MEDICAL SOCIETY OF THE STATE OF NEW YORK

NEWS OF NEW YORKWhat isMOLST?

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Volume 70 • Number 7 • www.mssny.org Providing Information to Assist Physicians in the State of New York July 2014

INSIdE NEWSMSSNY’s Socio-Med Division can get you paid��� page 2

Will Open Payments increase transparency?�������������������page 2

OPMC Directive: Update your Physician Profile���������������� page 2

Medical student Community Service Awards���������������� Page 3

Hospitals Sue HHS over “Sluggish” RAC Appeal ����� page 5

do you encourage your patients to do early advance care planning and complete a health care proxy?

MSSNY Survey: Advance Directives/MOLSTIn New York, physicians are urged to

encourage all persons 18 and older to begin advance care planning discussions early, choose a health care agent and dis-cuss values, beliefs and goals for care.What is MOLst?

MOLST is a clinical process that emphasizes discussion of the patient’s

goals for care and shared medical decision-making between health care professionals and patients who are seriously ill or frail, for whom their physician would not be sur-prised if they died within the next year. The result is a set of medical orders that reflect the patient’s preference for life-sustaining treatment they wish to receive or avoid.

(Continued on page 6)

MeMbers in the neWsKira Geraci, MD, eLecteD tO aMa cOunciL On science anD PubLic heaLth

Kira A. Geraci, MD, MPH, was elected to the AMA’s Council on Science and Public Health at the annual House of Delegates meeting last month in Chicago.

“I am honored to serve on the Council on Science and Public Health, the AMA’s most public face,” said Dr. Geraci. “It is a powerful resource for physicians because it synthesizes medi-cal and scientific knowledge on key public health issues. My passion is to be involved in understanding the science behind

Dr. Kira A. Geraci (Continued on page 3)

a MessaGe frOM PresiDent Dr. KLeinMan:

Sign Up for MSSNY’s Physicians for VeteransOur nation’s veterans have fought to protect

our freedom and way of life. We owe them so much for their efforts, including assuring they get the health care they need when they need it.

A June audit completed by the VA found that 57,000 new VA patients requesting appoint-ments will have to wait as long as three months before a doctor will see them. The audit also showed that another 63,000 in the VA system have not been able to secure appointments.

We are fortunate that there are 13 VA Medical Centers and 49 clinics all across New York State to help our veteran patients get the care they need. The physicians who provide this care at these centers are highly skilled and caring physi-cians, but there may not be enough of them to provide the care all of our veterans need.We neeD yOur heLP

In June, physician delegates to the AMA House of Delegates meeting voted to ask President Obama to enable our veterans to have

coverage for care by physicians outside of the Veterans Affairs (VA) health care system until the VA can provide health care in a timely fash-ion. The delegates also voted to urge Congress to rapidly enact long-term solutions so that eli-gible veterans can always have timely access to entitled care.

As part of the new policy, the physicians also voted to recommend that state and local medical societies develop a registry of physicians who are ready and willing to care for veterans. Many New York physicians in all specialties have already reached out to MSSNY to offer their services to our veterans. That’s why we created the registry, which you can join by visiting our website at www.mssny.org

Our veterans who have served our country should have access to the highest quality care. New York physicians want to be part of the solu-tion to this national crisis to ensure veterans get access to the quality care they need and deserve.

Dr. Auguste Introduces MSSNY President Dr. Kleinman at LIJ Meeting

Dear MSSNY Members:As you know, the 2014 legislative session

has concluded. Through your efforts guided by MSSNY leadership and the collective efforts of MSSNY staff, MSSNY has had a very successful legislative year.

As part of the budget, we: (1) secured the out-of-network bill; (2) secured $127.4M in funding for the Excess Medical Liability program and defeated any programmatic changes which would have negatively operated to deny ongoing physician par-ticipation; (3) defeated the retail clinic bill; (4) defeated proposals which would have imposed additional burdensome regulations and reporting requirements on physician OBS and urgent- care practices; and (5) eliminated the long-standing requirement for obtaining written informed consent in order to give a patient an HIV test.

As the session concludes, we have secured many more victories which dem-onstrate the tangible value of MSSNY to its physician members. These victories are discussed in further detail below but can be quickly listed: we (1) defeated the date-of-discovery statute of limitations and four other Trial Bar regressive-liability bills; (2) defeated a CME mandate for palliative and end- of-life care; (3) defeated scope-of-practice expansion by the podiatrists, dentists, optometrists, pharmacists, and many other non-physician practitioners; and (4) participated in the development of and supported the package of legislation to address the heroin epidemic.

Sustained physician involvement can make a difference. Because of your efforts, we list the many successes that together we have achieved. It is our hope that you will share our successes with your colleagues so that we may continue to build membership

in MSSNY to support even greater legisla-tive accomplishments in the future.

Your Lobby Team, Liz Dears, Moe Auster,

Pat Clancy, and Barbara Ellman

triaL-LaWyer biLLs DefeateD The NYS Assembly concluded its leg-

islative session in the early hours of June 20th without passing any of the myriad of regressive-liability bills teed up for passage much earlier in the year by the Trial Bar. Any one of these bills could have drasti-cally increased the already ridiculously large liability burden shouldered by physi-cians in New York State.

Of particular concern was legislation (S.7130, Libous/A.1056-A, Weinstein) which would change the current statute of limitations for medical malpractice cases, which is 2 ½ years from the date of the injury, to 2 ½ years from the date that the patient discovered the injury. The state’s leading medical liability insurance com-pany informed MSSNY that a Milliman actuarial study of similar legislation indi-cated that it would cause medical liability premiums to be increased by nearly 15%, perhaps even greater.

In addition to this measure, three other bills also reached the floor of the Assembly, including: A.1085 (Weinstein)/S.887 (Bonacic), which could potentially allow for payouts to exceed a jury verdict and thereby increase premium costs; A.2365 (Weinstein)/S.1046 (DeFrancisco), which would unfairly prohibit ex-parte inter-views of plaintiff’s treating physicians; and S.555-A/A.1002-A, which would permit a plaintiff to collect payment from a third-party defendant even though the third party

MSSNY’s 2014 Legislative Successes

(Continued on page 9)

“It’s a great time to be a physician because of all the wonderful advances in patient care,” Dr. Kleinman told the LIJ Annual Business

Meeting. “The Hippocratic oath distinguishes physicians from insurance company executives

whose commitment is to the bottom line.” Dr. Kleinman told the group that membership

in specialty societies is important but all specialties need MSSNY’s backing or they cannot accomplish their goals politically.

Page 2 • MSSNY’s News of New York • July 2014

Not a MSSNYMember?Join Now:

516-488-6100

As part of the Open Payments program, the Centers for Medicare & Medicaid Services (CMS) will soon make data about the financial relationships between the health care industry and physicians (e.g. including medical doctors, doctors of osteopathy, dentists, chiropractors, and others) and teaching hospitals available to the public. Offering this data will create more transparency and allow those inter-ested to use, analyze and monitor it.

Open Payments, previously known as the Sunshine Act, is a federal transparency program enacted by Congress in 2010. Under this program, CMS collects and publicly reports data about payments (“transfers of value”), ownership, or invest-ment interests between drug and device manufacturers and physicians and teaching hospitals. Beginning with the last five months of 2013, CMS will collect this data annually from industry and make it publicly available, downloadable, and searchable. Every year CMS will continue to release this financial information as it becomes available about the prior year (e.g. by June 30, 2015 for 2014 data).

These financial interactions can happen for many rea-sons: research, conference travel and lodging, gifts, and

consulting. They can foster collaboration among physi-cians, teaching hospitals, and industry manufacturers that may contribute to the design and delivery of life-saving drugs and devices. However, they also can potentially lead to conflicts of interest in how health care providers prescribe medications or give medical care.

While CMS doesn’t make assumptions or draw conclu-sions about the reported information, the Agency will take steps to ensure that only accurate information is made public. For example, as part of this initial data collection process, CMS has engaged stakeholders as pilot users to ensure that reporting systems are user-friendly and perform-ing properly.

In addition, CMS will give physicians and teaching hos-pitals an opportunity to be sure that information reported about them is accurate. In order to review the data and make corrections if necessary, physicians and teaching hospitals must first register in CMS’ Enterprise Portal starting on June 1, 2014. Then, starting in July, they must register in the Open Payments system (via CMS’ Enterprise Portal). This voluntary review and dispute period is open for 45 days.

CMS strongly encourages physicians and teaching hospi-tals to register in our Enterprise Portal and Open Payments systems so they can review their specific data. Any data that physicians or teaching hospital dispute, but is not cor-rected by industry within the dispute resolution period, will be included when the data is made public and marked as disputed.

It is important that physicians or teaching hospitals know about this program, how and what financial relationships are reported, and how to answer questions from patients. Visit go.cms.gov/openpayments to get more information about Open Payments (the Sunshine Act) and the resources avail-able to understand the program. Health care providers and others with questions and concerns can be emailed to open-payments@cms.hhs.gov.

This information is provided by the United States Department of Health and Human Services.

Open Payments Sunshine Program Increases Transparency in Health Care

OPMC Taking Action v. Physicians Who Do Not

Update ProfileMSSNY has learned that the 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. Since their last call to these physicians, more than sixty days have passed without these physi-cians taking the required action.

If you haven’t yet updated your physician profile please do so immediately!

Updating your profile is very easy and will take less than 5-10 minutes. The website is: www.health.ny.gov/professionals/doctors/profile_update_req.htm. This is the New York State Physician Profile website. They have a contact number for their Help Desk at 1-888-338-6998 regarding logging in or any other questions you may have regarding updating your profile.

MSSNY’s Socio-Med Division Helped Member to Finally Get $86K Owed by NGS

MSSNY’s Division of Socio-Medical Economics was successful in helping NGS Medicare release its hold of close to $86K for one of our member physicians. The physician wrote to MSSNY VP of Socio-Medical Economics Division Regina McNally, “Thank you so much for your help. Nice to have things all worked out!” The MSSNY mem-ber had moved his medical practice location and filed the proper update material for provider enroll-ment through PECOS. However, somewhere along the line, the address change created difficulty caus-ing Medicare to put a payment hold on his claims. The Socio-Medical Economics Division was able to reach the appropriate NGS Medicare staff to have the enrollment file corrected expeditiously and have the held monies released to the physician.

If you have a claim problem, please call 516-488-6100 ext. 332.

July 2014 • MSSNY’s News of New York • Page 3

our most pressing health issues. CSAPH is critical to the way physicians, and frequently legislative and regulatory agencies, view complex matters in the area of health and medicine.”

“I’ve known Kira for many years and am certain she will bring to the AMA the same enthusiasm, character and determi-nation I’ve come to value in her over the years,” said MSSNY President Andrew Kleinman, MD. “She has served MSSNY in so many vital ways, especially in the interest of public health—notably as chair of MSSNY’s Emergency Preparedness Committee. The AMA is fortunate to have Kira on the Council on Science and Public Health. “

Dr. Geraci earned her MD from Columbia College of Physicians and Surgeons and received her residency training in pediatrics at New York Hospital, where she then completed a two-year fellowship in allergy/immunology. She subsequently earned board certification in both disciplines and has volun-tarily recertified in her specialty of allergy/immunology twice. Additionally, she earned a master’s degree in public health (MPH) in health care policy and management from the New York Medical College School of Public Health.

Dr. Geraci has been in private practice for almost 30 years and joined Westchester Health Associates in 2011. She is listed as a Castle Connolly Top Doctor Metro New York and Westchester County. Dr. Geraci is on staff at New York Presbyterian Hospital, Westchester Medical Center, Montefiore New Rochelle Hospital and White Plains Hospital Center, where she recently completed a five-year term as Chief of Allergy. She holds academic appointments at Weill Medical College of Cornell University and at New York Medical College.

A dedicated member of MSSNY for over fourteen years, Dr. Geraci has held many leadership positions, including chair of MSSNY’s Emergency Preparedness Committee and vice-chair of MSSNY’s Preventative Health Subcommittee. She cur-rently serves on MSSNY committees for quality improvement, emergency preparedness, and preventive medicine and fam-ily health. Previously, she served on the Health Care Reform Committee. She is also a member of MSSNY’s Medical, Educational and Scientific Foundation. Dr. Geraci represented MSSNY at SHIP (State Health Improvement Plan), the NYS Department of Health planning council, for the 2013-17 state health prevention agenda.

LuKe seLby, MD, eLecteD tO aMa cOunciL On MeDicaL eDucatiOn

Luke Selby, MD, was elected to the Resident and Fellow

seat on the AMA’s Council on Medical Education at the annual House of Delegates meeting last month in Chicago.

Dr. Selby is a general surgery resident at North Shore-Long Island Jewish Health System (NSLIJ) in Manhasset, N.Y., and a clinical research fellow in the department of surgery at Memorial Sloan Kettering Cancer Center in New York City. Dr. Selby attended medical school at New York Medical College and is currently taking graduate classes in Clinical and Translational Research at Weill Cornell Graduate School of Medicine. He did his undergraduate work at Bates College in Lewiston, Maine where he majored in biological chemistry.

A member of MSSNY since 2011, Dr. Selby currently serves on the Commission on Membership, the AMA Delegation, and is the Chair of MSSNY’s Resident and Fellow Section. As a medical student he served as chair of MSSNY’s Medical Student Section. He is married to Dr. Sarah Selby, an attending physician in Emergency Medicine at New York Hospital, Queens, and they have a one year old son, Andrew.

hOWarD KerPen, MD, receives natiOnaL aWarD frOM aMerican cOLLeGe

Of PhysiciansMSSNY member Howard O.

Kerpen, MD, FACP, was awarded the Outstanding Volunteer Clinical Teacher Award from the American College of Physicians (ACP) at the organization’s recent annual Convocation ceremony in Orlando, FL.

The Outstanding Volunteer Clinical Teacher Award, established by the ACP Board of Regents in 1997, is bestowed upon a Fellow of the College “who has consistently

volunteered his or her services to teach medical students and residents. This individual demonstrates outstanding teaching prowess, displays exemplary characteristics of care and con-cern for individual patients at the bedside, and serves as a role model and mentor.”

A resident of Oyster Bay, NY, Dr. Kerpen is an internal med-icine physician and Lorber Professor of Medical Education at the Hofstra North Shore-LIJ School of Medicine.

Previously, he was Section Head of Nephrology at Queens Hospital Center, NY and Director of Medicine for the Manhasset Division, Long Island Jewish Medical

Center (LIJMC). He has been an active member of MSSNY since 1978.

Dr. Kerpen is the founding Chair of both the Committee for Innovations in Medical Education and the Bette & Jerome Lorber Center for the Advancement of Medical Education at LIJMC. The Lorber Center aims to develop unique methods to enhance medical education at the undergraduate, gradu-ate and Post-graduate level for internists. Dr. Kerpen is a six time recipient of the LIJMC Department of Medicine Teacher of the Year Award, in addition to their Special Award for Contributions to the Residency Training Program in 2001 and the Lifetime Teaching Award in 2007.

inDerPaL chhabra, MD, naMeD nsLiJ “best vOLunteer teach-er Of the year”

The Residents of the North Shore LIJ Internal Medicine Program named Inderpal Chhabra, MD, “Best Volunteer Teacher of the Year” for 2014. Each year, Residents vote for a physician on the North Shore LIJ faculty and the award is presented at graduation.

“I was at the ceremony to present an award that is given annually to a resident for humanitarian efforts in honor of my grandfather, Dr. Dalip

Singh, a physician in India, “ explained Dr. Chhabra. “And I was caught completely by surprise when they announced that I was the recipient of the “Best Volunteer Teacher” award!”

Dr. Chhabra was instrumental in adding a community based teaching rotation to the residency program at NSLIJ this year. “We train residents about private practice, and how it differs from hospital practice, so that they get exposure and are comfortable with the private practice model,” said Dr. Chhabra. “I teach Residents that all things are possible in pri-vate practice.”

Dr. Chhabra is an Internist in private practice with Lefferts Medical Associates in New Hyde Park. A member of MSSNY since 2000, he has served on various committees, including the Committee on Interspecialty and the Health Information Technology Committee and in 2009, served as Commissioner of Membership. Dr. Chhabra has been a member of MSSNY’s House of Delegates since 2010.

Dr. Howard O. Kerpen

Dr. Inderpal Chhabra

MeMbers in the neWs(Continued from page 1)

Columbia University College of Physicians and SurgeonsMaryl Sackeim, MDSpecialty: Obstetrics and GynecologyMargot Cohen, MDSpecialty: Internal Medicine

Icahn School of Medicine at Mount SinaiAndrew Chow, MD Specialty: Internal Medicine

Stony Brook University School of MedicineWally Ahmad Omar, MDSpecialty: Internal Medicine

SUNY Downstate Medical CenterEmioly R� Blavel, MDSpecialty: Pediatrics

Touro College of Osteopathic MedicineMary Joseph, DO

University at Buffalo, School of Medicine and Biomedical Sciences Ruchi Mathur, MDSpecialty: Family Medicine

University of Rochester School of Medicine and DentistryRebecca L� Levinn, MDSpecialty: Obstetrics and Gynecology

Upstate Medical UniversityDaniella Palermo, MDSpecialty: Psychiatry

Weill Cornell Medical CollegeSuchit H� Patel, MDSpecialty: Radiation-Oncology

MSSNY President Andrew Kleinman, MD, addresses the LIJ Annual Business Meeting. He noted the contributions of many of the LIJ staff

society members as county and MSSNY leaders and asked all to be active in the societies and to contribute their wisdom, energy and good ideas to

problems facing the profession today.

(left to right): Dr. Arthur Fougner, Dr. Inderpal Chhabra, Dr. Joshua Roth, Dr. Michael Ziegelbaum, Dr. Andrew Kleinman and Dr. Louis Auguste

gather at the LIJ Annual Business Meeting.

(left to right): Louis J. Auguste, MD (Queens

County); Michael Ziegelbaum, MD (Nassau County);

Eunice Skelly, MSSNY VP, Membership; Phil Schuh,

MSSNY Executive Vice President; L. Carlos Zapata,

MD, MSSNY Commissioner of Communications.

The Medical Society of the State of New York2014 Medical Student Community

Service Award RecipientsMSSNY’s Community Service Award is given to graduating medical

school students “in recognition of outstanding contributions and selfless service to the community.”

Congratulations to the 2014 Community Service Award recipients:

Long Island Jewish Hospital Business Meeting

Page 4 • MSSNY’s News of New York • July 2014

MEDICAL SOCIETY OF THE STATE OF NEW YORK

NEWS OF NEW YORK

MeDICAL SOCIeTYOF THe STATe OF NeW YORK

Andrew Y. Kleinman, MD President Michael Rosenberg, MD Chairman of the Board Philip A. Schuh, CPA Executive Vice President

COMMUNICATIONS AND PUBLICATIONS

L. Carlos Zapata, MD, Commissioner

NeWS OF NeW YORKPublished by Medical Society of the State of New York

Vice President, Communications and editorChristina Cronin Southard, Editor

csouthard@mssny.org

News of New York StaffJulie Vecchione DeSimone, Assistant Editor

jvecchione@mssny.org

Janice Morano, Marketing Relationsjmorano@mssny.org

Steven Sachs, Web Administratorssachs@mssny.org

Susan Herbst, Page Designer

NeWS OF NeW YORKADVeRTISING RePReSeNTATIVeS

For general advertising information contactChristina Cronin Southard

Phone 516-488-6100 ext 355csouthard@mssny.org

The News of New York is published monthly as the official publication of the Medical Society of the State of New York. Information on the publication is available from the Communications Division, Medical Society of the State of New York, 865 Merrick Avenue, P.O. Box 9007, Westbury, NY 11590.

The acceptance of a product, service or company as an advertiser or as a membership benefit of the Medical Society of the State of New York does not imply endorsement and/or approval of this product, service or company by the Medical Society of the State of New York. The Member Benefits Com-mittee urges all our physician members to exercise good judgment when purchasing any product or service.

Although MSSNY makes efforts to avoid clerical or printing mistakes, errors may occur. In no event shall any liability of MSSNY for clerical or printing mistakes exceed the charges paid by the advertiser for the advertise-ment, or for that portion of the advertisement in error if the primary or essen-tial message of the advertisement has not been totally altered or substantially rendered meaningless as a result of the error. Liability of MSSNY to the advertiser for the failure to publish or omission of all or any portion of any advertisement shall in no event exceed the charges paid by the advertiser for the advertisement, or for that portion of the advertisement omitted if the pri-mary or essential message of the advertisement has not been totally altered or substantially rendered meaningless as a result of the omission. MSSNY shall not be liable for any special, indirect or inconsequential damages, in-cluding lost profits, whether or not foreseeable, that may occur because of an error in any advertisement, or any omission of a part or the whole of any advertisement.

MEDICAL SOCIETY OF THE STATE OF NEW YORK

AT YOUR SERVICEMSSNY’S WeSTBURY OFFICe

Main Phone Number .....................................516-488-6100Toll Free Number ..........................................800-523-4405Main Fax Number .........................................516-488-1267MSSNY Website ........................................www.mssny.org

exTeNSIONS FOR SPeCIFIC SeRVICeSAlliance . ........................................................................396Communications ........................................................... 351Computer Information Systems .................................... 361Member Benefits/Marketing ......................................... 424Membership Information .............................................. 336Medical, Educational & Scientific Foundation ............. 350Office of the Executive Vice President.......................... 397Ombudsman Claims Assistance .................................... 318Physician Records/Credentials ...................................... 367Socio-Medical Economics ............................................ 332

ALBANY OFFICeContinuing Medical Education ..........518-465-8085 ext.17Public Health Committees ................518-465-8085 ext. 11Governmental Affairs ....................................518-465-8085Fax .................................................................518-465-0976

OTHeR NUMBeRSCommittee for Physicians’ Health ................800-338-1833Dispute Resolution Agency ...........................516-437-8134Kern, Augustine, Conroy & Schoppman.......516-294-5432

The NEWS of NEW YORK ISSN 0028-9264, Periodical POSTAGE PAID at Westbury and other additional mailing offices. The NEWS of NEW YORK is published monthly by the Communications Division, Medical Society of the State of New York, 865 Merrick Avenue, Westbury, NY 11590. Please address all correspondence to the Editor. POSTMASTER: Please forward all change of address forms to the Editor, NEWS of NEW YORK, Medical Society of the State of New York, 865 Merrick Avenue, Westbury, NY 11590. Subscription, $36.00 non-members, $18.00 members.

PresiDent’s cOLuMn

MSSNY just saved New York internists up to $9,500 a year, more than 10 times the cost of their membership dues. For many other physicians across New York State, the savings were far greater, as much as 100 times their initial MSSNY membership investment.

On June 20, the New York State Legislature completed its 2014 Legislative Session, and once again your society achieved a significant

number of notable victories that are set forth in much greater detail below.

Among these victories is defeat of a number of measures that had advanced to the floor of the Assembly and had been aggressively pursued by trial attorneys to expand liability against physicians. If enacted these bills could have triggered a cumulative staggering 25% increase in your liability pre-miums at a time when physicians cannot tolerate any further increases in their premiums if they are going to be able to continue to deliver the care their patients are counting upon. Your MSSNY helped to organize a coalition of hospitals, insurers and physician specialty societies to work together to help to defeat these bills despite the significant pressure placed on the Legislature to pass them.

These bills included measures which would have changed the statute of limitations in medical liability actions, limited the ability of a physician sued for malpractice to interview

key witnesses, and changed contribution rules in cases that involved multiple defendants.

I know that’s a lot of legal “mumbo-jumbo,” but the bottom line is that as a result of advocacy by your Medical Society, physicians were spared from untenable increases which could have caused many practices to fold. Here are but a few examples:

• A Syracuse general surgeon would have faced a premium increase of over $9,400;

• A Long Island internist would have faced a premium increase of nearly $9,500;

• A mid-Hudson Valley orthopedic surgeon would have faced a premium increase of over $17,000

• A Queens general surgeon would have faced a premium increase of nearly $32,500

• A Staten Island Ob-GYN would have faced a premium increase of over $48,000

• A Long Island neurosurgeon would have faced a pre-mium increase of nearly $83,000

Again, this is but one of numerous advocacy victories that your society has achieved for you and a tangible dollar benefit you can highlight to others who are not members of MSSNY.

Unfortunately, too many reap this benefit who do not pay for it. Please remind your colleagues the importance of sustaining a strong medical society to fight for you and your patients.

We cannot take for granted that there will always be a strong MSSNY to continue to fight for you.

Andrew Y. Kleinman, MD

MSSNY Saves Internists Up to $9500 Per Year!

Myssny Pac

MSSNY and MSSNYPAC delivers real results for phy-sicians and patients. But we need more of your support if we are to continue to be suc-cessful in the future!

MSSNY and its MSSNYPAC have had a very productive year. As part of the budget, we: (1) secured the Out of Network bill; (2) secured $127.4M in funding for the Excess Medical Liability program and defeated any programmatic changes which would have negatively operated to deny ongoing physician participation; (3) defeated the retail clinic bill; (4) defeated proposals which would have imposed addi-tional burdensome regulations and reporting requirements on physician OBS and urgent care practices ; and (5) elimi-nated the long-standing requirement for obtaining written informed consent in order to give a patient an HIV test.

As the Session winds down, we have secured even more significant victories which illuminate the tangible value of membership in MSSNY and in MSSNYPAC. These victo-ries include:

• defeated legislation – all of which had gotten to the floor of the NYS Assembly—which would have cumu-latively increased physician medical liability premiums by 25% including:

• A. 1056A, Weinstein/S. 7130, Libous, the date of dis-covery statute of limitations bill;

• A.1085,Weinstein)/ S.887, Bonacic, which could poten-tially allow for payouts to exceed a jury verdict and thereby increase premium costs;

• A.2365, Weinstein/ S.1046, DeFrancisco, which would unfairly prohibit ex-parte interviews of plaintiff ’s treat-ing physicians; and

• S.555-A, DeFrancisco/A.1002-A, Weinstein, which would permit a plaintiff to collect payment from a third-

party defendant even though the third party defendant had not been sued in the first place which could result in physicians and hospitals pay-ing for judgments when they are not responsible which could potentially allow for Medical liability payouts to

exceed a jury verdict and thereby increase premium costs,

• defeated a CME mandate for three hours of education every two years on palliative and end of life care;

• defeated scope of practice expansion by the podiatrists, dentists, optometrists, pharmacists and many other non-physician practitioners; and

• participated in the development and supported the package of legislation to address the heroin epidemic.

Now that Session has concluded, the summer and fall include many opportunities for MSSNYPAC and its mem-bers to become visibly involved in the upcoming elections. We urge you and members of your family and colleagues to do so. It is a rewarding experience for all.

Over the summer months, MSSNYPAC’s State and Federal Candidate Evaluation Subcommittees will be hard at work scrutinizing the candidate’s records with a view toward making endorsement recommendations to the MSSNYPAC Executive Committee. These endorsements will be finalized in September in order to assist those who have demonstrated through their actions a commitment to the goals and values of organized medicine.

Most importantly, MSSNYPAC cannot continue to achieve these victories if we cannot secure the finan-cial commitment of all of your to become a member of MSSNYPAC. We urge those who have not yet joined to do so immediately.

MSSNYPAC Achievements Bring Real Value To Physicians

July 2014 • MSSNY’s News of New York • Page 5

Hospitals Sue HHS Over Sluggish RAC Appeals

Question: What, if anything, can be done to remedy the slow RAC appeals process?

Answer: All providers’ cash flow is being seriously affected by the slow RAC appeals process. Recently, administrators at Baxter Regional Hospital in Mountain Home, Arkansas joined two other hospital-care providers and the American Hospital Association in a federal lawsuit against HHS asking a judge to force the agency to meet its statutory requirement to decide Medicare-payment appeals within 90 days instead of the current average of 16 months. Baxter Regional says it has so much money tied up in endless Medicare appeals it cannot afford to replace the roof over its surgery department or buy new beds for its intensive-care unit.

It is estimated that some hospitals could wait up to five years to get decisions on routine payments because of a massive backlog in the appeals process that has been created by the aggressive post-payment review program known as recovery auditing. That is due in part to HHS’ administrative law judges announcing a two-year moratorium on docketing new Medicare appeals for hospitals.

The auditing program has resulted in a massive increase in appeals that has delayed timely deci-sions, but hospitals continue to appeal because they say they win 72% of the cases that make it to HHS’ administrative courts. In 2009, before the national launch of the RAC program, HHS’ administrative courts received 35,831 appeals of Medicare payment decisions. However, in 2013, that number jumped to 384,651, according to statistics from HHS.

As this is the first federal lawsuit challenging HHS to administer payment appeals within 90 days, its decision could have a wide reaching impact on all providers and spur multiple simi-lar lawsuits by medical societies and groups. The case is AHA v. Sebelius, filed in U.S. District Court in Washington, DC. The other plaintiffs are seven-hospital Covenant Health, Knoxville, Tenn.; and 139-bed Rutland (Va.) Medical Center. We will be following this litiga-tion closely to determine what effect it may have on individual providers and provide updates in future publications.

If you have any questions, please contact our Managing Partner, Michael J. Schoppmann, Esq at 1-800-445-0954 or via email at MSchoppmann@DrLaw.com.

PRIVATE HEAlTH PlANS PREPARE TO MAKE PAYMENT dATA ACCESSIblE TO PUblIC

On the heels of the Medicare release of payment data, a new initiative by three of the country’s largest health plans has the potential to transform the accessibility of claims payment data, according to healthcare finance experts. UnitedHealthcare, Aetna and Humana recently announced a partnership with the Health Care Cost Institute (“HCCI”), a not-for-profit group, to create a payment database that will be available to the public for free. Experts say cost transparency is being spurred by a num-ber of developments in the healthcare sector. The trend towards high-deductible plans is giving consumers a greater incen-tive to understand how much healthcare costs and to utilize it more efficiently. In addition, the launch of the exchanges under the Patient Protection and Affordable Care Act has brought unprecedented attention to the difficulties faced by individuals in shopping for insurance coverage.

NEW PROPOSEd RUlE SEEKS TO REVISE THE OFFICE OF INSPECTOR GENERAl’S (“OIG”)

ExClUSION AUTHORITIESThe proposed changes to the exclusion regulations at 42 CFR

part 1001 to codify authorities under the Medicare Prescription Drug, Improvement, and Modernization Act of 2003 (“MMA”) and Affordable Care Act (“ACA”) and make technical changes to existing regulations. Specifically, section 949 of MMA and section 6402(k) of ACA amended section 1128(c)(3)(B) of the

Act to expand OIG’s waiver authorities. Also, ACA provided that exclusion may be imposed for (a) Conviction of an offense in connection with obstruction of an audit; (b) Failure to sup-ply payment information; and (c) Making, or causing to be made, any false statement, omission, or misrepresentation of a material fact in applications to participate as a provider of services or supplier under a Federal health care program. ACA also established a new authority at section 1128(f)(4) of the Act for OIG to issue testimonial subpoenas in investigations of exclusion cases under section 1128 of the Act. In addition to the changes under the ACA, and pursuant to section 1128(g)(1) of the Act, another proposed change is the modification to the reinstatement rules for individuals excluded as a result of los-ing their licenses to allow them to rejoin the programs earlier when appropriate.

OFFICE OF MEdICAId INSPECTOR GENERAl (“OMIG”) RElEASES COMPlIANCE AlERT FOR

UPCOMING CERTIFICATION OblIGATIONSOMIG recently issued a Compliance Alert strongly recom-

mending that all Medicaid providers conduct a self assessment of their compliance programs annually. A self-assessment will maximize a provider’s opportunity to make improvements, cor-rections or refinements to their compliance programs prior to the December 2014 certification period.

Providers may use OMIG’s Compliance Program Assessment Form, or any other appropriate tool, to assist them

in conducting a self-assessment of their compliance program. The Compliance Program Assessment Form may be found on OMIG’s Web site within the Compliance Library on the Compliance landing page at http://ow.ly/wSqJs. The results of the Medicaid provider’s self-assessment, among other things, will assist the Medicaid providers determine if it can certify that its compliance program is effective or if its compliance program is not effective. If the self-assessment is completed mid-year and the provider’s self-assessment identifies any ele-ment of the SSL § 363-d and Part 521 is not being met, the provider still has time to implement corrective action on a par-ticular element in order to certify that its compliance program is meeting all the requirements in December. Providers should note that the mandatory compliance program obligation set out in SSL § 363-d and Part 521 is continuous for providers that must have a compliance program. The certification must be completed upon enrollment with New York State in the Medicaid program and during the month of December each year thereafter. The certification must be made to the New York State Department of Health, on a form provided by OMIG on its web site that a compliance program meeting the require-ments of the regulation is in place. For a link to the entire OMIG Compliance Alert see http://ow.ly/wSqEa.

For more information on the above items, contact Kern Augustine Conroy & Schoppmann, P.C. at 1-800-445-0954 or via email at info@DrLaw.com.

Payment Data Goes Public; Revision of exclusion Authorities; OMIG Compliance Alert

MSSNY Survey: Advance Directives/MOLST

Page 6 • MSSNY’s News of New York • July 2014

Are you aware of New York’s MOLST (Medical Orders for Life-Sustaining Treatment) form and process?

If yes, do you screen patients and begin thoughtful MOLST discussions when appropriate?

Do you agree with the proposal that would require Medicare beneficiaries to sign advance directives as a condition of Medicare enrollment?

Are you aware of billing codes that cover insurance payments for initiating these end-oflife discussions with patients?

MOLST is approved for use and must be followed by all providers in all clinical multiple settings including the com-munity. MOLST is the only medical order form approved under NYSPHL that EMS can follow both DNR and DNI orders in the community.

eMOLST is an electronic form completion and process documentation system for NYDOH-5003 MOLST form that serves as NY’s eMOLST Registry. The web-based application includes programming to eliminate errors, guides conversa-tions between clinicians and the medical decision-maker and family, the ethical framework & legal requirements for mak-ing decisions regarding CPR and life-sustaining treatment, and documentation of the discussion. eMOLST may be used with paper records, integrated in EMR or hybrid system, allows for electronic signature for providers and for the form to be printed for needed workflow in the paper world.

For more information, visit www.compassionandsup-port.org/index.php. Under the direction of MSSNY member Dr. Patricia Bomba, CompassionAndSupport.org serves as a Technical Assistance Center, Professional & Public Resource Center, & Education Center for MOLST & Community Conversations on Compassionate Care (CCCC).MOLst/eMOLst screeninG QuestiOns (aLiGn With nysDOh-5003 MOLst anD DsriP)

• Would you be surprised if the person dies in the next year? • Does this person have one or more advanced chronic con-

dition or a serious new illness with a poor prognosis?• Does the person live in a nursing home or receive long

term care services at home or in an assisted living facility?• Does the person express a desire to receive and avoid any

or all life-sustaining treatment?• Does this patient have decreased function, frailty, pro-

gressive weight loss, >= 2 unplanned admissions in last 12 months, have inadequate social supports, or need more help at home?

POLst vs. MOLst• POLST: Physician Orders for Life Sustaining Treatment

– different states use different names to describe the state POLST program: such as MOLST, POST, LaPOST, MOST

• MOLST: New York State’s Endorsed POLST pro-gram meets the established national endorsement requirements.

• POLST Paradigm: The National POLST Paradigm embodies and promotes the essential elements of a POLST Program. The POLST Paradigm reflects the full process of communication and shared decision making that is documented in a POLST form meeting estab-lished endorsement requirements.

• POLST Program: refers to how the POLST Paradigm is developed and implemented in a specific state or region.

referencesBomba, P.A., Kemp, M. and Black, J.S. POLST: An

improvement over traditional advance directives. Cleveland

Clinic Journal of Medicine. July 2012, Vol. 79, Issue 7, p. 457-64.

Bomba, P.A. Landmark Legislation in New York Affirms Benefits of Two-Step Approach to Advance Care Planning Including MOLST: A Model of Shared, Informed Medical Decision-Making and Honoring Patient Preferences for Care at the End-of-Life. Widener Law Review, 2011, Volume XVII Issue 2, 475-500.aDvance care PLanninG: fOr PrOfessiOnaLs

Honoring patient preferences is critical to providing qual-ity end-of-life care consistent with the individual’s values and beliefs, based on sound informed medical decision-making and evidence-based medicine.

In 1991, the federal government passed the Patient Self-Determination Act (PSDA), guaranteeing individuals the right to make health care decisions and indicate preferences regarding life-sustaining treatments. The PSDA requires any health care facility receiving federal funding to inform patients about advance directives. More importantly, patients should be counseled regarding the importance of completed advance directives. Studies have demonstrated that physi-cian counseling markedly increases the completion rate of advance directives.

Unfortunately, advance directives have their own issues. Advance directives are not widely utilized. The advance directive completion rate in the United States has not significantly increased since the passage of the Patient Self-Determination Act. In 1991, the year the PSDA passed, 75% of Americans approved of a living will, yet only 20% had some form of advance directives. A 2002 study showed no improvement in the Advance Care Directives completion rate. The completion rate remained at 15-20%. Completion rates were no better for higher risk individuals. Only 20% of nursing home residents had any form of advance direc-tive. A November 2005 poll by the Pew Research Center for the People and the Press revealed Americans are increasingly likely to plan for future health care. A recent poll performed after the Schiavo case unfolded before the nation indicated 29% of Americans have advance directives.

Meanwhile, many Americans die in pain, hospice remains underutilized and patients continue to suffer needlessly at the end of life. Research suggests a need for more comprehen-sive, system-based approach to ensure effective advance care planning and end-of-life decision-making.

The National Quality Forum Framework and Preferred Practices for Quality Hospice and Palliative Care outlines seven preferred practices for advance care planning. Adapted for New York:

• Document the designated agent (surrogate decision maker) in a Health Care Proxy for every patient in pri-mary, acute and long-term care and in palliative and hospice care.

• Document the patient/surrogate preferences for goals of care, treatment options, and setting of care at first assess-ment and at frequent intervals as condition changes.

• Convert the patient treatment goals into medical orders and ensure that the information is transferable and applicable across care settings, including long-term care, emergency medical services, and hospital, i.e., the Medical Orders for Life-Sustaining Treatment—MOLST, an endorsed POLST Paradigm Program.

• Make advance directives and surrogacy designations available across care settings: eMOLST, a statewide data source for SHIN-NY.

• Develop and promote healthcare and community col-laborations to promote advance care planning and completion of advance directives for all individuals. e.g. Respecting Choices and Community Conversations on Compassionate Care.

• Establish or have access to ethics committees or ethics consultation across care settings to address ethical con-flicts at the end of life. (special requirements exist with Family Health Care Decisions Act)

• For minors with decision making capacity, document the child’s views and preferences for medical care, including assent for treatment, and give them appropriate weight in decision making. Make appropriate professional staff members available to both the child and the adult decision maker for consultation and intervention when the child’s wishes differ from those of the adult decision maker. (aligns with Family Health Care Decisions Act)

Healthcare, legal and all community professionals have an opportunity and professional obligation to collaborate and make these preferred practices a reality in New York State.

To increase the completion rates of advance directives, pro-fessionals need to remove professional barriers to advance care planning discussions.

A self-assessment of potential barriers to initiating conver-sations will help health care professionals overcome them. Consider the barriers that keep health care professionals from engaging in the process. Ask yourself the following questions:

• Are you uncomfortable discussing death?• Do you believe that “accepting mortality” is “giving up hope”?

• Are you afraid that a discussion about death will “make it happen”?

• Are you unwilling and/or unsure how to broach the topic?• Do you understand the benefits of advance directives and

advance care planning?• Are you able to find reliable resources related to advance

directives and advance care planning?• Have you completed advance directives and shared your

wishes with your family, your physician and trusted individuals?

Conversations should be based on the individual’s behav-ioral readiness to complete an advance directive.

Reprinted with permission from CompassionAndSupport.org

(Continued from page 1)

MSSNY Survey: Advance Directives/MOLST

July 2014 • MSSNY’s News of New York • Page 7

in suPPOrt Of MOLst/aDvance Directives/heaLth care PrOxiesMaking everyone in the country do this is a very important step in the right direction. We should stop hospitals from making money on false hopes.

Minimally, hospitals, nursing homes, and outpa-tient medical care facilities including physician office practices should be required to have a policy on MOLST that includes a method of publicizing that policy to its patients. Also, NYS should develop a standard for basic information to be provided to all patients before they sign directive – especially the fact that surviving a cardiac arrest often involves anoxic permanent brain damage.

I have many such discussions and use health care proxy forms and out of hospital DNR forms. Most of my patients die with hospice care. The length of time spent with these issues is exces-sive but important.

The MOLST form is poorly constructed, but serves a very useful purpose. I use it extensively but wish it was updated to fix the problems it now contains.

I am a pediatric hematologist/oncologist. We have been using MOLST forms since they emerged, even though they are sometimes cum-bersome for use with pediatric patients.

Virtually all of my patients have signed Health Care Proxies, and I review them with the patients at the time of their annual exams.

It is important to realize that a number of hospi-tals in the state still discourage the routine use of MOLST forms, which hinders their uptake in the community. This needs to be rectified.

I don’t know about these orders, but a health care proxy is the first step and should be part of this process.

MOLst is a Distant iDeaLI am not a fan of the MOLST form, but do want all patients to have these discussions with their proxies before they end up very ill in the ER. I do not like doing these forms in the ER. And, I would love it if primary care doctors would address the fact that people change their minds when they are actually sick in the ER and they should prepare them to answer these questions when they are very ill. So many times patients say, “Well, if it is going to be hopeless, then I don’t want you to do anything.” It doesn’t work like that.

Seems superfluous to the normal activities of practicing internists and/or primary care physicians.

Waste of time as young people don’t even care about these issues. Those that claim they do will do it for temporary appeasement of the provider.

I have gone through the MOLST process several times for my developmentally disabled patients. It is HORRIBLY TIME CONSUMING. OPWDD will not sign off on MOLST unless the person has a terminal condition, even if this is the guard-ian’s wishes, thus all people with developmental disabilities must have life sustaining treatment until they have a terminal condition that two MDs have signed off on. I had one patient resuscitated while waiting for the MOLST paperwork to be completed while in the hospital. There needs to be a better alternative that is faster and takes the patient’s/guardian’s wishes into consideration before they have a terminal condition.

MOLST for most practical purposes is still a distant ideal. Simple HCPs and DNRs are dif-ficult enough for most patients to grasp. Perhaps MSSNY and/or the AMA could place advertise-ments/education on these items in popular TV shows?

All should have a PROXY. Advanced directives are not the answer.

I think the MOLST form is cumbersome, illogical, has a horrible color and it should be scrapped. Patients NEVER bring it with them when they are hospitalized. I always have to repeat them. I think they are a step backwards and that they are a typical product of a committee.

Simplify, Simplify, Simplify.

Yet another responsibility dumped on physicians.

MOLst eDucatiOn anD traininGI am a medical educator full time and do not practice. This information would be of great importance in both undergraduate and gradu-ate medical education. Efforts should be made to disseminate this information to the medical schools and residency programs.

I’ve been handing out the “5-Wishes” for years, but didn’t realize there is a disclaimer in it that revokes all that the patient has requested if mentally out of it.

How about instead we treat people like adults, EDUCATE them about the benefits of advanced directives and let them make informed decisions.

Physicians should practice these skills with each other in a small group format, and appropriate documents should be available as a link on all EHRs.

I encourage colleagues to learn more about psychiatric advance directives.

I would like for the patient to have access to local public forums with the primary care physi-cians and hospital medical staff in attendance to promote this concept to the individual patient.

In addition to IM, I am also boarded in pulmo-nary, critical care and palliative care medicine. I indicated that I’m not interested in training, but would be happy to be involved in the develop-ment of training for physicians.

I think that these issues are best handled by the patient’s primary care physician.

KeeP the feDs Out! Let’s stop forcing people to do things like the proposal to REQUIRE Medicare beneficiaries to sign advanced directives. People paid money into the system and deserve to get this money back.

This is just another catch phrase – ”Shared treatment.” Patients go to the doctor because they need their advice. If they knew medicine, they wouldn’t have to go. It’s just adding more responsibility to the doctor. And once again, the work of non-medical professionals telling medi-cal professionals what to do.

The state and feds want too much control. They only care about the money. Not the patient, their wishes, or the doctor patient relationship.

I think that making advance directive comple-tion a requirement to get health insurance is unethical.

Some patients are just not ready. It is up to the patient, their family and their physician to decide when they are ready, not the insurance compa-nies or in the case of Medicare, the government.

Just nOt reaDy tO Discuss the issue/nO tiMeThe greatest obstacle to initiating end-of-life discussions is obviously the lack of time. I usu-ally recommend that patients look into advance directives/health care proxy completion on their own and refer them to appropriate websites. I bring up the subject and many patients and their families are not ready to discuss these

What is your specialty?

things so I give them information and make a note to readdress things at the next visit. It is usually an evolving process. It’s often difficult to say what you want and then actually have it hap-pen. A lot of times people change their mind. I tell them I’m there to guide them. I reinforce that DNR is not “Do Not Treat.”

The biggest obstacle to providing more advanced directives/HCP/MOLST discussions is the lack of time in pri-mary care practices... Something else always seems to take priority.

More often than not, it’s too late when the subject is brought up, and there is a lack of consensus among next of kin. This subject is too important to be left to family members whose motivations may not be in the best interest of the patient.

Note: Some quotes have been edited for space and clarity.

Survey Comments

The Medical Society of the State of New York (MSSNY) and the New York State Academy of Family Physicians (NYSAFP) announced the findings of recently conducted surveys on health insurer step therapy proto-cols for prescription medications. Responses were received from over 400 physicians prac-ticing throughout New York and across many physician specialty areas. Each organization issued its own survey to members, yet the phy-sician responses were remarkably consistent.

Both surveys found that existing insurer step therapy protocols delay and adversely affect patient care, are challenging and time consum-ing and limit clinical judgment in determining what medication will be most effective for patients. 90% of physicians indicated that step therapy protocols at least “sometimes” adversely affected their patients and 46% indi-

cated that it “frequently” adversely affected patients. The surveys also found that 94% of respondents support the concept of requiring insurers to provide an expedited process to exempt patients from step therapy protocols when the drug they prescribed is medically necessary.

“Imposition of step therapy protocols, also known as ‘fail first,’are one way among many that insurance companies are limiting needed patient care and treatments to enhance their bottom line,” said Dr. Andrew Kleinman, MD, President of MSSNY. “We have heard from many physicians regarding the difficulties they face from insurers when they and their staff seek to assure their patients have coverage for the prescription medications they need.

“The surveys further demonstrate the fre-quency by which insurer rules that require

patients to ‘fail first’ on certain medications can have serious consequences for their health,” continued Dr. Kleinman. “We need legislation or regulatory action to assure our patients can get the medications they need without having to needlessly wait weeks or months to comply with insurance company protocol.”

Step therapy is a utilization management tool that health insurers commonly use to control spending on prescription drugs. It functions as a coverage restriction placed on prescription drugs by health plans. These poli-cies require that before the insurer will cover drugs initially prescribed by a physician, the patient must first try other (sometime mul-tiple), generally less expensive drugs to treat the patient’s condition to see if they will be effective.

“The survey findings are very disturbing.

Patients are being forced to fail multiple times, sometimes for months at a time on ineffective medications before health insurers will cover the right medication to treat conditions,” stated NYSAFP President, Raymond Ebarb, MD. “Our members view it as central to our role as family physicians to be advocates for our patients. Time is often of the essence for our patients with serious and debilitating illnesses. We need a clear, fair process that puts medical decision making back in the hands of physi-cians so patients get the medications that most effectively address their needs.”

As supported by the MSSNY and NYSAFP surveys, step therapy restrictions are imposed by most health insurers in the State and are applied to prescription drugs treating a wide range of diseases and conditions including autoimmune diseases, cancer, diabetes, HIV/AIDS, mental health, treatment of pain and many others. Included in the list of drugs iden-tified by physicians as being subject to step therapy even included medications such as suboxone which is used to treat opioid addic-tion – a major focus in New York this year. Patients need access to these medications without hurdles or delays.

Legislation has been introduced in New York to address this serious and widespread issue. The bill (S.2711-A/ A.5214-A) is spon-sored by Senator Catharine Young (R-Olean) and Assemblyman Matthew Titone (D-Staten Island) and would establish two simple patient protections:

• A clear and abbreviated process that pre-scribers may use to override a step therapy protocol in cases where evidence demon-strates that it is medically necessary; and

• A limit on the amount of time a patient can be required to try different medi-cations. This legislation applies to commercial plans regulated by the State and is supported by MSSNY, NYSAFP and a coalition of patient advocacy organizations, other health providers including Roswell Park Cancer Institute. It is currently under review in the Insurance Committee in each house.

Key finDinGs Of the Mssny & nysafP surveys:

• MSSNY: Over 64% of physicians said only some health insurers permit them to attempt to override a step therapy protocol and 30% said none of the insurers they work with allow them to do so;

• MSSNY: Over 93% of physicians said it was “challenging” or “extremely difficult” to override health insurers’ step therapy protocols to assure their patients get the medications they need;

• NYSAFP: Over 98% of physicians said the process to exempt patients from step therapy requirements was “challenging” or “extremely challenging;”

• MSSNY: Over 50% of physicians said it can take a minimum of 2 days to more than one week to override an insurers’ step therapy protocol;

• NYSAFP: Over 56% of physicians said the process to exempt patients from step therapy protocols can take a minimum of 1-2 weeks or longer;

• MSSNY: 65.5% of physicians said that they had to repeat a step therapy protocol for the same patient;

• NYSAFP: When asked how step therapy policies affect patients, more than 95% of physicians said they delay access to appro-priate therapies, 64% said they decrease medication adherence, and nearly 61% said they increase non-medication costs.

Page 8 • MSSNY’s News of New York • July 2014

Physician Surveys Find Health Insurer Step Therapy Protocols Harm Patient CareOrganizations Urge Lawmakers to Establish a Fair and Expedited Override Process

July 2014 • MSSNY’s News of New York • Page 9

BERGMAN, Sabina; Brooklyn NY. Died March 15, 2014, age 93. Medical Society County of Kings.

CHEN, Chun Siang; New York NY. Died January 28, 2014, age 60. New York County Medical Society.

CHRISTY, Nicholas P.; Killingworth CT. Died April 26, 2014, age 90. New York County Medical Society.

CUTLER, Paul; Niagara Falls NY. Died May 08, 2014, age 72. Medical Society County of Niagara.

DEB, Sanjay Kumar; Williamsville NY. Died February 27, 2014, age 75. Erie County Medical Society.

FARCHIONE, Louis Arthur Sr.; Syracuse NY. Died April 03, 2014, age 90. Onondaga County Medical Society.

FITZGERALD, John Robert; Rochester NY. Died April 30, 2014, age 93. Monroe County Medical Society.

KARLIN, David Bernard; New York NY. Died May 21, 2014, age 85. New York County Medical Society.

KING, Warren L.; Boca Raton FL. Died May 23, 2014, age 88. Nassau County Medical Society.

KUSHNER, Roger Sinclair; Lewiston NY. Died May 25, 2014, age 79. Medical Society County of Niagara.

MARLOW, Carl E.; Liverpool NY. Died April 30, 2014, age 92. Onondaga County Medical Society.

MC CUE, Daniel J.; Buffalo NY. Died February 20, 2014, age 98. Erie County Medical Society.

SAUNDERS, David Giles; East Greenbush NY. Died April 28, 2014, age 77. Onondaga County Medical Society.

Obituaries

aLLianceMSSNY Alliance To Host North east Regional Meeting

The Genesee Grand Hotel in Syracuse, New York will be the venue for the AMA Alliance N.E. Regional Leadership Conference September 26-28, 2014.

AMSSNY President Joan Cincotta (Onondaga) is working with AMA Alliance members and state Alliance members to structure an informative event that will include excursions to local sites of interest including lunch at a local winery and a tour of the Stickley Furniture factory. Sessions will include legislative issues and strategies, the medical marriage and fam-ily and model community health initiatives. All physician spouses and domestic partners are invited to attend.

We look forward to seeing you and spouses from our neighboring states at this exciting event. More information and registration will be available in the next issue of News of New York, on the AMA Alliance website at www.amaalliance.org or by contacting our Executive Director Kathleen Rohrer at krohrer@mssny.org or at 1-800-523-4405-ext396.

SAVe THe DATe! We will see you in Syracuse!

defendant had not been sued in the first place and which could result in physicians and hospitals paying for judgments when they are not responsible.

In defeating these bills, MSSNY worked in collaboration with GNYHA, HANYS, MLMIC, and several specialty societies, including principally the NYS Society of Anesthesiologists, the NYS Academy of Family Medicine, the American Congress of Obstetrics and Gynecologists, the NYS Psychiatric Association, the New York Chapter of American College of Physicians, and the NYS Society of Orthopedic Surgeons, all of whom devoted both staff time and financial resources to this effort. (The Division Of Governmental Affairs)cMe ManDate biLL DefeateD

Legislation which would have required all physicians to take three hours of continuing medical education every two years has failed in the New York State Assembly. S.7660, sponsored by Senators Kemp Hannon and George Maziarz, passed the Senate on June 9th. Its companion measure A.1124A, spon-sored by Assemblymember Linda Rosenthal, was not voted on by the full Assembly. Additionally, another identical bill, A.9878, sponsored by Assemblymember Rosenthal, was in the Assembly Higher Education Committee and also failed to move.

The bill would have required physicians and other prescribers to take a three-hour course every two years. Curricula would have included: I-STOP and drug enforce-ment administration requirements for prescribing controlled substances; pain man-agement; appropriate prescribing; managing acute pain; palliative medicine; prevention screening and signs of addiction; responses to abuse and addiction; and end of life care. Over 2,000 messages either emailed or called in to the Assembly by physicians to express their opposition to the measure.(Clancy, Dears)nys LeGisLature, GOvernOr reacheD aGreeMent On herOin PacKaGe; biLL incLuDes PrOvisiOns reQurinG insurance cOveraGe fOr treatMent

The New York State Legislature and Governor Andrew Cuomo reached agree-ment and passed legislation this week to address the growing heroin epidemic in New York State. Included in that package of bills was S.7912/A.10164, sponsored by Senator James Seward and Assemblymember Michael Cusick. The bill would clarify that health insurance coverage must provide for substance-abuse disorder treatment services and improve the utilization-review process for determining insurance coverage. The measure would also require insurers to con-tinue to provide coverage throughout the entire appeals process. The Medical Society of the State of New York strongly supported this measure.

For the last several months, the New York State Senate and the New York State Assembly have held a series of forums and roundtables on heroin and opiate addiction. Several MSSNY physician leaders, includ-ing Suffolk County psychiatrist Dr. Frank Dowling, Cobleskill internist Dr. Joseph Sellers, and Saratoga psychiatrist Dr. Ed Amyot, represented MSSNY at these hear-ings. The issue of health insurance coverage has been at the forefront at these various sessions.

Other bills included improving access to care by requiring insurers to use recognized,

evidence-based and peer-reviewed clinical review criteria, approved by the State Office of Alcoholism and Substance Abuse Services (OASAS); the creation of a new demon-stration program aimed at designing a new model of care that would divert patients who do not need in-hospital detoxification, but still need treatment, to appropriate services and facilities; the creation of a wraparound-services demonstration program to provide services to adolescents and adults for up to nine months after the successful comple-tion of a treatment program; and a provision that would allow an assessment of a youth who poses a danger to him/ herself, or oth-ers as part of Person In Need of Supervision (PINS) diversion services. Additionally, the package included bills to create a new crime in the penal code of “fraud and deceit related to controlled substances” to crack down on doctor shopping, criminalizing behavior by those individuals who obtain or attempt to obtain a controlled substance or a prescrip-tion by misrepresenting themselves as a doctor or pharmacist, or presenting a forged prescription; adds the “criminal sale of a prescription for a controlled substance or of a controlled substance by a practitioner or pharmacist” as a designated offense for pur-poses of obtaining eavesdropping warrants as well as adding the offense as a “criminal act” for the purposes of prosecuting enter-prise corruption cases and legislation to authorize the Department of Health (DOH)’s Bureau of Narcotic Enforcement expanded access to criminal histories to aid its investi-gations of rogue prescribers and dispensers. There is also legislation that increases the penalties for the criminal sale of a controlled substance by a pharmacist or practitioner by making the crime a class C felony.

The package also includes several public education provisions, including distribution of informational cards in Naloxone Anti-Overdose Kits to help save lives and provisions to expand public-awareness cam-paigns to help educate New York students about the dangers of opioid and heroin. It directs OASAS to undertake a public aware-ness and educational campaign utilizing public forums, media (social and mass), and advertising to educate youth, parents, healthcare professionals, and others about the risks associated with heroin and opioids, how to recognize signs of addiction, and the resources available to deal with these issues. In addition, there is a provision that directs the State Education Commissioner to update the drug abuse curriculum every three years so that students have the most current and up-to-date information on coping with drug-abuse and other substance-abuse problems. (Clancy, Dears, Auster)LeGisLature anD GOvernOr aGree On use Of MariJuana fOr certain MeDicaL cOnDitiOns; sMOKinG PrOhibiteD

Governor Andrew Cuomo and legisla-tive leaders have reached agreement on legislation to allow for the use of marijuana for medical purposes. A. 6357E/S.7923 is sponsored by Assemblymember Richard Gottfried and Senator Diane Savino. Under the bill’s provisions, the New York State Department of Health will operate the pro-gram, and physicians will need to register with DOH to be able to “certify” that the patient meets the criteria for medical use of marijuana. The use of marijuana will be allowed for patients having cancer, epilepsy, multiple sclerosis, ALS, Parkinson’s disease, Huntington Disease, damage to the nervous

MSSNY’s 2014 Legislative Successes(Continued from page 1)

(Continued on page 10)

Do You Want To Learn More About Medical Nutrition?

Introducing the Medical Nutrition Program for Health Professionalsat Columbia University’s Institute of Human Nutrition

The Medical Nutrition Program for Health Professionals at Columbia University’s Institute of Human Nutrition is specifically designed for busy health professionals who want to integrate nutrition into their practice.

The program starts with one year of blended online/on-ground coursework, which meets one weekend per month, with additional online components. It includes an applied, com-prehensive focus on nutrition biochemistry, growth, development and aging, medical nutrition therapy, and clinical nutrition.

Each month also includes workshops on counseling techniques to help you guide your patients toward health behavior change. The courses combine didactic lectures, research discussions, and counseling exercises to enable the effective and immediate application of evidence-based nutrition guidelines, as well as an opportunity to collaborate with peers in the learning process. What you learn over the weekend can be put into practice the following Monday.

After one year, participants earn a Certification of Professional Achievement in Medical Nutrition along with CME credits. They can then opt to continue for a Masters of Science degree, which entails additional online/on-ground coursework and a guided thesis project tailored to their own area of interest.

For more information about our Health Professional Program, contact Claire Zimmeck at

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The Institute of Human Nutritionnutrition revealed.

tissue of the spinal cord, positive status of HIV/AIDS, inflammatory bowel disease, and neuropathies. The bill also authorizes the use of marijuana for those conditions that are clinically associated with or a complica-tion of the above such as cachexia, severe or chronic pain, severe nausea, and severe or persistent muscle spasms. Additional condi-tions and diseases may be covered after being approved by the New York State Department of Health. Smoking of marijuana is prohib-ited under the bill, and marijuana will be obtained in vapor, oil, or pill form from a list of up to 20 dispensaries. Only five New York State manufacturers would be granted licenses to grow marijuana.

Physicians who register with DOH would then be allowed to “certify” their patients, and each patient must apply to DOH for an identification card. The bill’s provisions include a two-to-fou- hour training program for physicians prior to being able to cer-tify patients. Additionally, new crimes are established for physicians and patients who commit fraud under the program. Physicians would also be subject to disciplinary action under OPMC. The program will commence 18 months after the bill’s enactment, and there is a five year sunset; however, should the program lead to increased drug diversion and illegal use, the governor has the ability to suspend the program if there is a risk to pub-lic health and safety. The bill also imposes a “gross receipt” tax of the sale of marijuana for medical use. (Clancy) biLL tO ensure that OPMc nOt investiGate Or charGe a Practi-tiOner Passes LeGisLature; nys senate issues a rePOrt On LyMe Disease

S.7854/A.7558B, sponsored by the Senator Kemp Hannon and Assemblymember Didi Barrett, has passed the New York State Legislature. If signed into law, this mea-sure would ensure that the NYS Office of Professional Medical Conduct (OPMC) will not identify, investigate, or charge a practitioner based solely on their recommen-dation or provision of a treatment modality that is currently not universally accepted by the medical community. This bill codi-fies a guidance issued by OPMC in 2005 in regards to investigations involving high-dose, long-term antibiotics for the treatment of Lyme disease.

The bill was part of a recommendation of a report issued by the New York State Senate’s Majority Coalition Task Force on Lyme and Tick Borne Diseases. The task force also passed a resolution calling on the federal government to address Lyme and tick borne disease and ask the CDC to reevaluate its guidance on Lyme and other tick borne dis-ease. In addition, it called upon the NIH and other federal agencies to provide more fund-ing for these diseases. It is our understanding that the Senate Task Force will hold further meetings on this topic.(Clancy, Dears)heaLthcare PrOfessiOnaL transParency act (truth in aDvertisinG) biLL faiLs tO aDvance

Despite the efforts of MSSNY and the several state and national specialty societies, including the NYS Society of Anesthesiology and the NYS Society of Dermatology and Dermatologic Surgery, the Truth in Advertising bill failed to advance again this year. This bill would assure that health care professionals are appropriately identified in their one-on-one interaction with patients and in their advertisements

to the public. Importantly, this bill would 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 informa-tion. Ambiguous provider nomenclature, related advertisements and marketing, and the myriad of individuals one encounters in each point of service exacerbate patient uncertainty. Further, patient autonomy and decision-making are jeopardized by uncer-tainty and misunderstanding in the health care patient-provider relationship. This measure would also require health care practitioners to wear an identification name tag during patient encounters that in bold lettering states the type of license held by the practitioner. 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 prac-titioner holds.

MSSNY and its specialty society col-laborators will endeavor to work over the summer months to amend the proposal to address concerns raised by various parties this year. Both sponsors have indicated their desire to introduce and pass a revised pro-posal early in 2015. (Dears)Mssny effOrts PrevaiL On scOPe-Of-Practice biLLs

As the final gavel sounded on the 2014 legislative session in Albany, the scope-of-practice bills that MSSNY, our physicians, and several specialty societies have been actively opposing all year remained unpassed by one or both houses of the Legislature. Our joint efforts have helped to ensure that the following bills will not become law this year, but will most likely return next year to be fought in another battle. Because this is the end of a two-year cycle, the bills would have to be re-introduced next year and would be given a new bill number. They will also be assigned to their committee of origin and would have to begin the process again:

Podiatry Scope Bill – A.7108-A (Pretlow)/ S.4835-B (Libous), which would expand the scope of a podiatrist to include wound care on the lower leg not contiguous to the ankle and remove some of the requirements for podia-trists to be able to perform surgery above the mid-ankle, including a supervised training program. Despite a last minute effort by the Podiatrists to have the bill discharged from the Senate Higher Education Committee to Senate Rules, the bill was not passed by the Senate and remains in the Higher Education Committee in the Assembly.

Pharmacist Immunizing Bill – A.9211-A (Paulin)/ S.5688-A (Hannon), which would increase the types of immunizations that pharmacists could provide and allow them to provide all of these immunizations pur-suant to a non-patient-specific prescription. The bill remains in the Higher Education Committees in both the Senate and Assembly.

Oral and Maxillofacial Surgeon Bill – A.5632 (Morelle)/ S.1918 (Libous), which would authorize oral and maxillofacial den-tal surgeons to perform any procedure in the maxillofacial area, including cosmetic surgery such as rhinoplasty, face lifts, blethe-roplasty, and other procedures unrelated to dental health. The bill remains in the Higher Education Committees in both the Senate and Assembly.

Optometric prescribe-and-use bill – A.2192-A (Paulin)/ S.7678-A (Libous),

Page 10 • MSSNY’s News of New York • July 2014

MSSNY’s 2014 Legislative Successes(Continued from page 9)

which would authorize optometrists to use and prescribe cer-tain oral therapeutic medications. This bill remains in both the Senate and Assembly Higher Education Committees.

Three bills that would allow non-physician providers to form limited liability partnerships (LLCs) with physicians:

1. A.801 (Weprin)/ S.3481 (Ranzenhofer), which would allow psychologists to form LLCs with physicians, remains in the Assembly Higher Education Committee and the Senate Corporations, Authorities and Commissions Committee.

2. A.5956-A (O’Donnell)/ S.6414 (Martins), which would allow chiropractors to form LLCs with physicians, passed the Senate and remains in the Assembly Higher Education Committee.

3. A.1384-A (Cahill)/ S.3756-A (Ranzenhofer), which would allow optometrists to form LLCs with physicians, remains in the Assembly Higher Education Committee and the Senate Corporations, Authorities and Commissions Committee.

Retail Clinics- A.5124 (Paulin) and S.4069 (Hannon) which would allow for profit corporations to establish clinics offering a limited number of services provided by nurse practitioners employed by such corporations to be opened in retail estab-lishments. The Assembly bill remains in the Codes Committee while the Senate bill is on the Senate Floor.

Midwifery Birthing Center -A.9398 (Gottfried)/ S.7121 (Hannon), which would allow a midwifery birth center to be developed and governed solely by a midwife by removing the requirement for a physician to be the owner or medical director. The bill passed the Assembly and was referred to the Senate Rules Committee. (Division Of Governmental Affairs)nursinG eDucatiOn biLL that Mssny suPPOrts Passes asseMbLy

A.3103 (Morelle)/S.5924 (Flanagan), a bill that would increase the level of education required for continued regis-tration as a registered professional nurse ten years after the

initial licensure, has passed the Assembly and was reported to the Senate Rules Committee. The bill would grandfather in those currently licensed, in a nursing program, or on a waiting list to begin a nursing program and would continue to allow entry at the associate-degree level nursing program. (Ellman)biLL tO incLuDe Dentists in DOctOrs acrOss neW yOrK PrOGraM Passes senate; DOes nOt Pass asseMbLy

Legislation (S.2190-B; Young) which would expand the Doctors Across New York program to include dentists with-out increasing the funding for the program was not passed by the Assembly this year. There is insufficient funding to accommodate the physicians who apply, are qualified, and agree to work in a medically underserved area of New York State, in return for up to $150,000 in student-loan repay-ments and/or up to $100,000 in practice support. Although MSSNY appreciates the fact that dentists are also needed in underserved areas, if they are to be included in the bill, there must be additional funding to accommodate them. The bill had previously passed the Senate earlier this month. (Ellman) biLL tO exPanD LOnG terM care anD enD Of Life care financeD by Life insurance anD tO estabLish a PubLic aWareness PrOGraM Passes bOth hOuses

S.6672-A (Klein)/ A.8957-A (Gjonaj), a bill that would expand the types of long-term care and end-of-life care that can be financed by a life insurance accelerated-death benefit has passed both houses of the Legislature. If signed into law, the types of long term care that could be financed through such a benefit would include end-of-life care provided for by a long-term home health care provider, hospice, or adult day care services or palliative care, so long as the long-term care has been provided for at least three months or more, with the expectation that the beneficiary will continue to require such services until death. The bill also allows for the establishment of a coordinated public-awareness program to encourage

individuals to purchase life insurance and long-term care insurance. (Ellman, Dears) biLL tO reQuire chiLDren unDer 14 tO Wear a heLMet fOr sKiinG Passes senate

S.3282 (Little)/A.8908 (Markey) passed the Senate and was reported to the Assembly Judiciary Committee, where it remains at the end of session. The bill would require that children under age 14 wear a helmet suitable for use while skiing and require ski-area operators to post signs in specific locations advising customers of the availability of helmets for sale and rent, and of their obligations under the law. Ski operators would also be obligated to maintain a reasonable inventory of helmets for rent or sale which meet the standards and criteria set forth in the law. (Ellman)e-PrescribinG ManDate Of cOntrOLLeD substances becOMes effective On March 27, 2015

E-prescribing will be required for all New York State pre-scriptions, including controlled substance, on March 27, 2015. While the E-prescribing mandate goes into effect on March 27, 2015, physicians who comply with these regula-tions may now begin to electronically prescribe controlled substances (EPCS), as long as their EPCS systems are DEA certified. Physicians must register their EPCS software with NYS Bureau of Narcotic Enforcement (BNE). Transmission of a prescription of a controlled substance using software that is not DEA certified will fail. The prescription will not be filled. A waiver process from the E-prescribing mandate has been established under regulations. A waiver is only good for one year, and physicians will need to apply directly to the Commissioner of Health. BNE officials have indicated that they are not currently taking any waiver applications as the law is not yet fully in effect.

The E-prescribing of controlled substance was required under the passage of the I-STOP law in 2012. (Clancy)

July 2014 • MSSNY’s News of New York • Page 11

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