bills discussed this year follows.
In addition to scope of practice expansion bills, legislation was advanced which would have negatively impacted the protections afforded by the corporate practice of medicine doctrine by allowing specific non-physician practitioners to partner with physicians. These measures are described below:
4.) Healthcare Professional Transparency Act
Legislation (S. 5493, Griffo/A. 7889, Stirpe) which would amend the Education Law to assure appropriate identification of all licensed health care professionals in their one-on one interaction with patients and in their advertisements to the public was introduced in both Houses of the Legislature in May. It was reported to the Senate floor and was included on the Senate Active list for June 17th but was laid aside and not taken up during the end of session. The bill was not considered by the Assembly.
Importantly, this bill will require that advertisements for services to be provided by health care practitioners identify the type of professional license and board certification (if applicable) held by the health care professional. In addition, this measure would require all advertisements to be free from any and all deceptive or misleading information. Ambiguous provider nomenclature, related advertisements and marketing, and the myriad of individuals one encounters in each point of service exacerbate patient uncertainty.
Additionally, this measure would require that, during patient encounters, health care practitioners wear an identification name tag that includes the type of license held by the practitioner. A resolution supporting the wearing of identification badges in all settings was approved in April 2013 by MSSNY’s House of Delegates. The bill would also require the health care practitioner to display a document in his or her office that clearly identifies the type of license that the practitioner holds.
In a clinical setting, particularly during an emergency or life-threatening hospitalization, it is often impossible for patients to know whether the person providing their care is a physician, nurse practitioner, physician assistant, pharmacist, dentist, or dental hygienist, for example. Greater transparency concerning the credentials of health care professionals in their advertisements will assist the public in making informed decisions concerning the providers from whom they seek treatment.
The bill is supported by the AMA and several national and state specialty societies. MSSNY and the specialty societies will develop a strategy to assure early consideration of the proposal in 2014.
5.) OBS Facility Fee Bill
The Legislature adjourned without taking action on legislation (S.2944-A, Hannon)/A.6702, Quart) which would have assured that physicians with accredited or certified office based surgical practices could apply for and receive additional payment for procedures performed at such practice settings. MSSNY along with many other Specialty Societies supports this legislation.
6.) Mandate on Primary Care Physicians to Offer Hep C Test Passes Both Houses
Over strong MSSNY objection, both Houses have passed legislation (S. 2750A, Hannon/ A. 1286A, Zebrowski) which mandates office-based primary care practices, diagnostic and treatment centers, and hospitals to offer a Hepatitis C test to patients born between 1945-1965. The bill will now be sent to Governor Andrew Cuomo for his consideration. Under the provisions of the bill, “primary care” is defined as family medicine, general pediatrics, primary care, internal medicine, primary care obstetrics, or primary care gynecology, without regard to board certification. The bill requires that, for any patient that is positive or reactive, the physician offer follow-up health care, including a Hepatitis C diagnostic test, or refers that individual to a provider who can. The amendments would also require a report by the commissioner of health. If enacted, the effective date of the bill would be January 1, 2014. The bill provides a sunset provision of January 1, 2020.
The Medical Society strongly opposes this mandate and will urge Governor Cuomo to veto the bill. The United State Preventive Services Task Force (USPTF) currently is at odds with the Centers for Disease Control and Prevention (CDC) on this issue. The U.S. Preventive Services Task Force recommends against screening for Hepatitis C virus infection in asymptomatic adults who are not at increased risk (general population) and has found insufficient evidence to recommend for or against routine screening for HCV infection in adults at high risk for infection. In August 2012, the CDC issued “Recommendations for the Identification of Chronic Hepatitis C Virus Infection Among Persons Born During 1945-1965.” Among its recommendations is the recommendation that adults born during 1945-1965 should receive one-time testing for Hepatitis C. On January 15, 2013, an article entitled “Screening for Hepatitis C Virus Infection in Adults: A Systematic Review for the US Preventive Services Task Force” appeared in the Annals of Internal Medicine. It reported the results of a study which was conducted in response to the CDC’s new recommendations. The study concluded that additional studies were needed prior to the USPTF changing its recommendations for testing for HCV.
Most importantly, the New York State Department of Health is expected to reconvene, in June, a panel of experts to revise and update the Department of Health’s “Clinical Guidelines for the Medical Management of Hepatitis C.” Consequently, MSSNY had urged the Legislature to await the recommendations of these clinicians before taking action with which they may not agree.
7.) CME Mandate on Pain Management
Legislation to mandate the completion of coursework on pain management received much attention in both Houses this year. One bill, (S.2947, Hannon/A.1124, Rosenthal) which would require all health care practitioners to complete course work or training on pain management and palliative care passed the Assembly but died on the Senate floor due in large part to strong MSSNY opposition. The bill would require that all health care practitioners complete course work or training every four years. A second proposal, Senate Bill 2861A, sponsored by Senator George Maziarz, would require prescribers of prescription pain medication to complete a one- time eight hour course related to pain management of opiate-dependent patients. It did not advance from the Senate Health Committee. There is no same as bill in the Assembly. MSSNY actively opposed each of these bills.
8.) OPMC legislation passes Senate
Legislation (S.4527A, Hannon/A.7102B, Gottfried which would make certain changes to OPMC procedures was passed by the NYS Senate but stalled in the NYS Assembly. To strengthen enforcement of clinical competency remediation the bill would allow a Committee on Professional Conduct (Committee), after notice to the licensee and an opportunity to be heard has been afforded, to order compliance with the remediation recommendations of a clinical competency exam. These changes would also allow a Committee to refer the case to the Director of OPMC for presentation to an investigative committee if it determines that there are no reasonable conditions or limitations that could be imposed upon the licensee that would sufficiently mitigate the licensee’s incompetence. Where the Committee determines that there is no practical remediation for the alleged incompetence, then such incompetence would be grounds for a finding of professional misconduct.
The bill would also permit notice of disciplinary proceedings conducted by the Office of Professional Conduct
(OPMC) of the Department of Health (DOH) to be served by mail.
Additionally, the bill would lift the ban on physician use of testimonials. Physicians – like non-physicians- would be able to use testimonials in their advertising providing that such testimonials comply with the specifications of the Rules of the Board of Regents, 8 NYCRR 29 1(b)(12). This proposal is consistent with Resolution 105 adopted by MSSNY’s 2011 House of Delegates.
Importantly, provisions in earlier drafts of this bill that would have imposed significant penalties for failure to follow a Commissioner’s order were removed at MSSNY’s request.
What to expect now that Session has concluded?
1.) Department of Health’s Public Health and Planning Council review of CON Redesign proposals
The Department of Health’s Public Health and Health Planning Council (PHHPC) will continue to review Certificate of Need redesign proposals including a proposal to impose greater regulation on certain physician practices, particularly large group practices and physician practice equipment purchases.
PHHPC’s subcommittee on health planning is holding a series of public meetings to gain input on these proposals. In addition to a meeting held on May 21st, meetings will be held on June 26th, July 17th (Rochester), September 13th and October 4th. With the exception of the July meeting, all meetings will be held in NYC. The meetings are webcast and may be viewed by clicking on the following link: http://www.health.ny.gov/events/webcasts/
The agenda for the June 26th meeting has been posted and can be found below. The focus of the meeting will be on the perspective of the entities that ‘finance payment’ for the services provided in ambulatory settings.
I. Welcome and Introductions
John Rugge, M.D., Chair
II. Ambulatory Care Services: The Perspective of the Financiers
A. Commercial Payers: A Panel Discussion
Donna Frescatore, Executive Director of the New York Health Benefit Exchange
B. New York Health Benefit Exchange
Donna Frescatore, Executive Director of the New York Health Benefit Exchange
C. Department of Financial Services
Troy Oechsner, Deputy Superintendent for Health, NYS Insurance Department
D. Office of Health Insurance Programs, Department of Health
Phil Mossman, Health Care Finance Program Manager, NYSDepartment of Health
III. Principles For Proceeding
· Process Principles
· Outcome Principles
IV. Public Comments
There is some question as to the impact of legislation passed by both Houses this week which appears to establish the Legislature’s intention to be involved in the PHHPC review process on CON redesign. Specifically, A.6838A, Gottfried/A.4493A, Hoylman, if approved by the Governor, would require the Commissioner of Health to conduct a study of “current innovations in the delivery of health care services not presently required to undergo state certificate of need processes nor required to obtain authorization to conduct office based surgery. Entities to be studied shall include, but not be limited to, clinics operating within pharmacies (mini-clinics), medical offices open for extended hours without an appointment (urgent care centers), and major physician practices (whether in one location or multiple locations) whose physicians are linked directly or indirectly in an economic relationship”. The bill requires that the study examine the impact or impacts of the respective entities on the delivery, quality and cost of health care in the respective communities and regions in which they are found. If signed into law, a report is required to be presented to the Governor and the Legislature within one year from the date of its enactment.
2.) Department of Health’s Work Group on Pain Management Education for Prescribers and Patients
The Department’s Work Group continues to deliberate concerning certain I-STOP implementation details and with regard to whether to require prescribers to complete coursework on pain management.
The duty to consult the NYS Department of Health’s Prescription Monitoring Program (PMP) becomes effective Aug 27, 2013. Physicians (or their designated office staff) will be required to check the PMP for every patient that is prescribed a Schedule II, III or IV controlled substance. The “duty to consult” does not apply for inpatients at hospitals or inpatient clinics, but does apply upon discharge. The new Prescription Monitoring System is now up and running and physicians are encouraged to use that system. Please note that a physician designee is prohibited from checking patients on the PMP until August 27, 2013.
To access the PMP, physicians will need to obtain a Health Commerce System (HCS) account. To establish an HCS account, go to the DOH website:
https://hcsteamwork1.health.state.ny.us/pub/top.html and follow the instructions.
New accounts are usually established within two weeks, and once the application is processed, physicians will receive an email back from DOH with documents. The documents must be printed, notarized, and received by the Department of Health for your user ID to be issued.
“Designated office staff” should also sign up for a HCS account. This will enable them to check the PMP database on behalf of the physician on August 27, 2013. Information for establishing this account can be found on the MSSNY website at www.mssny.org under the I-STOP heading. For assistance in setting up the designee, please contact the DOH Commerce Accounts Management Unit (CAMU) at 1-866-529-1890. More information may be obtained by going to: www.health.ny.gov/professionals/narcotic/practitioners
According to the New York State Department of Health, the new PMP site will make it easier for physicians to view and to upload multiple patients by August 27, 2013. The NYS Prescription Registration Form, a copy of the Department of Health brochure, and further information on I-STOP information are all available on the MSSNY website at www.mssny.org. There is also a video presentation of the MSSNY webinar on I-Stop Implementation also located on the site under I-Stop Information. MSSNY is also planning additional webinars in July and August with Terry O’Leary, director of the Bureau of Narcotics Enforcement. MSSNY will notify you once these dates have been secured.
3.) The Department of Financial Services and Department of Health will implement the Health Insurance Exchange- Individuals and Small Businesses Will Be Able to Purchase coverage in October.
MSSNY will continue its ongoing discussions with New York State Health Insurance Exchange staff regarding the products that will be sold through the Exchange. New York state residents will be able to begin enrolling in health insurance products sold through the Exchange starting this October 1, with coverage to begin January 1, 2014. At this time, the Exchange administration is still reviewing the offering of the plans to be sold through the Exchange after plans submitted their proposed offerings in April. New York State will be going forward with a large marketing campaign over the summer and fall to promote New Yorkers’ awareness of the Exchange, including seeking the assistance of community groups and advocacy organizations, including health care provider associations, to promote awareness of the Exchange. MSSNY staff along with Dr. Michael Brisman will be meeting with NYHIE Executive Director Donna Frescatore on Tuesday, July 2 to discuss how the Exchange products will “line up” with MSSNY’s articulated goals, which include: a) assuring a Wide Array of Products to Purchase Coverage b) sufficient Network Adequacy within each plan sold through the Exchange and c) fair coverage for OON services.
4.) MSSNY’s Committee on Legislative and Physician Advocacy Will Develop The Legislative Program for 2014
Working with County and Specialty medical societies, MSSNY’s Committee on Legislative and Physician Advocacy will launch development of MSSNY’s Legislative Program for 2014. You will be apprised of meeting dates and will receive background materials and updates in advance of these meetings.
Tuesday, August 7th, 2012
Federal Waiver Will Allow New York to Fully Implement the MRT Action Plan
Albany, NY (August 6, 2012)
Governor Andrew M. Cuomo today announced that New York has submitted an application for a waiver from the federal government that will allow the state to invest up to $10 billion in savings generated by the Medicaid Redesign Team (MRT) reforms to implement an action plan to transform the state’s health care system.
The Medicaid 1115 waiver amendment will enable New York to fully implement the MRT action plan, facilitate innovation, and lower health care costs over the long term. The waiver application submitted today by New York State requests that the federal government allow the state to reinvest over a five-year period up to $10 billion of the $17.1 billion in federal savings generated by MRT reforms.
“The reforms put in place by the Medicaid Redesign Team have already resulted in major savings for taxpayers and better quality of care for New Yorkers,” Governor Cuomo said. “This waiver amendment will allow New York State to fully implement the groundbreaking MRT action plan to permanently restructure our health care system and continue to make New York a national model.”
The initiatives proposed by the MRT – and adopted by the Legislature last year – have led to major savings for state and federal taxpayers. MRT initiatives are projected to save $34.3 billion over the next five years – divided between the State and federal government. If not for these MRT initiatives, state spending would have grown by $2.3 billion in the 2011-12 fiscal year alone.
The waiver amendment’s broad objectives are consistent with the Centers for Medicare and Medicaid Services’ (CMS ) Triple Aim: better health, better care, and lower costs. New York will use federal dollars generated through MRT savings to reinvest in the state’s health care system.
Key strategies outlined in the waiver amendment document include:
As part of the waiver amendment application process and in accordance with requirements outlined by the CMS, New York initiated an extensive public engagement effort. Citizens and stakeholders participated in public forums, topic-specific webinars, and Medicaid member focus groups. The process also included a survey tool, which enabled the public and stakeholders to submit ideas and comments which informed the waiver amendment application.
More information and a copy of the Medicaid waiver amendment application and is available at:http://www.health.ny.gov/health_care/medicaid/redesign/ .
U.S. Representative Brian Higgins said, “Health Care infrastructure investment in Western New York benefits both patient care and the region’s economy. This waiver will allow for continued progress to improve our health care delivery system, creating a better health care network for our region and beyond.”
U.S. Representative Peter King said, “The waiver amendment provides a critical opportunity for New York to modernize and strengthen its health system. I am proud to work with Governor Cuomo and to take the lead on the federal level to ensure that the application is approved quickly.”
U.S. Representative Eliot Engel, said, “Reinvesting our state’s savings to improve the Medicaid program can only help New Yorkers. Instead of Medicaid costing another $2.3 billion, in the 2011-12 fiscal year, savings initiatives are projected to save approximately $34 billion over the next five years, to be divided between the state and federal governments. Putting these funds back to work here in New York helps to keep New Yorkers healthier.”
About the Medicaid Redesign Team:
Established by Governor Cuomo in January 2011, the MRT brought together stakeholders and experts from throughout the state to work cooperatively to both reform New York State’s health care system and reduce costs. In January and February 2011, the MRT held a series of public meetings across the State, which provided New Yorkers valuable opportunities to share their ideas and comments. Meetings were also broadcast on the Internet and informational materials were posted on the MRT web page. In all, the MRT received more than 4,000 ideas from citizens and stakeholders.
The MRT worked in two phases. Phase 1 provided a blueprint for lowering Medicaid spending in State fiscal year 2011-12 by $2.3 billion. Phase 1 was completed in February 2011 when the MRT submitted an initial report in line with the Governor’s Medicaid spending target contained in his 2011-2012 budget. The report included 79 recommendations to redesign and restructure the Medicaid program by bringing efficiencies and by generating better health outcomes for patients. The Legislature, as part of the budget process, approved 78 of the 79 recommendations it considered; these initiatives are now being implemented.
In Phase 2, to address additional issues and to monitor the implementation of key recommendations enacted in Phase 1, the MRT divided into 10 work groups. As part of their work, the groups provided 175 additional stakeholders the opportunity to participate in the MRT process. A number of public hearings were held across the state. Following these sessions, MRT recommendations were compiled and included in a final report. The report is available at http://www.health.ny.gov/health_care/medicaid/redesign/docs/mrtfinalreport 
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Wednesday, June 27th, 2012
June 26th, 2012
The NYS Legislative Session ended in Albany on June 22. All-in-all there were some disappointing (though not unexpected) outcomes in the area of Socio-Medical Economics, while some major wins were obtained in the areas of Scope-of-Practice and Public Health. The following is a summary of the legislative issues that were of interest to physician organizations this past year, and their outcomes:
SOCIO-MEDICAL ECONOMICS LEGISLATION
SENATE PASSES OUT OF NETWORK TRANSPARENCY/COVERAGE LEGISLATION; ASSEMBLY FAILS TO CONSIDER BILL; FURTHER NEGOTIATIONS TO ENSUE
The New York State Senate passed comprehensive legislation (S.7745, Hannon), by a 55-5 vote, that would enact a number of provisions to provide much needed transparency to patients and employers regarding the scope of their health insurance coverage when they pay for coverage that provides the right to see a physician outside of a plan’s network. This includes requiring a health insurance company offering a policy for out of network coverage to assure that there is significant coverage of such costs including offering at least one plan that will provide coverage of 80% of anticipated out of network costs, a major advocacy priority for MSSNY.
The Assembly did not take up the bill prior to the end of the Session. However, passage of this bill by the Senate sets the stage for further discussions on this legislation with the Assembly and Governor’s office, which are expected to continue over the summer and into fall. While the bill contains some provisions with which the medical community has concerns, MSSNY supported the bill because, on balance, it would enhance the ability of patients to have health insurance coverage that actually will provide significant coverage of their health insurance expenses.
In addition to the requirements for sufficiency of out of network coverage, the legislation contains a number of important provisions that would, if ultimately enacted, address several problems faced by patients concerned with the adequacy of their health insurance coverage, including assuring that:
o All health insurance products regulated by New York State, not just HMOs, offer comprehensive provider networks that are sufficient to meet the needs of the patients enrolled in that product;
o All health insurance products issued in New York State afford patients the right, currently available only to those enrolled in HMOs, to receive treatment from a specialist appropriately qualified to treat a patient’s particular condition at no additional cost to the patient, if the network of such insurance product fails to include such appropriately qualified specialist;
o Consumers have a clear and accessible external review procedure to resolve disputes with their health insurers regarding, where necessary, access to out of network care;
o Health insurance companies timely update changes to their provider networks so consumers have current knowledge of which physicians are in the network;
At the same time, because the bill seeks to address many aspects of “surprise” medical bills faced by patients, the bill proposes a number of new obligations on physicians and hospitals, including provisions which would, if enacted:
In a press release, Senator Hannon stated: “This proposal aims to establish balance and fair dealing to the participants involved in the financial aspects of a medical procedure. The patient, the physician and the health plans have, in very recent years, each been subjected to unfair economic results. Primarily for those medical treatments not covered in-network, reports have been prevalent of high unexpected bills to patients, sudden decreases in reimbursements to physicians and surprisingly high charges to health care plans. This legislation seeks to address the inequity in each area.”
With the Legislature likely to return to Albany later this year, discussions on this issue and legislation will continue into the summer and fall.
(AUSTER, DEARS, CONWAY)
COLLECTIVE NEGOTIATION BILLS FAIL TO PASS EITHER HOUSE
Despite the strong support of all of organized medicine and the AFL-CIO, neither the statewide collective negotiation bill (S.3186, Hannon/A. 2474A, Canestrari) nor the demonstration collective negotiation bill (S.7615, Hannon/A.2474B, Canestrari) passed either House of the New York Legislature this year. This is largely due to the very strong opposition from the health insurance industry, the business community and some major hospital associations.
Collective action is now prohibited under federal antitrust laws. As a result, with most regions of New York State being dominated by just one or two health plans, most physicians face one-sided contracts from health insurers with little if any opportunity to negotiate. It is the patient, however, who bears the brunt of this market dynamic because the physicians’ inability to negotiate results in the imposition of unnecessary barriers for patients as they seek to access necessary care. These health plan abuses include: cumbersome pre-authorization processes that delay our patients from receiving needed care and testing; arbitrary limitations on necessary prescription medications; and overly aggressive barriers that limit patients’ ability to receive care from the specialist physician of their choice.
MSSNY had called for a strong grassroots advocacy effort from physicians – and physicians responded in dramatic fashion. Nearly seven thousand emails, calls and faxes were sent through MSSNY’s grassroots action hotline. Unfortunately, several negative press opinion statements and articles which appeared over the past week served to increase lawmaker concerns regarding the possible inflationary impact of collective action on health care premium costs.
MSSNY thanks all physicians and advocacy organizations who reached out to express their support for this important legislation.
(DEARS, CONWAY, AUSTER)
LEGISLATURE PASSES MEDICAID STANDARD PRIOR AUTHORIZATION FORM LEGISLATION SUPPORTED BY MSSNY
The Assembly and Senate passed legislation (A.10248-A, Gottfried/S.7384-A, Hannon) that would, if signed into by the Governor, direct the Department of Health to develop a standard prior authorization form to be used by Medicaid managed care companies to determine coverage for prescription drug medications. The bill requires that this form to be available from managed care plans electronically as well as in paper format. It will also require them to accept such standard form from physicians electronically as well as on paper. As the purpose of this legislation is to reduce some of the administrative burden faced by physicians in assuring their Medicaid patients can obtain needed medications, MSSNY supports this legislation.
As a result of changes enacted in the 2011-12 State Budget, New York State Medicaid pharmacy benefits were shifted from a fee-for-service system to become part of managed care networks effective October 1, 2011. This shift has resulted in millions of Medicaid and Family Health Plus patients in New York transitioning from one statewide prescription drug plan to over 20 managed care companies, each with it own processes for physicians to follow in assuring patients can obtain needed medications.
(AUSTER, DEARS, CONWAY)
LEGISLATION SUPPORTED BY MSSNY TO CONFORM NY PUBLIC HEALTH LAW STARK PROHIBITIONS TO FEDERAL STARK LAW PASSES LEGISLTURE- WILL ALLOW CERTAIN FINANCIAL RELATIONSHIPS CURRENTLY PROHIBITED UNDER STATE LAW BUT PERMITTED UNDER FEDERAL LAW TO OCCUR
Both Houses of the Legislature approved legislation (A. 3551A, Gottfried/S. 4660A, Hannon) to conform New York’s Health Care Practitioner Referral statute with the federal Stark law. In doing so, unless the Public Health and Health Planning Council declares an arrangement to pose a substantial risk of payor or patient abuse, certain financial relationships currently prohibited under state law but permitted under federal law would be allowed. MSSNY supported this bill.
The Federal Stark Law (named for its sponsor Congressman Pete Stark) prohibits physicians from referring Medicare patients for certain designated health services (DHS) to an entity with which the physician or a member of the physician’s immediate family has a financial relationship unless an exception applies. While the federal law covers only those referrals for which the services will be reimbursed by Medicare or Medicaid, the state law is far more expansive and covers all referrals of designated health services, regardless of payer class. All services paid by private insurance and managed care plans as well as self-pay patients are covered.
In 2003, federal law authorized an exception to the physician self-referral prohibition for certain arrangements in which the physician receives necessary non-monetary remuneration that is used solely to receive and transmit electronic prescription drug information. This exception was created to help promote widespread physician adoption of EHR technology.
Current State self-referral prohibitions do not include such an exception. MSSNY’s Division of Governmental Affairs was informed by MSSNY’s General Counsel Donald Moy and representatives from New York County Medical Society that several physician practices who previously had been provided EMR technology for free by a large clinical lab were required as a result of the existing law to repay the lab company fair market value for the EMR. This bill will now enable such arrangements to occur in NYS.
LEGISLATION TO MAKE STATE ACCOUNTABLE CARE ORGANIZATION (ACO) DEMONSTRATION PROGRAM PERMANENT PASSES BOTH HOUSES
Legislation (A.8869B, Gottfried/S.6228B, Hannon) which would make the state Accountable Care Organization (ACO) demonstration program permanent passed both Houses of the Legislature. MSSNY supports the elimination of the ‘demonstration’ which limited the number of ACO’s authorized to obtain a Certificate of Authority under New York Public Health Law in order to assure the development of horizontally integrated physician driven ACOs. Moreover, this measure would enable Medicare Shared Savings ACOs special recognition under New York’s Public Health law and in so doing will afford, to the extent consistent with CMS regulations, safe harbor protection from state Stark, Anti-Kickback, fee slitting and self-referral prohibitions to Medicare only ACOs.
MSSNY had worked with the sponsors of the legislation to remove a provision included in earlier drafts which would have required the ACOs to be not-for-profit. This provision was removed. MSSNY also worked to assure modification of a requirement that the ACOs must include a Federally Qualified Health Center (FQHC). This provision was modified significantly to only require an ACO to use ‘its best efforts’ to include an FQHC which serves the ACO’s service area and who is willing to be a participant in the ACP. MSSNY was pleased to see these changes made to the bill so to assure flexibility and a diversity of entities sponsoring ACOs. (DEARS, CONWAY)
LEGISLATION PASSED TO DE-CERTIFY DME PROVIDERS UNDER NO-FAULT
The Senate and Assembly passed legislation (S.7787, Seward/A.10784, Morelle) to permit the Department of Financial Services to “de-certify” durable medical equipment (DME) providers from submitting claims to No-Fault for fraud and abuse, similar to existing Insurance Law provisions that permit DFS to “de-certify” health care providers from submitting claims to No-Fault in certain circumstances. The purpose of the legislation is to address reports and allegations of rampant fraud in No-Fault, including with the provision of medical equipment such as TENS and EMS machines. Importantly, the provision that was passed is far different than earlier versions under negotiation in the last days of Session which would have imposed a strict prohibition on patients assigning claims to providers of medical equipment, even physicians, if they were not registered with the National Supplier Clearinghouse as an authorized Medicare supplier of DME. MSSNY argued that, since many orthopedic and rehabilitative physicians providing crutches and other “off the shelf” equipment to patients are not required to register with Medicare for providing such equipment, it would have unfairly limited physicians from being able to provide patients with such needed equipment integral to their recovery from injuries. (AUSTER)
BREAST RECONSTRUCTION BILL PASSES BOTH HOUSES
S.3801-A (LaValle) / A.7193-A (Cook), a bill that would provide for insurance coverage for breast reconstructive surgery after a patient has had a partial mastectomy as they currently do when a patient has had a full mastectomy, has passed both Houses and will be sent to the Governor for his consideration. MSSNY supported this bill.
SCOPE OF PRACTICE LEGISLATION
MSSNY DEFEATS LEGISLATION WHICH WOULD HAVE ALLOWED INDEPENDENT PRACTICE BY CERTAIN NURSE PRACTITIONERS
Legislation (A.5308A, Gottfried/S.3289A, Young) which would have permitted certain nurse practitioners to practice independently with a physician or directly with a hospital passed the NYS Assembly, but because of MSSNY’s efforts, did not pass the NYS Senate.
The Nurse Practitioners amended the original bill which would have eliminated entirely the requirement for a written practice agreement and collaborative relationship. The amended bill would have continued to require a written practice agreement and collaborative relationship for NPs in practice for less than three years/3600 hours. For NPs in practice more than three years/3600 hours, the requirement for a written practice agreement would have been eliminated. Under the bill these NPs would need to have a collaborative relationship with a physician, or with multiple physicians or a hospital. The NP would need to file with the Department of Education an attestation identifying the physician, physicians or hospital that has agreed to participate in the collaborative relationship. Written practice guidelines which provide criteria to be used regarding consultation, including methods and frequency of how consultation shall be provided, collaborative management and referral, including emergency referral plans to address the health status and risks of patients are also required to be filed with the Department.
HOWEVER, the current requirement for regular medical record review by the collaborating physician would have been eliminated as would the current requirement for the physician’s judgment to prevail in the event there is a disagreement between the nurse practitioner and collaborating physician. The disruption of these current legal requirements, in MSSNY’s opinion, would have negatively impacted upon the delivery of quality health care.
Moreover, allowing an NP to directly contract with a hospital would also have failed to assure high quality care delivery and further marginalized the private practice of medicine and would have served to further enhance a hospital dominated health care delivery system.
MSSNY would like to express its thanks to the more than 1,100 physicians who contacted their elected representatives to express their opposition to the bill. This form of grassroots advocacy was critical because the NPs also had individual physicians contacting the Legislature.
Also critical to our success on this issue was the fact that eight other Medical Specialty Societies had published memos in opposition to this bill. The sheer volume of physician contacts coupled with the unity of medicine led to the defeat of this bill. We would like to thank the following Specialty Societies for taking the time to express their opposition and to help MSSNY defeat this bill:
New York State Academy of Family Physicians
New York Chapter, American College of Physicians
American Academy of Pediatrics, District II, New York State
New York State Psychiatric Association
New York State Opthalmological Society
New York State American College of Surgeons
New York State Society of Orthopaedic Surgeons
New York State Society of Otolaryngology
(DEARS, ELLMAN, CONWAY)
DENTAL SURGEON BILL PASSES SENATE BUT NOT ASSEMBLY
A.2820-A (Morelle) / S.3059-A (Libous), a bill that would have expanded the scope of practice of oral and maxillofacial dental surgeons to allow them to perform any procedure within the maxillofacial area, including cosmetic surgery, did not advance from the Assembly Higher Education Committee at the end of the Session. Although the bill passed the Senate, it will have to be reintroduced in the next Session and start over. MSSNY strongly opposed this bill.
NEGOTIATED PODIATRY BILL PASSES BOTH HOUSES
S.7800 (Libous) / A.9293-A (Pretlow), a bill that was negotiated at the end of the Session between the Orthopaedic Society and the Podiatry Association, passed both Houses. After negotiations concluded, MSSNY was informed that the Radiology Society opposed the bill negotiated by the Orthopedic Society. The bill is significantly more restrictive than the original bill and requires, in addition to graduation from an accredited 2 or 3 year podiatry medicine residency program, certification in rear foot and ankle surgery by a national certifying board having certifying standards acceptable to the education department; and documentation that he or she has acceptable training and experience in advanced mid-foot, rear-foot and ankle procedures that has been approved by the education department. The bill also calls for a healthcare practitioner database related to podiatrists which will be similar to the physician profiles. In an action for podiatric medical malpractice, a physician may be called as an expert witness at trial.
NURSE ANESTHETIST BILL PASSES BOTH HOUSES
S.5356-D (Young) / A.8392-C (Paulin), a bill that is a title protection bill and does not expand the scope of practice of nurse anesthetists passed both Houses in the closing day of the Session. MSSNY originally opposed the bill, but it was amended based on language negotiated by the Anesthesiologists and the nurse anesthetists and MSSNY was asked to withdraw our objection to the bill. The negotiated language ensures that there is no expansion of scope of practice.
PHARMACISTS WILL BE ALLOWED TO GIVE HERPES ZOSTER VACCINE TO ADULTS
Legislation that would allow pharmacists to provide the herpes zoster vaccines to adults passed both houses of the Legislature Assembly Bill 6301B, sponsored by Assemblymember Amy Paulin and S.3808B, sponsored by Senator Charles Fuschillo, authorizes physicians to issue a patient specific script to pharmacists to allow them to provide the immunization. The bill also allows a nurse practitioner to prescribe and order a specific regimen to a licensed pharmacist, pursuant to regulations developed by the Commissioner of Health, for administering immunizations to prevent acute herpes zoster. The bill also would authorize the pharmacists to administer medications required for emergency treatment of anaphylaxis for influenza, pneumococcal or herpes zoster vaccine. Pharmacists now have the ability to administer, through a non-patient specific script, the influenza and pneumococcal vaccine to adults. MSSNY opposed this measure.
(CLANCY, ELLMAN, DEARS)
CHIROPRACTOR – PHYSICIAN PARTNERSHIP BILL HELD IN ASSEMBLY HIGHER EDUCATION COMMITTEE
A.7403-C (Lopez) / S.5012-C (Fuschillo), a bill that would permit doctors of chiropractic to form limited liability companies with medical doctors, passed the Senate but did not advance from the Assembly Higher Education Committee at the end of Session. MSSNY strongly opposed this bill, saying that it would change the Corporate Practice of Medicine Act.
NATUROPATH BILL HELD IN BOTH HOUSES
S.1803-e (LaValle) / A.3057-C (Perry), a bill that would license naturopathic practitioners and define their scope of practice, did not advance to the floor in either the Senate or Assembly. MSSNY had worked with the sponsors of this legislation to amend the bill and define the scope of practice and other aspects of the bill.
PUBLIC HEALTH AND EDUCATION LEGISLATION
PATIENTS MAMMOGRAPHY REPORT TO DISCUSS BREAST DENSITY PASSES BOTH HOUSES
Legislation has passed in the New York State Legislature which requires that every mammography report given to a patient with dense breast tissue inform the women in plain, non-technical language that she has dense breast tissue and that she should discuss the potential benefit of further screenings with her physician. A. 9586D and Senate 6769B, sponsored by Assemblywoman Ellen Jaffee and Senator John Flanagan, was the result of negotiations between the sponsors, as well as various MSSNY and American College of Radiologists physicians. Research has found several risk factors that may increase a woman’s chance of getting breast cancer. The Centers for Disease Control and Prevention indicate that risk factors include breast density. Women whose mammograms show a larger area of dense tissue than the mammograms of women of the same age could be at increased risk of breast cancer. The magnitude of that risk is still under debate and the question of why breast density carries a risk remains unanswered. Therefore, it is critical that information provided to women about breast density be as clear and scientifically accurate as possible. This bill provides that the written notice must explain that: “Dense breast tissue is very common and is not abnormal. However, dense breast tissue can make it harder to find cancer on a mammogram and may also increase your breast cancer risk.” The notice must inform the patient that a report of their mammography results was sent to their physician, and that the patient should talk to their doctor about their risks for breast cancer and whether “more screening tests might be useful.” MSSNY believes that this legislation would serve as a useful tool in educating women about breast density as a risk factor and serve as opportunity to discuss other risks factors associated with breast cancer. The Medical Society of the State of New York supported this measure.
ELECTRONIC CIGARETTE BAN PASSES BOTH HOUSES
A.9044-B (Rosenthal) / S.2926-B (Johnson), a bill that would ban the sale and distribution of electronic cigarettes to anyone under the age of 18 years, has passed both Houses and will be sent to the Governor for his consideration. MSSNY supported this bill.
BAN ON SMOKING ON PLAYGROUNDS BILL HELD IN SENATE RULES COMMITTEE
A.6451-C (Galef) / S.7627-A (Carlucci), a bill that would ban smoking on playgrounds, where children under the age of twelve years are present, passed the Assembly but was held in the Senate Rules Committee. MSSNY supported this bill.
CPR INSTRUCTION IN SCHOOLS LEGISLATION FAILS IN THE ASSEMBLY EDUCATION COMMITTEE
Legislation that would require cardiopulmonary resuscitation (CPR) to be given as part of the high school curriculum passed the Senate but failed to move forward in the Assembly Education Committee. Assembly Bill 3980A, sponsored by Assemblymember Harvey Weisenberg, did not require students to receive certification in CPR but will ensure students learn the psychomotor skills of CPR. The American Heart Association’s 2010 revised CPR guidelines make it even easier for more people to perform CPR. A greater emphasis is now placed on the simplest step—chest compressions. Its companion measure, Senate Bill 2491A sponsored by Senator James Alessi passed the New York State Senate. Currently, school districts may opt to offer CPR to students and this was cited as a reason for not moving the legislation forward to the Assembly for a vote. The Medical Society of the State of New York adopted policy at its House of Delegates in 2011 that called for “the Medical Society of the State of New York [to] advocate for legislation requiring that high-school students attend a training course in cardiopulmonary resuscitation (CPR) and the use of the automated external defibrillator (AED), using the course guidelines recommended by the American Heart Association and endorsed by the American Academy of Pediatrics”. The Medical Society of the State of New York supported enactment of this legislation.
BILL TO BAN USE OF TANNING BEDS BY CHILDREN UNDER THE AGE OF 17 PASSED BY BOTH HOUSES OF THE LEGISLATURE
Legislation (A.1074, Weisenberg/S. 2917, Fuschillo) which would build upon existing regulations in the use of tanning beds by prohibiting their use by children under the age of seventeen has passed both Houses of the Legislature. Currently, indoor tanning is permitted for children 14 and older with parental consent. However, the weight of scientific evidence shows that salon tanning raises the risk of skin cancer. Melanoma, the most commonly fatal form of skin cancer, makes up only 4% of skin cancers but is responsible for more an 80% of skin-cancer deaths. Using tanning beds before the age of 30 has been scientifically demonstrated to increase one’s risk for melanoma by 75 percent. MSSNY, along with many other Specialty Medical Societies, patient advocacy groups and the American Cancer Society, supported this measure and worked together to achieve its passage.
MSSNY RE-ACCREDITS 23 ON-LINE COURSES ON EMERGENCY PREPAREDESS; PHYSICIANS ENCOURAGED TO TAKE COURSES
The Medical Society has re-accredited 23 on-line courses on biological, chemical, and nuclear agents and courses on the impact of trauma on mental health. The Medical Society has accredited these courses with one or two continuing medical education (CME) credits, and the courses are free to physicians throughout the state. The courses can be accessed here.
Physicians who are new to MSSNY’s CME on-line program will need to register as a new user. Physicians who already registered may continue to use their log on and password. The on-line registration contains instructions on how to view modules and to complete the post-test. A physician’s name and CME certificate can be printed following the successful completion of the post-test. The continuing medical education courses on biological, chemical, and nuclear agents curriculum is designed to assist physicians in obtaining experience in bioterrorism preparedness training. These modules will provide valuable information during any public health emergency involving these agents. Courses include anthrax, pandemic flu, H1N1, chemical overview, and nuclear radiation. The mental health curriculum is designed to assist physicians in treating trauma resulting from terrorism and natural disasters. MSSNY’s Committee on Emergency Preparedness and Disaster/Terrorism has had an instrumental role in providing these programs to New York State physicians. The program has been funded through a grant from the New York State Department of Health. Further information on the MSSNY CME website can be obtained by contacting Pat Clancy at firstname.lastname@example.org or at 518-465-8085.
For more information relating to any of the above articles, please contact the appropriate contributing staff member at the following email addresses:
email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org, email@example.com, firstname.lastname@example.org
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Wednesday, January 18th, 2012
The Consumer Protection Act - Collective Bargaining - is on the Assembly Health Committee agenda, for Thursday, January 19, 2012. Without your help, this bill will not pass.
Email as many committee members as possible below. Tell them to VOTE YES on A2474a.
Richard Gottfried, Chair
Suffolk and Nassau Assembly members in red
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Monday, November 14th, 2011
November 11, 2011 1:15 PM
(AP) ALBANY, N.Y. — New York courts specializing in the state’s 4,000 medical malpractice cases filed each year have begun expanding following the success of a Bronx judge in settling cases early.
The approach, shown to cut court backlogs and save money, has been extended to Brooklyn, Queens and Manhattan, with some Erie County judges getting trained.
“It was proving to be a cost savings to hospitals and directly impacting the indemnity insurance of doctors,” New York Chief Administrative Judge Ann Pfau said.
Starting Dec. 1, Pfau will become coordinating judge of the court system’s medical malpractice segment. The pilot program is using a $3 million federal grant to train more judges in medical issues. Pfau herself will take cases in Brooklyn, where she is an acting state Supreme Court justice in the commercial division. She said it would be good to make the program citywide and makes sense to extend it to Long Island.
Bronx Justice Douglas McKeon, who began focusing on malpractice cases 15 years ago, said he has helped settle more than 1,000 since, with 12 to 15 cases now on the calendar monthly for intense discussions. Once the city’s Health and Hospitals Corp., which runs 11 public hospitals, created its own claims and law department in 2006 and explored settling cases sooner instead of later, the program “really took off,” with a 95 percent settlement rate for the corporation’s cases, he said.
Corporation deputy counsel Suzanne Blundi said they essentially revamped their whole commitment to patient safety, developing systems to improve care, manage claims and decrease payouts, which dropped from $196 million in 2003 to about $130 million last year.
The effort has entailed trying to investigate malpractice claims early on and also expediting settlements, Blundi said.
“If you have a matter that needs to be resolved, getting compensation to the injured person in a timely fashion is important. We see it as a continued relationship with our patients. … OK, there’s an error, and we’re going to help deal with it,” she said.
McKeon said it’s easier for the corporation as a municipal entity. “They don’t have investments they have to get certain returns on. They’re not an insurance company or one of these captive creations some hospitals put together,” he said.
Without close scrutiny by one judge, cases can come back several times before various judges with settlements discussed but doctors refusing to agree, McKeon said. “To me it’s a waste of court resources. … I always felt if you could extrapolate it across the state you could probably save a sizable sum of money.”
Now attorneys generally go through evidence discovery before serious settlement talks begin, Pfau said. “In a malpractice case, all of that discovery is very expensive.”
In one recent case, where a woman was hit by a car, taken to a city hospital and ended up brain damaged, a settlement was reached for about one-sixth of the initial demand and without the hospital admitting liability, Pfau said. At issue was whether the pressure in the patient’s head had been appropriately monitored.
Arthur Levin, director of the Center for Medical Consumers, an advocacy group, said he has questions about the special courts and their negotiated settlements that should be studied. “Even though people are not forced into it, I have no idea how coercive or not the pitch is,” he said.
Leslie Kelmachter, president of the New York State Trial Lawyers Association, said McKeon has put together a very good program, that malpractice issues are often straightforward, and the lawyers can support earlier settlements on behalf of their clients, the injured victims, as long as they are fair. “There shouldn’t be any pressure on the plaintiffs to settle. It should be voluntary,” she said.
It makes sense for the pilot program to target high-population areas with a large number of cases and high hospital malpractice costs, Pfau said. Many cases involve obstetrics and Medicaid patients, sometimes mothers coming to emergency rooms to give birth without any prenatal care, she said.
“What you’re finding is in poorer communities you’re getting higher incidence of this and in poorer communities you’re finding the huge verdicts,” said McKeon, a member of the medical malpractice reform working group of Gov. Andrew Cuomo’s team revamping Medicaid. He said other factors include lawsuits needlessly naming every doctor in a patient’s medical record who had little to do with the case, and preventive medicine’s increase in diagnostic tests, which create more opportunities for poor communications between diagnosing and treating physicians, he said.
Earlier this year, Pfau issued, and the Administrative Board of the Courts approved, new rules for the state trial courts on medical malpractice, calling for settlement conferences 45 days after court papers are filed indicating that the case is ready for trial. Only attorneys fully familiar with the case and authorized to settle it are to appear, and judges may also order insurance representatives and others with an interest to appear.
Federal data showed just over 1,800 medical malpractice payments statewide for $736 million in 2009, down from 2,400 payments for $822 million three years earlier. The New York Public Interest Research Group noted that 10 percent drop occurred even as the number of doctors practicing in the state increased to almost 65,000.
Vice President, Communications
Greater New York Hospital Association
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