MedicalMalpracticeIssuesforPhysiciansandAttorneys · part of a medical malpractice suit. Ms. Bixenstine and Mr. Donnelly were asked by the moderator, Mr. Moscarino, to respond to

PHYSICIANNORTHERN OHIO

THE VOICE OF PHYSICIANS IN NORTHERN OHIO www.amcnoma.org

May/June 2011 | Volume 96 | No. 3

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Medical Malpractice Issues for Physicians and AttorneysRegional Associations Work Together to Create a Successful Program

AMCNO Participates in National MedicalLegal Partnership Advocacy Day andBriefing on Capitol Hill

communities can work in partnershiphighlighting the various medical legalinitiatives currently under review by theAMCNO including specialty courts and ourwork with the medical legal partnership. Shenoted that the AMCNO has traditionally had

The AMCNO was pleased to participate inthe MLP Advocacy Day and we werehonored to participate in a briefing toCongressional representatives. Participantsin the briefing included Dr. John Bastulli,AMCNO Vice President of Legislative Affairs,

In April, the Academy of Medicine of Cleveland & Northern Ohio (AMCNO), the Academy ofMedicine Education Foundation (AMEF) and the Cleveland Metropolitan Bar Association(CMBA) were pleased to co-sponsor a seminar entitled “Medical Malpractice Issues forPhysicians and Attorneys. The event was well-attended with both physicians and attorneysparticipating in the session. The AMCNO would like to thank the members of our MedicalLegal Liaison Committee and in particular committee member Mr. George Moscarino fordeveloping this seminar concept and for reaching out to the CMBA to partner with theAMCNO on this session. Presenters included James J. McMonagle, Esq., from Vorys, Sater,Seymour and Pease, LLP, John A. Lancione, Esq., from Lancione & Lancione, P.L.L., Kim F.Bixenstine, Esq., Vice President and Deputy General Counsel, University Hospitals of Cleveland,and Matthew J. Donnelly, Esq., Director of Litigation, The Cleveland Clinic Foundation.

Mr. Thomas Susman, Esq., Director,Government Affairs Office for the AmericanBar Association (ABA) and Ms. Ellen Lawton,Esq., Executive Director of the National

Dr. Laura David, AMCNO President beganthe session with a welcome from theAMCNO and a special thanks to the CMBAfor beginning a new relationship with theAMCNO. She stated that there are variousissues where the medical and legal

(Continued on page 5) Legislative Update Page 6

AMCNO Advocacy Page 10Activities

Update in CIGNA Page 19Government ServicesRoll Out

INSIDE THIS ISSUE

an educational course each spring dealingwith medical legal topics, and we arepleased to start a new format this year withboth physicians and lawyers represented inthe audience. Mr. Michael Ungar, the

On March 23, 2011, medical-legal partnership (MLP) teams from around the country met withmembers of Congress and staff on Capitol Hill to educate them about MLP and its positiveimpact on vulnerable populations across the country. The response was overwhelminglypositive. Members and their staff were eager to support the work of local partnerships and theMLP Network, a testament to the important and valuable services MLPs provide.

A capacity crowd of physicians and attorneys wereon hand to learn more about medical malpracticeissues at the AMCNO/CMBA co-sponsored seminar.

Dr. Bastulli (left) spends a moment after theCongressional briefing with Ms. Ellen Lawtonand Mr. Thomas Susman

(Continued on page 3)

2 NORTHERN OHIO PHYSICIAN � May/June 2011

President of the CMBA also welcomed thegroup and echoed Dr. David’s commentsnoting that he hopes that this event marksthe beginning of what will be a renewedbond between the AMCNO and the CMBA.

Mr. McMonagle was asked to providecommentary on some of the commonthemes in medical malpractice cases. Hestated that one of the most common thingsthat can come up in a trial is the issue ofappropriate charting. He cautioned thephysicians in the audience that under nocircumstances should they be in a situationwhere they are found to have altered orchanged a medical chart. The chart shouldbe complete without last-minute changes –late entries are absolutely frowned upon. Hestated that physicians should always becognizant of the fact that the electronic chartgives a road map as to what happened,when it happened, and who was there. Healso noted that it is very important thatphysicians spend some time with theirlawyers prior to a deposition because thelawyer will understand how these charts aregoing to be used. Remember – when aplaintiff’s lawyer is asking you a question,they are not doing it to give you somebenefit – so you must have the appropriateperiod of time to prepare for the deposition.And, if you are to be videotaped rememberto look professional and look at the camera,not the person asking the questions. Hecautioned the doctors in the audience that ifyou do end up in court don’t forget a jury issitting there. Remember it is not betweenyou and the attorney – it is between you andthe seated jury. Don’t ever get to the point offorgetting who the audience is – because atthe end of the day the audience is the jury sounderstand that you have to explain thingsto them and have a relationship with them.

Mr. Lancione was asked to provide hisobservations from the plaintiff’s bar point ofview. A major focus of his presentationcovered the insurance claims filing datareleased by the Ohio Department ofInsurance (ODI). He stated that since theenactment of tort reform and the affidavitof merit laws in Ohio the number of medicalmalpractice claims reported by ODI hasgone down. He stated that in reality plaintiffattorneys spend over half their time notsuing doctors. Instead, a good deal of theirtime is spent looking at cases and tellingpeople that their claim has no merit. Hestated that it is also important to remember

that in Ohio lawyers cannot sue doctorsanymore without an affidavit of merit fromanother doctor. He stated that plaintifflawyers do take this very seriously and theydo feel that they all have a commitment tothe bar, the court and to the medicalprofession, and they do not make decisionslightly. He also noted that there are waysthat physicians could avoid getting sued. Forexample, there are proven studies fromother states which show that if hospitalsand doctors can answer questionsforthrightly, they are open and honest abouttheir mistakes, and they show they aretaking steps to fix problems, that they aremuch more likely to avoid being named aspart of a medical malpractice suit.

Ms. Bixenstine and Mr. Donnelly were askedby the moderator, Mr. Moscarino, torespond to questions related to currenttrends in medical malpractice litigation fromthe hospital in-house counsel perspective.

Ms. Bixenstine stated that there has beenincreased regulatory action againstpharmaceutical companies, devicemanufacturers and the health care industry.She stated that if a physician is serving as anexpert or a speaker for pharmaceuticalcompanies or device manufacturers theyshould be sure that they are writing theirown speeches and that what they are sayingon behalf of that pharmaceutical company isrepresentative of their views. Also make sureyou are scrupulously following the conflict ofinterest policies of universities, hospitals andemployers. She commented on the ODI datanoting that with respect to malpracticetrends in Ohio, the number of claims closedin 2009 went up 8 percent over 2008 sothere has been an uptick in the number ofclaims. Also, the average indemnity paymentin 2009 was up 27 percent over 2008. Shealso noted that Northeast Ohio generatedhalf of the claims and had the highestindemnity payments in the state.

Mr. Donnelly noted that he is seeing morecases pre-suit since it is expensive for theplaintiff attorneys to hire experts, and if thereis agreement on resolving a matter early it ishelpful. Ms. Bixenstine agreed noting that lastyear at least 72 percent of their claims weresettled pre-suit without litigation.

In response to a question on what physicianscan do to keep out of court, Mr. Donnellynoted that good communications is one ofthe best ways to avoid a malpractice claim.He stated that it is important to take the timeto establish a good patient/physicianrelationship since it is much easier to spendtime on the front end than years of litigationon the back end. Also, he recommended thatphysicians communicate expectations clearly.In the documentation be sure to clearly layout a treatment plan, and explain yourdecision-making process. Ms. Bixenstine alsonoted that attending physicians need toremember that it is important to read adischarge summary that a resident hasdictated. If your name is on it you areresponsible for the contents and it does notget you out of liability if it says “dictated, butnot read,” so she encouraged physicians inthe audience to carefully review the dischargesummaries and correct them in a timely way.

NORTHERN OHIO PHYSICIAN � May/June 2011 3

LEGAL ISSUES

The presenters pose forthe camera followingthe session: (left to right)Mr. George Moscarino,Mr. John Lancione,Ms. Kim Bixenstine,Mr. Matthew Donnellyand Mr. Jim McMonagle.

(left to right) Mr. Michael Ungar, CMBA president,Mr. George Moscarino and Mr. Jim McMonagle listento the presentations at the medical legal event.


Medical Malpractice Issues forPhysicians and Attorneys(Continued from page 1)


LEGAL ISSUES

She also noted that physicians should have afollow-up process in their office or practice toreport test results since there have been caseswhere there has been a missed diagnosisbecause of a failure to follow up on test results.

Mr. Moscarino asked for their views ongetting affidavits of merit on time and theirthoughts on whether the courts enforcethese. Ms. Bixenstine stated that generallythe judges will give the plaintiff’s counseltime to get the affidavit of merit within 60-90 days, but after that time if the affidavit ofmerit is not filed the case will be dismissed.So the affidavit of merit can provide somedeterrent for filing frivolous cases.

In response to a question on how to bestwork with an outside attorney and defend acase Ms. Bixenstine noted that as soon asthere is an adverse incident where there is anunexpected negative outcome or if aphysician realizes that a mistake has beenmade they should immediately call their riskmanager or law department. They can helpyou figure out how to deal with it and how todisclose the error or apologize. It can behelpful to try to resolve a case pre-suit. Shealso cautioned to never change or alter therecords. Mr. Donnelly agreed and noted thatphysicians have to ask for advice and realizethat in this situation they are not the expertanymore. Your whole life you have been theexpert and in charge, but you are in foreignterritory now. Trust your lawyer to know whatthey are doing – they have been there before,they are the experts now so work with them.It is also necessary to go through the records,review the depositions, pay attention and putthe time in to talk to your lawyer. Also hecautioned physicians in the audience not toengage in communications about the event inthe hallway with other people because theseconversations are not privileged.

Both attorneys were asked to provide insightinto the importance of the deposition. Mr.Donnelly stated that the deposition is moreimportant than the trial because most casesdo not go to trial. The deposition is usuallythe first time the plaintiff’s lawyer gets achance to size up the physician. Thedeposition makes the initial impression. Youwant the plaintiff’s lawyer coming awayfrom that deposition thinking about whetheror not they should move forward with thecase. Ms. Bixenstine echoed these commentsand stressed the importance of lookingprofessional during the deposition.

Both attorneys commented that socialmedia and electronic communications aredramatically changing litigation becausethere is so much publicly available.Physicians need to recognize that if they areinvolved in litigation or called as a witness ina case it is more than likely the plaintiff’slawyer will have searched for informationon you, so physicians need to be verysensitive to these issues and also rememberthat anything that could be embarrassing orused against you in litigation should neverbe posted on the internet. In addition,emails have changed the way physiciansinteract with their patients and physiciansneed to be very clear with their patientswhether they will communicate with themvia email and under what circumstances.Physicians need to be mindful of the factthat if you use email you may create aphysician/patient relationship even if youhave not physically examined the patient. Soif a patient emails you and you give medicaladvice by email arguably thepatient/physician relationship has beenestablished. That could then lead to a claimfor medical negligence if some adverseoutcome occurs as a result of that

communication. It can also lead to patientdissatisfaction if a response to an email isnot friendly, if it is deemed not responsive,or if it is a response from your staff. Alsophysicians were reminded that if you put itin an email, on Facebook or up on a blog,you may see it again in a courtroom.

The AMCNO, AMEF and the CMBA wish tothank all of the presenters for theirparticipation in this session and the AMCNOlooks forward to working with the CMBA inthe coming year on other medical legalinitiatives. �

Mr. David Watson, Executive Director of the CMBA,(left) and Mr. Edward Taber, co-chairman of theAMCNO Medical Legal Liaison Committee sharecomments during the event.

Medical Malpractice Issues forPhysicians and Attorneys(Continued from page 3)


LEGAL ISSUESAMCNO Participates in National Medical Legal Partnership AdvocacyDay and Briefing on Capitol Hill(Continued from page 1)

Center for Medical-Legal Partnerships. Therewas a great turnout that included staff fromCongressional offices, the ABA, the AMCNOstaff and various government agencies.

Dr. Bastulli noted that the AMCNO becameinvolved with the medical legal partnership inour region through the work of our MedicalLegal Liaison committee. This committee iscomprised of doctors and lawyers from acrossthe Northern Ohio region. The Medical LegalLiaison committee has utilized its resourcesand volunteer efforts through many of themajor Cleveland law firms who work forphysicians to accomplish the AMCNO mission.The goal of the Medical Legal LiaisonCommittee is not just to help doctors workwith attorneys - more importantly, the goal isto help doctors help their patients and that iswhy the MLP program is very important tothem. Through the committee they plan tohelp the MLP program in order to allowphysicians to better help their patients. Goingforward, the Medical Legal Liaison committeeplans to utilize their resources through themajor Cleveland law firms that are involvedwith the AMCNO with the MLP effort.

He further commented that underscoring theMedical–Legal partnership is anunderstanding that human health is not solelydependent on pathology or medicaltreatment. Instead, human health can beaffected by social factors and unmet legalneeds. Physicians typically do not have thetime to navigate the bureaucratic complexitiesthat can unintentionally hinder low-income orvulnerable patients’ ability to receive benefitsfrom public programs like Medicaid. Butbecause physicians are in a unique position toidentify environmental issues affecting patienthealth, MLPs frequently can then enablelawyers to intervene on behalf of patientsbefore an unmet legal or environmental needreaches crisis levels.

He noted that unmet social and legal needscan have a significant impact on patienthealth, as well as medical conditions. MLPs aredesigned to identify and resolve these unmetlegal and social needs by joining attorneyswith other members of the patient’s treatmentteam. MLP’s have been established as aneffective means of improving patient health byaddressing unmet needs that physicianspracticing without legal collaboration typicallywould not be able to address. This is wherethe legal profession plays a major role as

advocates. That is one of the reasons themedical legal partnership is so important.Because the MLPs have limited resources, theyare always looking at ways to get moreresources in both people and dollars –expanding their volunteer pool, andexpanding their partnerships. The more theMLP can work through partnerships to takecare of their client community the more theycan impact their clients. He noted that in orderfor these types of programs to grow andflourish we will need adequate funding andtherefore the AMCNO strongly advocates onbehalf of legislation that would provide uswith that funding.

Mr. Susman from the ABA noted that one ofthe beauties of lawyers and doctors workingtogether is that a lawyer can get involved inthe earlier stages and get things done tohelp the patient. For example, lawyers helppatients with issues such as income supportfor food if a child is hospitalized formalnutrition, or they can provide for utilityshut off protection when frostbite is theresult of the absence of heat. They can alsoaddress asbestos in a facility when a patientis brought in having chronic problems due totheir environment. These kinds of thingsobviously are happening around the cornerin every city. He stated that this kind ofrelationship between doctors and lawyerscan do something to address not only thehealth care situation after the fact but alsoby preventing it from occurring again.

Ms. Lawton noted they are starting to see achange in the standard of care from hospitalsand health centers that serve the populationsthat have strong support from groups like theAMCNO and national groups like the AmericanHospital Association and the American MedicalAssociation. She stated that there is a lot ofwork left to do – noting that shifting thetraining and priorities is going to take time,leadership and resources. All of the panelistsagreed that there is a real need to provideadditional funds and help programs such as theMLP. There is a plan on the part of the nationalMLP to reintroduce legislation in Congress toprovide for additional funding for MLPprograms and the AMCNO plans to continue towork on the national and regional level in aneffort to expand the MLP concept in our area.Once the legislation is introduced at the federallevel the AMCNO will reconvene stakeholdersin our region to continue the discussions in ourregion on this important concept. �


Overview of the Ohio BudgetThe Kasich administration released its much-anticipated two-year budget package, March15, cutting some $2.3 billion from variousline items. The proposed budget is about $5billion more than the last budget proposedby former Governor Strickland and approvedby the 128th General Assembly. The budgetincludes many different reforms includingpublic employee pension reform, publicemployee collective bargaining reform, K-12education reform, and transformation ofhigher education in Ohio, incentivizinggovernmental entities to use shared serviceslike cooperative purchasing, privatizing stateassets, Medicaid reform, and criminalsentencing reform. Modernizing or reformingMedicaid is priority number one.

Medicaid funding is being increased by 28.3percent to partially offset the loss of federalstimulus funding. However, the increase isdeceiving, since a 45% increase would beneeded to keep Medicaid funding at thecurrent level. Medicaid spending currentlyaccounts for 30% of the State’s entirebudget and 4% of Ohio’s total economy.And about 4% of the Medicaid population(Aged, Blind and Disabled) account foralmost 51% of the total spending.

The proposed budget doesn’t make anyreductions in Medicaid eligibility and avoidscuts in optional services, but according toGreg Moody, of the Office of HealthTransformation, (OHT) the goal is to putmore emphasis on outcome-basedmedicine that rewards quality rather thanquantity of services. He said efforts to“transform Medicaid” will reduce over-allspending by about $1.4 billion over thebiennium and include:

• Improving care coordination toachieve better health and cost savingsby promoting health homes, providingaccountable care for children, andsupporting Ohio’s care coordinationplanning grant application to theCenters for Medicare and MedicaidServices (CMS);

• Integrating behavioral and physicalhealth care services by elevatingbehavioral health financing to thestate, managing behavioral healthservice utilization, and consolidatingthe Residential State Supplementprogram; and

• Rebalancing long-term care toenable seniors and the disabled tolive in preferred settings by creatinga unified long-term care budget,creating a single waiver, avoidinghigh cost institutional placements,linking nursing home payments topatient-center outcomes,consolidating programs for peoplewith developmental disabilities, andreforming nursing facility payments.

The budget will affect physicians byending hospital and physician paymentsfor patients who must be readmitted dueto hospital acquired infections. It will alsorestore the pharmacy benefit “carve out”to managed care but require a morestandardized set of prior authorizationcriteria across the plans. Hospitals willalso be required to pay a franchise fee.OHT estimates the $371 million infranchise fee payments will result in a netgain of $554 million for hospitals and$434 million in general revenue funds forthe state over the biennium.

Gov. Strickland’s last budget constituted atax (or fee) of $718 million on hospitals,and mandated that the franchise fee to bein place for two years. It imposed anannual assessment on hospitals based ontheir total facility costs. It set the firstannual assessment at 1.27% of ahospital's total facility costs and the secondand subsequent annual assessments at1.37%. The revenue from the franchise feewas then returned to hospitals through adraw down from an enhanced FMAP thatwas disbursed based on the amount ofMedicaid patients treated by the hospital.As noted above, the new executive budgetHB 153, extends this franchise fee.

The Ohio Hospital Association (OHA)describes the payment process for the newfranchise fee as follows: Ohio hospitalspay a $900 million franchise fee thatdraws down $1.6 billion in federalmatching funds; $1.2 billion of thesefunds are available to the state to fundnon-hospital portions of the Medicaidbudget; and $1.3 billion of these fundsare used to pay hospitals for servicesprovided to Medicaid patients and to payhospitals through UPL formulas and othermechanisms.

In addition the budget calls for:• Enrolling 37,544 children with

disabilities into Medicaid managedcare plans, while beginning thedevelopment of Pediatric AccountableCare Organizations to address theirlong-term medical conditions.

• Moving financial responsibility forcommunity behavioral health fromlocal boards to the state.

• Requiring Medicaid managed careplans to reimburse hospitals at lowerfee-for-service rates if they will notcontract with an MCO plan.Eliminating the Children’s Buy-InProgram, which provides insurancesubsidies for families with uninsurablechildren between 300% and 500% ofthe federal poverty level.

• Combining PASSPORT, Ohio HomeCare, Ohio Home Care/TransitionsAging Carve-out, Choices, andAssisted Living into a single waiverprogram for individuals with physicaldisabilities and seniors.

• Linking nursing home payments topatient-centered outcomes bymodifying the quality incentivepayment.

• Adjust nursing home facility ratereimbursements and make otherchanges to shift to more home andcommunity-based services.

Recently, Mr. Greg Moody who is the headof Gov. Kasich’s new Office of HealthTransformation (OHT) which will coordinateand oversee health priorities and healthrelated entitlement programs, appearedbefore the Ohio House Finance andAppropriations Committee to discuss thebudget bill. Mr. Moody told the committeemembers that the group’s directives are toalign Medicaid policy priorities acrossagencies. Medicaid spending is about $20billion of the state’s $55 billion budget. Mr.Moody explained that Gov. Kasich’s policypriorities are focused on better healthoutcomes for the 2.2 million Ohioans on theMedicaid program and on achieving a bettervalue for the state's taxpayers. Among thepriorities is the Affordable Care Act (ACA)focus on medical homes, which couldimprove care and reduce costs by avoidingemergency room use, moving consumersaway from hospitals to a lower cost site toreceive their primary care, and avoidinghospital admissions with earlier treatment.ACA provisions will also involve returningthe control of prescription drugs to managedcare organizations with the state still able toget the supplemental rebates while the

LEGISLATIVE ISSUESAMCNO Legislative Update


LEGISLATIVE ISSUESexchanges will provide another avenue forcoverage for some citizens.

Care coordination is another priority thatwill involve looking at coordinating servicesto the state's dual eligible individuals whoreceive services covered by both Medicareand Medicaid. Care coordination also sees anew, evolving role for children's hospitals,with the budget proposing PediatricAccountable Care Organizations (ACOs).

The state is going to receive less in federalmatching funds and is forced to makereductions. In Mr. Moody’s testimony heexplained where some of the reductions willbe made that make up for $1.4 billion inMedicaid cuts:

• Per member per month rate forhospitals down 1.8 percent

• Outpatient hospital rate will be down4.5 percent with the per member permonth rate down 6.7 percent

• Managed care plans will see a 1percent reduction inadministrative/trend changes

• The base rate for community-basednursing services will see a 4.9 percentdecrease while the base rate for aideservices will go down 2.5 percent

Other Budget ItemsThe Ohio Department of Insurance budgeteliminates funding for the Health CareCoverage and Quality Council, but includesfunds for implementing many aspects of thefederal Patient Protection and AffordableCare Act, including overseeing Ohio’s high-risk pool, reviewing insurance policy formand rate filings for compliance withapplicable state and federal law, andcoordinating with the federal government.

The department is also preparing for thehealth insurance market reforms to takeeffect in 2014, including planning forimplementation of a health insuranceexchange in Ohio. The department hasreceived two federal grants to meet itsregulatory obligations under federal law: ahealth insurance exchange planning grantand a premium rate review grant.

At a recent visit to Cleveland, MedicaidDirector Mr. John McCarthy provided adetailed overview of the Medicaid budgetnoting that the health transformationpriorities are to improve care coordination,integrate behavioral/physical health care,rebalance long-term care, modernizereimbursement and balance the budget. Henoted that the vision for better care

coordination is to create a person-centeredcare management approach – not aprovider, program or payer approach.Services are to be integrated for all physical,behavioral, long-term care and social needs.Service are to be provided in the setting ofchoice with a system that is easy to navigatefor consumers and providers. The intentionis to transition seamlessly among settings asneeds change and to link payment toperson-centered performance outcomes. Inorder to improve care coordination, Mr.McCarthy noted that there will be a need tocreate a single point of care coordination, aswell as to promote health homes andaccountable care for children.

Currently, the Ohio Department of Health(ODH) has an annual budget of over $770million. Seventy-two percent comes fromfederal funding, 12.7 percent from stategeneral revenue funds (GRF) and the restfrom permits and fees. The ODH hascreated a web site to provide accurate andup to date information about the budget atwww.odh.ohio.gov/budget.

The leadership of the Ohio House ishoping to have HB 153 passed out of thechamber by the second week of May. Thebill will then move over to the OhioSenate. The executive budget must beenacted by July 1st.

Other Legislation Under Review in theOhio LegislatureAs always, the AMCNO is tracking all healthcare-related bills as they are introduced andmove through the Ohio legislature. TheAMCNO has taken a position of support onthe following legislation:

HB 93 – Prescription Drugs – this bill wouldestablish and modify the prevention ofprescription drug abuse, development ofinformation programs by the State MedicalBoard, and Medicaid coverage ofprescription drugs.

SB 31 – Cancer Treatment – this billrequires certain insurers that providecoverage for cancer chemotherapytreatment to provide coverage for certainprescribed, orally administered anticancermedication on a basis no less favorablethan intravenously administered orinjected cancer medications that arecovered under the policy.SB 77 – Bicycle Helmets – this bill wouldrequire bicycle operators and passengersunder 18 years of age to wear protectivehelmets when the bicycle is operated on a

roadway and to establish the Bicycle SafetyFund to be used by the Department ofPublic Safety to assist low-income families inthe purchase of bicycle helmets.

SB 129 – Medical Immunity – this bill wouldgrant qualified civil immunity to a physician,physician assistant, dentist or optometristwho provides emergency medical, dental oroptometric services, first-aid treatment orother emergency professional care incompliance with the federal EmergencyMedical Treatment and Active Labor Act oras a result of a disaster and to a certifiednurse-midwife, certified nurse practitioner,clinical nurse specialist or registered nursewho provides emergency services, first-aidtreatment or other emergency professionalcare as a result of a disaster and to providethat these provisions do not apply towrongful death actions.

For more information on AMCNO legislativeactivities or items covered in this article,please contact the AMCNO executive officesat 216-520-1000. �

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AMCNO ADVOCACY ACTIVITIES


The Academy of Medicine ofCleveland & Northern Ohio (AMCNO)Spearheads Legislation to AddressPhysician Ratings in Ohio

The purpose of this legislation is to providepatients with accurate information whenselecting a physician. This legislation wouldprevent health insurance companies fromranking physicians based solely on specificcriteria to persuade a consumer to choose onephysician over another. The legislation wouldmodify the usage of physician rating (alsoreferred to as physician ranking and physiciandesignation) by medical insurance companiesand public health plans.

The intention of the legislation is to apply asystem of quality standards if and when amedical insurance company or public healthplan uses a system of physician rating. Thelegislation will also notify a physician whenthey are being rated and allow for a process ofappeal if the physician does not agree with therating. This legislation will provide a system offairness to the physician community. If

passed, Ohio will be on the forefront ofimplementing important new policy thatpromotes accurate, safe and effective healthcare transparency for everyone.

The issue of physician ranking has been hotlydebated for several years. In recent years, therehas been an increase of physician rankingacross the country. Insurers have supportedobtaining data in order to tier and quantifycost effective care, and consumers havewanted data to compare quality of doctors.The crux of the debate is balancing the rightsof physicians to have accurate and relevantreporting of their practice with the desire ofhealth insurers and consumers to have accessto information about their treating physician.

In the past, there has been a lack of scrutinythat has enabled health insurers to unfairlyevaluate a physician’s individual work by using

an insufficient number of patient cases,questionable quality measurements and poorrisk adjustment systems.

The AMCNO is of the opinion that doctorrankings can be confusing and could be usedto steer patients to the least-expensive healthcare providers, rather than being based onquality. It is important that the insurancecompanies are truly reviewing quality issuesversus cost and claims data, and the data mustbe accurate with the ability of physicians toappeal their data.

In the 128th General Assembly legislation wasintroduced by Rep. Barbara Boyd (HB 122) andSenator Patton (SB 98). HB 122 passed out ofthe House with a 97-1 vote and had twohearings in the Senate Insurance, Commerceand Labor Committee. The AMCNO was veryactive in this debate and was instrumental ingetting this legislation to move through theOhio House in the last General Assembly. TheAMCNO also worked with other interestedparties and stakeholders including the statemedical association to craft changes to thelegislation – changes which are reflected inthis latest piece of legislation – SB 121.

The AMCNO plans to work diligently to achievethe passage of SB 121 in this General Assemblyand we will keep our members apprised ofwhen the bill will be up for testimony anddiscussion in the coming months. �

After several months of working with AMCNO leadership and lobbyists, Senator TomPatton (R-24) has introduced SB 121 – legislation meant to address the issue of physicianratings by insurance companies in Ohio.


AMCNO ADVOCACY ACTIVITIESAMCNO Physician Leadership Meetswith State Agency Administrators

The purpose of these meetings was to meetwith the new administrators from thesestatewide groups to provide background onthe Academy of Medicine of Cleveland &Northern Ohio (AMCNO) as well as todiscuss the activities of our organization.The AMCNO leadership noted that ourmembership is comprised of physicians fromall over the Northern Ohio region and ourorganization represents physicians andphysician’s interests, no matter what theiremployment status or practice environment.We also noted our efforts in the legislativearena, specifically on legislation related totort reform issues and physician ranking, aswell as discussing the importance of theAMCNO community efforts and publichealth initiatives. The AMCNO physicianleaders also expressed a strong interest inworking with these statewide organizationson health care initiatives and legislativematters as well as asking for theopportunity to have an AMCNO participanton statewide task forces or work groups asthey develop to review health care related

matters or issues that could impact thepatient/physician relationship. As a result,ODH representatives asked for theassistance of the AMCNO on their workwith the patient-centered medical homeinitiative, the medical reserve corps andpublic health issues. The ODI plans to workwith the AMCNO on the physician rankinglegislation and insurance matters and theyalso asked to learn more about the AMCNOinvolvement on developing a pilot inNorthern Ohio for a special court to reviewmedical liability cases. The ODJFS staff was

receptive to including the AMCNO in futurediscussions regarding Medicaidreimbursement issues as well. The AMCNOplans to remain in close contact with theleadership from these and other stateagencies in an effort to keep the AMCNOand the physicians in our region involved inbudget discussions and other health carerelated matters at the state level. �

Recently AMCNO physician leaders, staff and our lobbyist met with Dr. Ted Wymyslo, theDirector of the Ohio Department of Health (ODH), Mr. Michael Farley, Assistant Directorfor Legislative Affairs for the Ohio Department of Insurance (ODI), and Mr. John McCarthy,Medicaid Director for the Ohio Department of Job and Family Services (ODJFS).

AMCNO Physician Leadership Meets with theNew County Executive – Mr. Ed FitzGerald

Mr. FitzGerald was provided with anoverview of the mission and vision of theAMCNO along with backgroundinformation on AMCNO activities. Mr.FitzGerald also learned firsthand from theAMCNO President, Dr. Laura David, aboutthe myriad public health programs that theAMCNO participates in across the region.Drs. David and Bastulli impressed upon Mr.FitzGerald the importance of working withthe AMCNO due to our status as a regionalmedical association representing physiciansand their patients. The AMCNO physicianleaders also expressed a strong interest inworking with the county on health care

initiatives as well as participating on countytask forces or work groups that aredeveloped to review health care relatedmatters or issues.

Mr. FitzGerald was very impressed with thework of the AMCNO and he expressed aninterest in working with the AMCNOphysician leadership on health care relatedissues of importance to the county and thecitizens in the community. As a result, thecounty staff has been in discussions with theAMCNO staff and physician leadership todiscuss working with the AMCNO and thephysicians in the community on initiatives

Drs. David and Bastulli joined AMCNO staff E. Biddlestone and AMCNO lobbyist C. Pattonin a meeting with the new county executive, Ed FitzGerald, to discuss health care relatedissues of importance to the AMCNO.

that could improve the health of the citizensin Cuyahoga County. The AMCNO iscontinuing these discussions and we plan toremain in close contact with the leadershipfrom the county executive’s office tomaintain a strong working relationship withthe county and keep the AMCNO and thephysicians in our region involved in healthcare initiatives developed by the county. �

The new county executive Mr. Ed FitzGerald tooktime out of his busy schedule to talk with AMCNOrepresentatives (left to right) Dr. Bastulli, Mr.FitzGerald, Dr. David and AMCNO lobbyist Mr.Connor Patton.

Representatives of the Ohio Department of Insurancemeet with the AMCNO lobbyist and Drs. Bastulli andDavid to discuss the physician ranking legislation.

Dr. Laura David, AMCNO president and Dr. John BastulliAMCNO VP of Legislative Affairs spend a moment withDr. Ted Wymyslo, Director of the Ohio Dept. of Health.

Drs. David and Bastulli take a moment to pose withthe Director of Medicaid, Mr. John McCarthy.


AMCNO ADVOCACY ACTIVITIES

Medical students from the Ohio State Universitywere on hand at the Advocacy Day to talk tolegislators about tobaccco related health issues.

AMCNO Participates in Investing inTobacco Free Youth Advocacy Day

The Advocacy Day participants notifiedlegislators that Ohio’s laws governingtobacco have not kept up with the rapidlychanging tobacco products market.Participants in the event were asked to presslegislators to consider increasing the cigarettetax and equalizing the “other tobaccoproducts’ (OTP) tax in order to fund tobaccoprevention and cessation programs across thestate. Legislators were informed that the useof non-cigarette forms of tobacco is rising,especially among youth since these productsare cheaper due to the low OTP tax rate.Equalizing the OTP tax to the currentcigarette rate would generate $50 millionannually. Other concepts mentioned tolegislators were reclassifying filtered littlecigars as cigarettes which would raise the taxon these products, the elimination of tobaccotax credits which are discounts for cigarette

tax stamps and the discount for timelypayment of the other tobacco products’excise tax – unnecessary perks for tobaccocompanies that could provide the state withalmost $3 million over the biennium.Instituting high-tech tax stamps in Ohio couldalso help since high-tech tax stamps aredifficult to counterfeit and reduce cigarettetax evasion, increase government revenueand stop illegal cigarette sales at below-market prices. This funding should be used tocontinue tobacco prevention and cessationprograms. In a recent poll, 74.9% of Ohioanssupported taxing all tobacco products at thesame rate and using the new funding fortobacco programs. Participants in the LobbyDay reminded their legislators that throughsustained state investments in tobaccoprevention, Ohio can save Medicaid dollarsby roughly $16 million for direct healthcare

costs and over $27 million in workplaceproductivity losses.

In the meeting with area legislators, itbecame clear to the AMCNO that addingnew taxes or raising taxes would probablynot be an option at this time, however,legislators seemed open to further discussionon instituting high-tech tax stamps,reclassifying little cigars as cigarettes andeliminating tobacco tax credits. The AMCNOplans to remain actively engaged in theseefforts to make changes in the Ohio law inorder to fund tobacco prevention andcessation programs in our community andacross the state. �

Recently the AMCNO was pleased to be a participant in the Investing in Tobacco Free YouthAdvocacy Day at the Ohio Statehouse. Joining the AMCNO were more than 150 anti-tobaccovolunteers including medical students from the Ohio State University. The day began with anissue briefing prior to the participants meeting with their legislators from their respective districts.

AMCNO Meets with the New ChiefJustice Maureen O’Connor

The AMCNO provided background to theJustice on meetings that have taken place overthe last few years between the AMCNO, thelate Chief Justice Thomas Moyer, Judge Fuerstand representatives of the bar association onthe issue of special medical courts and the useof specially trained judges for medical liabilitycases. The AMCNO also provided informationon recent discussions between the AMCNOand representatives from the court in theSouthern District of New York regarding theirspecialty court concept.

The AMCNO representatives explained thatthe program in New York started as a judge-directed negotiation program working withone large hospital chain in the New York Cityarea. The program was directed to

expediting adjudication and early resolutionof medical liability cases - to reduceadministration/litigation costs. The judgethat spearheaded the concept is a medicallytrained judge and the program worked asfollows: any medical liability case filed in theNew York City area against an institution ordoctor at the hospital network would beautomatically assigned to the speciallytrained judge to handle for all pretrialactivities. The judge would schedule an earlypretrial and take a hard look at the case withcounsel, discussing all facts very early on,rather than just setting further dates at thefirst pretrial. There would be a push for anearly settlement in many cases, or fordismissal in weak cases, and the judge wouldlimit the discovery in most cases to just the

key depositions. The judge’s program wasable to substantially shorten litigation timeand reportedly save the hospital network anestimated $50 million dollars per year.

This program served as an example for agrant application to the federal government.The grant was won, and this is now allowingan expanded version of the judge’s programto now encompass five major health systemsin the New York City area. The grant alsocovers medical training for more judges andalso includes a patient safety-qualityassurance component. Harvard MedicalSchool is tracking data on this New York Cityprogram, and expects to publish a study inthe next few years measuring the outcomeof the program.

The AMCNO asked for the Justice’s input oninitiatives that could improve or streamlineoutcomes for all parties in medical liabilitycases. The Chief Justice suggested that itmight be beneficial to visit the court in NewYork City to see firsthand how this systemoperates and adjudicates cases. She alsosuggested that the AMCNO reach out to thebar association and the plaintiff’s bar to see ifwe could garner interest in this concept. Itwould be important to have both the medicaland legal community involved in thesediscussions going forward. The AMCNO iscurrently involved in discussions to set up atask force to discuss this concept further. �

Representatives from the Academy of Medicine of Cleveland & Northern Ohio (AMCNO)Medical Legal Liaison Committee recently met with Ohio Chief Justice Maureen O’Connor todiscuss alternatives and improvements to the current tort reform system. Our representativesinformed the Justice that this issue has been at the forefront for the AMCNO as one thatimpacts the Northern Ohio region harder than most parts of the state. Our representativesdiscussed utilizing special courts similar to the commercial court docket program with speciallytrained judges for medical liability cases in Cuyahoga County. The AMCNO believes that thiscould bring speed and special judicial expertise to the medical liability cases in this region whichcould work to the benefit of all parties involved.



PHYSICIAN PRACTICE ISSUES


PHYSICIAN PRACTICE ISSUESMEDICAL ISSUES

These circumstances serve to emphasize theimportance of early detection of the disease.But timely detection of memory loss orcognitive impairment offers many benefitsfor people with dementia, their families andphysicians beyond just taking a pill.

An early diagnosis of Alzheimer’s diseasebenefits physicians in that it triggers asearch for potentially treatable or reversibledisorders. In many cases, memory loss ormild cognitive impairment can be the resultof maladies other than Alzheimer’s diseasethat can be medically treated. Other healthproblems such as depression, thyroidproblems, dehydration, malnutrition,infections and medication problems canmimic the symptoms of Alzheimer’s disease.Therefore, a physician assessing a patientwith memory loss and/or mild cognitiveimpairment can troubleshoot these otherpotential causes before arriving at adiagnosis of Alzheimer’s disease. It is notuncommon for a patient or their loved onesto avoid diagnosing the problem for a fearof an Alzheimer’s diagnosis. The fact is thatmany of these families may be living in fearunnecessarily and a relatively simple courseof medical attention might successfullyaddress symptoms.

An early diagnosis also allows the physician,the patient and their family to address anumber of personal issues that might causethe patient avoidable harm. Issues of personalsafety, personal hygiene and nutrition comeinto play with a person suffering from memoryloss or cognitive impairment. Properlyaddressing those issues and implementing aregimen to avoid the obvious pitfalls will goa long way in preventing unnecessaryhardship whether or not the patient isultimately diagnosed with the disease.Other financial and professional issues canlikewise be avoided with an early diagnosis.

An early diagnosis will also offer a physiciansome important guidance on the treatmentof other concurrent health problems andwill help them address comprehension andcompliance challenges faced by a personwith dementia.

The patient can also benefit greatly from anearly diagnosis. Having their symptomslooked at and addressed can positively impactthe individual by ensuring greaterunderstanding and awareness of what ishappening to him or her. An early diagnosisprovides an opportunity to take medicationsto address some of the cognitive changes andopens the door for the patient and family totake advantage of appropriate programs andservices that are available in their community.

The diagnosis will also provide the patientand family with a framework forunderstanding and adapting to cognitiveand behavioral changes and may reduce thetendency to blame or be impatient with thediagnosed individual.

It is also important to identify the conditionat a time when the patient can stillparticipate in medical, legal and financialdecisions and make proxy plans. An earlydiagnosis will encourage the exploration ofoptions for job accommodations, earlyretirement or disability for individuals withyounger-onset Alzheimer's before reducedperformance jeopardizes employment andfinancial security. Early diagnosis gives theperson with Alzheimer's and their familymore time to arm themselves withknowledge about this type of dementia andthe best way to live with the disease. Inthese circumstances, knowledge is power.

The most common early symptom ofAlzheimer’s disease is difficultyremembering newly learned information

because Alzheimer's changes typically beginin the part of the brain that affects learning.As Alzheimer's advances through the brainit leads to increasingly severe symptoms,including disorientation, mood and behaviorchanges; deepening confusion aboutevents, time and place; unfoundedsuspicions about family, friends andprofessional caregivers; more seriousmemory loss and behavior changes; anddifficulty speaking, swallowing and walking.

There have been recent advancements inAlzheimer’s diagnostic research that haveproduced some promising evidence that PETscans or the presence of certain biomarkersmay be able to predict Alzheimer’s disease.These developments are exciting to say theleast but further study is needed prior toroutine diagnostic use. Therefore, physicianstypically make a clinical subjective diagnosisbased on patient and family testimony aswell as testing the patient’s memory andother cognitive skills. Basic laboratorytesting as well as a CT or MRI scan may behelpful in eliminating other causes ofmemory problems.

Last year, The Alzheimer’s Association issuedsome simple guidelines on the 10 warningsigns of Alzheimer’s disease which are listedbelow. Anyone experiencing one or more ofthese signs should consult with a doctorsooner rather than later. The earlier apatient gets a diagnosis, the better theirchances are for seeking treatment andplanning for the future.

10 Warning Signs ofAlzheimer ’s disease

1. Memory loss that disruptseveryday lifeOne of the most common signs ofAlzheimer's is memory loss, especiallyforgetting recently learnedinformation. Others include forgettingimportant dates or events; asking forthe same information over and over;relying on memory aides (e.g.,reminder notes or electronic devices)or family members for things theyused to handle on their own.What's a typical age-related change?Sometimes forgetting names orappointments, but remembering themlater.

An increasing number of Americans are being diagnosed with Alzheimer’s disease andother related dementias. The diagnosis can be devastating to patients and their families.While a cure for the disease remains elusive, our understanding of the disease hasadvanced and there are good reasons to maintain hope. There are a number ofpharmaceutical therapies that have shown promise in attempting to slow the advancementof the disease and there are a number of brain health initiatives that may also be of benefitin helping to slow the progression of the disease.

The Importance of Being EarlyPatients and Physicians Benefit from Early Detectionof Alzheimer’s DiseaseBy Dr. MatthewWayne


MEDICAL ISSUES

2. Challenges in planning or solvingproblemsSome people may experience changesin their ability to develop and follow aplan or work with numbers. They mayhave trouble following a familiarrecipe or keeping track of monthlybills. They may have difficultyconcentrating and take much longerto do things than they did before.What's a typical age-related change?Making occasional errors whenbalancing a checkbook.

3. Difficulty completing familiar tasksat home, at work or at leisurePeople with Alzheimer's often find ithard to complete daily tasks.Sometimes, people may have troubledriving to a familiar location, managinga budget at work or remembering therules of a favorite game.What's a typical age-related change?Occasionally needing help to use thesettings on a microwave or to record atelevision show.

4. Confusion with time placePeople with Alzheimer's can lose trackof dates, seasons and the passage oftime. They may have troubleunderstanding something if it is nothappening immediately. Sometimesthey may forget where they are orhow they got there.What's a typical age-related change?Getting confused about the day of theweek but figuring it out later.

5. Trouble understanding visualimages and spatial relationshipsFor some people, having visionproblems is a sign of Alzheimer's.They may have difficulty reading,judging distance and determiningcolor or contrast. In terms ofperception, they may pass a mirrorand think someone else is in theroom. They may not realize they arethe person in the mirror.What's a typical age-related change?Vision changes related to cataracts.

6. New problems with words inspeaking or in writingPeople with Alzheimer's may havetrouble following or joining a

conversation. They may stop in themiddle of a conversation and have noidea how to continue or they mayrepeat themselves. They may strugglewith vocabulary, have problemsfinding the right word or call things bythe wrong name (e.g., calling a"watch" a "hand-clock").What's a typical age-related change?Sometimes having trouble finding theright word.

7. Misplacing things and losing theability to retrace stepsA person with Alzheimer's diseasemay put things in unusual places.They may lose things and be unable togo back over their steps to find themagain. Sometimes, they may accuseothers of stealing. This may occurmore frequently over time.What's a typical age-related change?Misplacing things from time to time,such as a pair of glasses or the remotecontrol.

8. Decreased or poor judgmentPeople with Alzheimer's mayexperience changes in judgment ordecision-making. For example, theymay use poor judgment when dealingwith money, giving large amounts totelemarketers. They may pay lessattention to grooming or keepingthemselves clean.What's a typical age-related change?Making a bad decision once in a while.

9. Withdrawal from work or socialactivitiesA person with Alzheimer's may startto remove themselves from hobbies,social activities, work projects orsports. They may have trouble keepingup with a favorite sports team orremembering how to complete afavorite hobby. They may also avoidbeing social because of the changesthey have experienced.What's a typical age-related change?Sometimes feeling weary of work,family and social obligations.

10. Changes in mood or personalityThe mood and personalities of peoplewith Alzheimer's can change. Theycan become confused, suspicious,depressed, fearful or anxious. Theymay be easily upset at home, at work,with friends or in places where they

are out of their comfort zone.What's a typical age-related change?Developing very specific ways ofdoing things and becoming irritablewhen a routine is disrupted.

The Alzheimer's Association 24/7 Helplineprovides reliable information and support toall those who need assistance. Call toll-freeanytime day or night at 1.800.272.3900.

Dr. Matthew Wayne is currently the medicaldirector for Geriatric Medicine at UniversityHospitals Richmond Medical Center and anassistant professor of medicine at UniversityHospitals Case Medical Center inCleveland, Ohio. Dr. Wayne is also Chair ofthe Professional Advisory Board of theAlzheimer’s Association Cleveland AreaChapter. Dr. Wayne is also a valuedmember of the AMCNO and he recentlyappeared on the AMCNO Healthlines radioprogram to discuss this same topic. Tolisten to Dr. Wayne’s Healthlines programgo to our web site at www.amcno.org andgo to the Healthlines link.

Editor’s note: The AMCNO welcomes articlesubmissions from our members. The NorthernOhio Physician does not obtain medicalreviews on articles submitted for publication.

AMCNO members interested in submitting anarticle for publication in the magazine maycontact Ms. Cindy Penton at the AMCNOoffices at (216) 520-1000, ext. 102. �

The Importance of Being Early(Continued from page 13)

THE ACADEMY OF MEDICINEOF CLEVELAND & NORTHERN OHIO6100 Oak Tree Blvd., Suite 440Cleveland, OH 44131-2352Phone: (216) 520-1000 • Fax: (216) 520-0999

STAFF Executive Editor, Elayne R. BiddlestoneTHE NORTHERN OHIO PHYSICIAN (ISSN# 1935-6293) ispublished bi-monthly by the Academy of Medicine ofCleveland & Northern Ohio (AMCNO), 6100 Oak TreeBlvd., Suite 440, Cleveland, Ohio 44131. Periodicalspostage paid at Cleveland, Ohio. POSTMASTER: Sendaddress changes to NORTHERN OHIO PHYSICIAN,6100 Oak Tree Blvd., Suite 440, Cleveland, Ohio44131. Editorial Offices: AMCNO, 6100 Oak Tree Blvd.,Suite 440, Cleveland, Ohio 44131, phone (216) 520-1000. $36 per year. Circulation: 3,500.

Opinions expressed by authors are their own, and notnecessarily those of the Northern Ohio Physician orThe Academy of Medicine of Cleveland & NorthernOhio. Northern Ohio Physician reserves the right toedit all contributions for clarity and length, as well asto reject any material submitted.

ADVERTISING:Commemorative Publishing Company c/o Mr. ChrisAllen, 3901 W. 224th Street, Fairview Park, OH 44126P: (216) 736-8601 • F: (216) 736-8602© 2011 The Academy of Medicine of Cleveland

& Northern Ohio, all rights reserved.

PHYSICIANNORTHERN OHIO



HEALTH INFORMATION EXCHANGE

There is no doubt that health informationtechnology (HIT) is changing the way physicianspractice medicine. The federal government,state governments, commercial payors, otherhealthcare providers, and more importantlypatients, are demanding that physiciansembrace and use HIT. This is especially true inthe areas of electronic health records (EHR) andhealth information exchanges (HIE).

Implementing and using EHR software andelectronically exchanging health information viaHIE present many different issues for physicians.EHR and HIE are inextricably tied together formany reasons, but for physicians one reason isby far the most important – to receive incentivepayments for the meaningful use of EHRsoftware, physicians are required toelectronically exchange health information withother healthcare providers in various patientcare delivery settings. To do this requires afunctional and interoperable HIE infrastructure.

The Ohio Health Information Partnership (OHIP)is the organization heading the developmentand implementation of the statewide HIEinfrastructure. OHIP has developed acomprehensive HIE framework and selected aHIE vendor. From all accounts, OHIP intends toimplement the statewide HIE (for various corefunctions initially) sometime in the second half

of 2011. As part of OHIP’s work in developingthe statewide HIE, OHIP recently published itsrecommendations on the issue of patientconsent. These recommendations, and theramifications that would follow, have raisedsome questions.

I. HIE and OHIPThe notion of electronically exchangingEHRs and other health information amongphysicians and other healthcare providers isnot a new development. In April 2004,President Bush established what hasbecome known as the Office of theNational Coordinator for Health InformationTechnology, which at that time wasdelegated the task to develop a nationwideHIE infrastructure for the exchange anddissemination of EHRs for all Americans.President Obama continued the federalgovernment’s push to incentivize EHR useand the development of a nationwide HIE inJanuary, 2009, just months after beingelected, when he promised that allAmericans would have an EHR capable ofbeing electronically exchanged throughoutthe country by 2014. At the same time,states and other local stakeholders began toexplore and develop statewide and regionalHIEs. For instance, local stakeholders innortheast Ohio, including the AMCNO,came together in a collaborative effort

known as Northeastern Ohio RegionalHealth Information Organization for thepurpose of implementing a secure,confidential, patient-controlled environmentfor a HIE in northeast Ohio.

The federal government’s push to encourageEHR adoption and the development and useof a nationwide HIE infrastructure led to thepassage of the HITECH Act in early 2009. TheHITECH Act authorizes millions of dollars tobe paid to healthcare providers to helpencourage and facilitate the use of EHRsoftware. The HITECH Act also providedmillions of dollars in the form of grants tostates to help fund the creation andimplementation of statewide HIEs.

To date, OHIP has been awarded almost $15million in federal grant money to facilitatethe development and implementation of astatewide HIE. According to OHIP, a truestatewide HIE will permit the exchange ofhealth information across diverse patient caredelivery systems throughout Ohio. In thewords of President Obama and as reiteratedby OHIP, statewide HIE will support cliniciansin making cost effective, fact-based decisionsthat reduce medical errors, decreaseredundant tests and improve carecoordination with the help of timely andstandardized data aggregation. OHIP has avision for the statewide HIE that will makethe exchange of health records sustainable,secure and allow for physicians and otherhealthcare professionals to have patientauthorized access to health information.

II. OHIP’s Opt-In FrameworkOHIP recently proclaimed that one of themost important elements in developing andimplementing a statewide HIE is patientconsent. In February, OHIP published itsrecommendations for addressing patientconsent issues in connection with thestatewide HIE. OHIP recommended that thestatewide HIE operate under an opt-inframework for patient consent.

This opt-in framework requires that patientsprovide express written consent toparticipate in the statewide HIE. In otherwords, patients would need to sign specificconsent forms before their healthinformation is transmitted, shared, used oraccessed via the statewide HIE. OHIP’srecommendation of the opt-in framework isbased on OHIP’s view of Ohio patientconsent laws. According to OHIP, Ohiopatient consent laws require that patientsprovide express consent before healthcareproviders are permitted to share, use oraccess health information for treatmentpurposes of the patient. OHIP’s position onpatient consent requirements, especially in

The Ohio Health Information Partnership(OHIP) Position on Patient ConsentUnder ReviewBy J. Ryan Williams, Esq., Walter and Haverfield, LLP

AMCNO Overview of our Response to the OHIP Privacy Consent Policy

Recently, the Ohio Health Information Partnership (OHIP) requested public comments on theirResearch and Recommendations for Patient Consent Policies for OHIP’s health informationexchange. After detailed discussions and a thorough legal review of OHIP’s consent policy byvarious parties, a detailed comment letter was sent to OHIP on behalf of the AMCNO,Aultman Health Foundation, Care Alliance Health Center, Cleveland Clinic, EMH Health CareSystem, Sisters of Charity Health System/St. Vincent Charity Medical center and Mercy MedicalCenter, Southwest General Health Center, Summa Health System, and University Hospitals.

The parties decided to write and submit a combined letter, as opposed to eachorganization writing and submitting separate letters, to streamline the comment process.We found that many of the organizations shared similar comments and viewpoints. Weall recognized that these issues are complex, and that it is difficult to craft a solution thatcan be consistently applied on a statewide basis which provides a reasonable level ofprotection to both patients whose information is exchanged through the HIE, and toprovider participants in the HIE. In addition, Ohio law regarding the consent issues raisedin the Recommendations is not perfectly clear. The following article provides an overviewof this issue. At press time, OHIP had not yet posted their response to the issuesraised by the AMCNO and the other healthcare organizations. The AMCNO willprovide an overview of OHIP’s response when it becomes available.


HEALTH INFORMATION EXCHANGEthe situations involving the use or disclosureof health information for treatment, hascaused significant concern in the healthcareprovider community. While the legaljustification for OHIP’s position on patientconsent is justifiable in some instances, butnot without equally applicable and pervasivecounter views, OHIP’s position may have amore significant affect – physicians may electnot to participate in the statewide HIE.

III. Consequences of OHIP’s Opt-InFrameworkAn opt-in framework for Ohio’s statewideHIE may create operational andadministrative barriers for physiciansattempting to participate in the HIE. For themajority of physicians that routinely disclosehealth information to other medicalproviders involved in the care of a particularpatient, a requirement that an expressauthorization must be obtained wouldrequire the physician to re-design criticalworkflow aspects of his or her practice.Physicians would need to implement policiesand procedures to ensure that all necessaryauthorizations are obtained and would needto monitor policies and procedures to ensureeffectiveness. Physicians would also need toconsistently verify and re-verify that allnecessary consents have been obtainedbefore sharing information. This verificationand re-verification would need to occur eachtime the physician would like to shareinformation with other treatment providers.For many physicians, the expense (in bothtime and money) associated withredesigning critical workflows would besignificant enough to deter use of the HIE.

The impact of an opt-in framework oncritical workflows is most apparentconsidering current practice in NorthernOhio. Most physicians in Northern Ohio donot distinguish between health informationexchanged in an electronic format, versusmedical information exchanged through apaper-based or oral format. If specificpatient consent for provider-to-providertransfers of medical information in thecontext of the HIE is required, consistencycould require the same for all othermovements of health information betweenproviders, whether by paper, telephonecommunication, oral communication orotherwise. Many physicians in NorthernOhio are not, on a uniform basis, currentlyoperating in such a manner. For example,when a primary care physician refers apatient to a specialist physician for aconsultation, the primary care physician maynot obtain a separate patient consent toshare the patient’s medical information withthe specialist for review.

In addition, physicians would need toallocate office time with patients toinform them of the aspects of theauthorization and the benefits of the HIE.While not significant on a patient-by-patient basis, the aggregate amount oftime educating all of the physician’spatients could be significant. This timewould largely be uncompensated to thephysician. These additional responsibilitiesand requirements may cause physicians tomake practical decisions to forego usingthe HIE in favor of other more traditionalmethods to disclose health information.

An opt-in framework may also hamperpatients’ access to timely and appropriatehealthcare. In an optimum situation,physicians would access the HIE for eachpatient prior to providing services. The opt-inframework would create a presumption thata particular patient had refused to sign theauthorization if the physician was unable tolocate the patient’s information via the HIE.This presumption would apply categoricallyacross the board to all treatment disclosures.Consequently, the physician would notreceive, and would certainly be hesitant inasking for, all appropriate health informationfrom any of the patient’s current or formerhealthcare providers.

The reservations with an opt-in frameworkalso relate to certain risk managementmatters. An opt-in framework sets astandard of care for all treatment uses anddisclosures, not just those uses anddisclosures made through the HIE. Nological basis exists to distinguish uses anddisclosures through the HIE from othernon-HIE disclosures for treatmentpurposes. This could certainly lead tophysicians concluding that they need anexpress authorization to discuss treatmenthistories and medical conditions withother physicians via the telephone.

The use of express authorizations fortreatment disclosures has always beenviewed by physicians as a risk managementtool. Many physicians have, from a riskmanagement standpoint, decided toimplement practices that require expressauthorizations for treatment disclosures.These risk management practices aredesigned to virtually eliminate any risk orliability exposure associated with disclosinghealth information for treatment purposes.OHIP’s opt-in framework, however, makesthese risk management practices look morelike standard protocol, or even worse,absolute legal mandates.

Another example of potential problems withan opt-in framework is the HIPAA

requirement that physicians are notpermitted to condition care on a patient’srefusal to sign an authorization. This wouldnot necessarily affect care that physicianspersonally provide, since physicians cancertainly assure their patients that all carepersonally provided by the physician will beunaffected and uninterrupted. The problemlies with assuring the patient that continued,follow-up, or subsequent care provided byother healthcare professionals will beunaffected by the patient’s decision to refusesigning the authorization. The failure to signthe authorization would in all instancesprevent the physician from sharing healthinformation with other providers fortreatment purposes. Physicians could not beassured that their patients will receivecontinued, uninterrupted, and adequatecare without the ability to share medicalinformation with other treatment providers.

The opt-in framework may ultimately resultin patients providing express opt-inauthorizations that are not supported fully byinformed consent. When authorization isrequired for the use and disclosure ofmedical information, the hallmarkcomponent of a valid authorization is that itis provided by the patient with informedconsent. The physician-patient relationship issupported by a high degree of trust on thepart of the patient in the physician’sknowledge, care and recommendations.Because of this high level of trust, patientsrarely question the recommendations of theirphysicians. This is especially true forrecommendations and requests that thepatient may view as more administrative thanhealthcare related. A physician’s request foran authorization to disclose healthinformation would fall into this category. As aresult, patients would likely sign theauthorization without fully appreciating thesignificance of the authorization.

To date, OHIP has performed a wonderfuljob in developing a functional andinteroperable statewide HIE. However,OHIP’s opt-in framework for patient consentcould be an issue for many healthcareproviders, not just physicians. The overallgoal of the statewide HIE is to facilitate theelectronic exchange of health information,however, if physicians and other health careproviders have difficulties with the opt-inframework it could be a deterrent to theirparticipation in the HIE.

J. Ryan Williams, Esq., is a member of thehealth care practice group at the law firmof Walter & Haverfield LLP. This articlepresents general information and educationon legal developments and does notconstitute legal advice. �


PRACTICE MANAGEMENT ISSUES

For purposes of determining which eligibleprofessionals or group practices are subject tothe payment adjustment in 2012, CMS willanalyze claims data from January 1, 2011- June30, 2011 to determine if the eligibleprofessional has submitted at least 10electronic prescriptions during the first sixmonths of calendar year 2011. Group practicesreporting as a GPRO I or GPRO II in 2011mustreport all of their required electronicprescribing events in the first six months of2011 to avoid the payment adjustment in2012. Even practices that plan to adopt EHRsystems between July and December, 2011 willbe subject to Medicare payment reductions in2012 if the eligible professional has not

submitted 10 claims coded for e-prescribingbetween January and June, 2011.

Coding for E-prescribing or forexemptions from e-prescribing:• G8553 - At least one prescription

created during the encounter wasgenerated and transmitted electronicallyusing a qualified EHR system. Note: Ifmore than one prescription is generatedfor a patient during the same visit, thenthis would count as only ONE instanceof e-prescribing.• G8642 - The eligible professional practices

in a rural area without sufficient highspeed Internet access and requests a

hardship exemption from the applicationof the payment adjustment under section1848(a)(5)(A) of the Social Security Act.• G8643 - The eligible professional practices

in an area without sufficient availablepharmacies for electronic prescribing andrequests a hardship exemption from theapplication of the payment adjustmentunder section 1848(a)(5)(A) of the SocialSecurity Act• G8644 - The eligible professional does not

have prescribing privileges

The Ohio Board of Pharmacy Approved E-prescribing ModulesIf your practice does not have a full EHRsystem capable of generating ane-prescription, you may still meet theMedicare e-prescribing requirements byutilizing a stand-alone e-prescribing module.The following is a list of the e-prescribingmodular systems that are approved by theOhio Board of Pharmacy:

• Allscripts eRx, also known as Allscriptseprescribe (This product used to be free;unclear of the current status)

• NewCrop• OnCallData• MicroMD• Cyber Access (This product used to be

free; unclear of the current status) �

In November, the Centers for Medicare & Medicaid Services (CMS) announced that beginning in2012, eligible professionals who are not successful electronic prescribers may be subject to apayment adjustment. Section 132 of the Medicare Improvements for Patients and Providers Actof 2008 (MIPPA) authorizes CMS to apply this payment adjustment whether or not the eligibleprofessional is planning to participate in the eRx Incentive Program. The payment adjustment in2012, with regard to all of the eligible professionals’ Part B-covered professional services, willresult in the eligible professional or group practice receiving 99% of the Physician Fee Schedule(PFS) amount that would otherwise apply to such services.

Physicians Must E-prescribe by June 30, 2011or be Subject to Medicare Penalties

In accordance with Article VIII the Board ofDirectors voted in March 2011 to makeamendments to the Academy of Medicine ofCleveland& Northern Ohio Constitution andBylaws. In accordance with Article IXAmendments Section 1, of the AMCNOBylaws, these proposed amendments arebeing published to the membership 30 daysprior to the final board vote.

Constitution and Bylawsof the Academy of Medicine of Cleveland

& Northern Ohio

Article IIIMembership

Proposed change in eligibility status:

Section 1. Eligibility. Any legally qualifiedand reputable Doctor of Medicine or Doctor ofOsteopathy licensed to practice medicine inthe State of Ohio, hereinafter referred to as a“Physician,” or an individual who has givennotable service to medicine or who has beenlong active in the interests of the AMCNO, ora healthcare provider that becomes acorporate/group member of the AMCNOthrough a hospital medical staff groupmembership, shall be eligible for membershipin the AMCNO subject to any furtherprovisions by this Constitution and Bylaws and

to such rules and regulations as may beadopted by the Board of Directors. Membersof the AMCNO shall abide by the principles ofMedical Ethics of the American MedicalAssociation and the Constitution and Bylawsof the AMCNO.

BYLAWS

Article IMembership

Proposed change in voting membershipstatus: Active limited member statuswould be changed under this bylawsamendment

(3) Active Limited Members: Active limitedmembers shall be physicians who: (a) are full-time employees of any government agencyand who receive no significant compensationfrom the private practice of medicine; (b) areengaged in full-time scientific research inconnection with an accredited institution oflearning and receive no significantcompensation from the private practice ofmedicine; (c) are engaged in post-graduatetraining in an institution approved for suchtraining by the accreditation council forgraduate medical education, and who provideno direct patient care; or (d) a podiatrist,dentist or psychologist that is included in a

corporate/group membership category of theAMCNO that has been approved forcorporate/group membership by the AMCNOBoard of Directors. Active limited membersshall have the right to vote, hold office and allother privileges of membership.

(B) Non-Voting Membership. Non-votingmembers may be honorary, non-resident,allied, medical student, or associate, ANDphysician-in-training, as follows:

(3) Allied Membership; Qualifications: AnAllied Member shall be one of the following:(A) A physician who resides or is employed inNorthern Ohio who may or may not belicensed in Ohio and who is not activelypracticing medicine; or, upon invitation, aperson holding a Ph.D. degree or its equivalentworking in the field allied to medicine, (B) afull-time teacher of medicine of the arts andsciences allied to medicine who is not a holderof a degree of Doctor of Medicine or Bachelorof Medicine, (C) a Doctor of Medicine not fullylicensed to practice medicine in Ohio who isengaged in Ohio in research, public health, oradministrative medicine; or (D) a podiatrist or/dentist that is not part of a corporate/groupmembership category of the AMCNO. Theseindividuals are eligible to become members ofthe AMCNO upon application and approval bythe Membership Committee of the AMCNO.

Constitution & Bylaws Change

AMCNO Participates in Provider Outreach andEducation (POE) Advisory Group MeetingPalmettoGBA and CIGNA Government ServicesProvide Updates


HEALTH INFORMATION EXCHANGE

The transition to CGS from PalmettoGBA willoccur on June 18, 2011. The AMCNO haslearned that as a result of the sale of CIGNAGovernment Services (CGS) to BlueCrossBlueShield of South Carolina, there have beenchanges to their Jurisdiction 15 (J15) OhioPart B EDI Strategy. While CGS will assumesupport for the Ohio Part B EDI submitters,they have elected to sub-contract withPalmetto GBA to continue to support theOhio Part B EDI workload on the current EDIGateway, GPNet. What this means for theOhio Part B provider community is that therewill be no change in connectivity ortransmission of EDI transactions for the J15A/B MAC. Physicians should continue to sendclaims and receive remittances to and fromthe same front-end system they are currentlyusing. CGS will assume responsibility for theEDI Help Desk support at a later date. In theinterim, please continue to contact the EDITechnical Support Team for technicalassistance at 1-866-308-5438.

In order to prepare for the remainder of thetransition J15 providers may wish to referencethe CMS MLN Matters article "Preparing for aTransition from an FI/Carrier to a MedicareAdministrative Contractor (MAC)", availablefrom the following CMS Web page:www.cms.gov/MLNMattersArticles/downloads/SE1017.pdf. Knowing what to expect willminimize disruption in your Medicare business.Most provider action items will take placewithin the 90 day window leading up tocutover: EFT Re-enrollment – 90 days prior tocutover; EDI Preparations – 45 - 60 days priorto cutover; and LCD publication – 45 daysprior to cutover.

EFT RE-enrollment - Ohio Part B providerswho are currently enrolled with Palmetto GBAto receive their Medicare paymentselectronically must submit a new CMS-588 EFTAuthorization Agreement to CIGNAGovernment Services immediately uponreceipt of notification. Request letters for OhioPart B providers were mailed the week ofMarch 7, 2011 for CMS-588 – your timelycompletion of the EFT agreement will ensure

continued receipt of electronic Medicarepayments following the completed transitionof claims processing and payment operationsto CGS. Once CGS processes your EFTapplication, they will send out a confirmationletter and it will remain on file with CGS untilthey begin processing claims. This will notdisrupt the payments processed by the currentcontractor.

EFT re-enrollment for a group - If you arepart of group of physicians who reassigntheir individual benefits to the group itself,then it is only necessary to complete one EFTre-enrollment at the group level. There is noneed to submit additional EFT applications foreach member of the group. In theseinstances, your EFT application should becompleted for the “Pay-to” PTAN. You willonly receive one confirmation letter fromCGS to indicate that the group’s EFT re-enrollment was completed.

CMS-588 EFT Authorization Agreement:www.cms.gov/cmsforms/downloads/CMS588.pdf

J15 EFT resources available on the J15 EFTHomepage: www.cignagovernmentservices.com/j15/eft.html and an EFT Web-based tutorial:https://www.cignagovernmentservices.com/captivate/J15588/CMS588Form.htm

Electronic data exchange – EDI submitterswho have completed an EDI enrollment formwith Palmetto GBA do not need to re-enroll orcomplete a new application with CGS.

Payer ID update – Physicians will need tochange their Contractor/ Payer ID forsubmitting electronic claims to CGS at cutover.The new Contractor/ Payer ID for OH Part B is15202. Physicians and/or your clearinghouseor vendor should use this Contractor/ Payer IDfor submission of electronic claims to CGSafter June 18, 2011.

CGS is subcontracting with Palmetto GBA toprovide 5010 EDI translation services for OhioPart B claims starting at cutover on June 18,

2011 and continuing through September 30,2011. During this time period, Palmetto GBAwill be supporting 5010 testing, translation,and CEM integration to include second levelhelp desk support. CGS expects to start 5010translation during the month of September.EDI resources J15 EDI Homepage:www.cignagovernmentservices.com/j15/edi.html

Local coverage determinations (LCDs) -CGS has worked closely with Palmetto GBA toidentify and consolidate current LCDs. These“Future Effective Documents” are availablefrom their Website at: www.cignagovernmentservices.com/j15/LCDs.html. Remember,effective dates for CGS’ Ohio Part B LCDs isJune 18, 2011. Until that time, continue tofollow the policies and guidelines in placewith Palmetto GBA.

LCD Crosswalk - In an effort to assist physiciansin understanding the key differences betweenLCDs currently being followed and those thatCGS will use after June 18, 2011, CGS hasdeveloped an LCD crosswalk. It is available here:www.cignagovernmentservices.com/j15/LCDCrossWalk.xls

Contacting CIGNA Government Services -as of this printing, mailing addresses for thesubmission of paper claims, providerenrollment applications, refund checks,appeals, and others were not available and willbe updated with the transition. Those detailsare currently being finalized and will be madeavailable in the near future. Please rememberthat until notified by CGS, you shouldcontinue to direct your requests and inquiriesto Palmetto GBA for timely completion.

However, the CGS J15 help desk is now available.The toll-free implementation help desk is forphysicians with specific questions related to thetransition. Telephone number: 1.877.819.7109,Hours of Operation: 8:30 am - 4:30 pm CT,Monday – Friday. J15 inquiries – see emailform www.cignagovernmentservices.com/J15Questions.html. Stay connected - Web sitewww.cignagovernmentservices.com/J15

J15 list serve – the CGS ListServ is the fastestand easiest way CGS can communicate newsand information related to J15 transitionactivities. New Customers may register at:www.cignagovernmentservices.com/medicare_dynamic/ls/001.asp. NOTE: If you are alreadyreceiving email updates from your currentcontractor, your email address has likely beenadded to the CGS J15 ListServ database.

J15 news page - This page will featurenews items directly from CMS and CGSregarding the J15 transition:www.cignagovernmentservices.com/j15/News.html �

At a recent POE meeting, the AMCNO was provided with an update on the Jurisdiction 15 transitionto CIGNA Government Services (CGS). By way of background, CIGNA Government Services (CGS) iscurrently a wholly owned subsidiary of CIGNA Corporation with over 40 years experience as aMedicare contractor. Beginning on May 1, 2011, CGS will be acquired by Blue Cross/Blue Shield ofSouth Carolina. CGS is currently evaluating a name change – with the hope of retaining the “CGS”acronym. BC/BS of SC also works with PalmettoGBA and it is possible that some items may behandled by them going forward, however, it is important to note that CGS will be taking over allaspects of the Medicare Administrative Contractor (MAC) Part B function for Jurisdiction 15.