September 2015 Regulatory Update:
Collecting Deductibles at the Time of Service
MSNJ’s position is that there is no legal or practical impediment to the collection of deductibles at the time of service. After a number of meetings with regulators and Horizon over the past six months, Horizon has recently informed MSNJ that it will allow physicians to collect deductibles at the time of service.
While it is not Horizon’s preferred collection process, Horizon has modified its payment policy and will allow physicians to charge and collect at the time of service with certain exceptions, including where the patient has an HRA account. Additionally, Horizon will require that any overpayment be refunded to the patient within 30 days. MSNJ will continue to work with Horizon and will notify members of Horizon’s change in payment policy. We will recommend that practices adopt policy or written guidelines to describe how and when they will collect at the time of service.
This issue was a priority for MSNJ in response to complaints by many of our members who have been unable to collect deductibles, especially with the popularity of high-deductible plans. Horizon now joins AmeriHealth and UHC in allowing physicians to collect deductibles at the time of service.
BME Requires Two CME Credits on End of Life for Each License Cycle
On September 8 the NJ Board of Medical Examiners released its final rule requiring that physicians take two credits of Category 1 continuing medical education on end-of-life topics every biennial license cycle. MSNJ opposes topic specific mandates of CME. The statute requires two credits of CME in each license cycle and is silent on the Category. In our comments we urged the BME to exercise its discretion and only require Category 1 credits in the first license cycle and to allow Category 2 credits in subsequent license cycles. The BME recognized that the Category was not mandated by statute, but decided that the rigor of Category 1 CME would ensure that physicians receive the best possible review of end-of-life issues.
Medicare 2016 Physician Fee Rule
On June 8, MSNJ filed comments on the 2016 Medicare Physician Fee Rule. The proposed regulations are the first since the repeal of the sustainable growth rate (SGR) and the program’s movement toward a new payment system. We objected to expansion of public reporting on the Physician Compare website until data issues can be resolved. We also objected to the expansion of the value-based modifier program. We supported separate payment for advance planning services and collaborative discussions between physicians. We also supported the automatic renewal of opt-out status for physicians who have become private contractors under Medicare.
MSNJ has continued to provide information to physicians to help them be ready for the October deadline for using ICD-10. Physicians must begin to use ICD-10 for Medicare claims and most commercial plans on October 1 or they will be subject to payment interruption. Of the New Jersey payers surveyed, only QualCare will be able to process claims using both ICD-9 and ICD-10 on October 1. Read MSNJ’s report on payers’ adoption of ICD-10.
June 2015 Regulatory Update:
Collecting Deductibles at the time of service
MSNJ has met with the Department of Insurance and a number of carriers to express our opinion that physicians should be permitted to collect deductibles at the time of service. We believe that there is no legal or practical impediment to collecting deductibles at the time of service and, because of the proliferation of high deductible plans, it is becoming more imperative that physicians be permitted to do so. The Department of Insurance has confirmed that there is no legal barrier to this practice. We will continue our efforts to convince all carriers who cover lives in New Jersey to permit this.
End of Life CME Waivers
Our last information from the Board of Medical Examiners (BME) is that the letters granting waivers from the license requirement to take two credits of end of life CME before the end of June have not yet been mailed. Importantly, BME advises that unless a licensee has no patient care responsibility, the waiver request will be denied and the physician should take the two required credits. There will be a 90 day grace period. (Note that MSNJ’s website has free CME programs on end of life.)
MSNJ Expresses Continued Concerns over ICD-10
In March MSNJ joined with AMA and other national and state medical societies expressing continued concern over the October 2015 implementation date. We question the adequacy of end-to-end testing; the potential for significant payment disruption; and, the ability to ensure that quality measurement programs are correctly calculated by the October start date. Read more. We later wrote to the New Jersey Congressional Delegation asking that it address the issue.
MSNJ Supports Bill to Amend the Sunshine Act
MSNJ joined together with New Jersey publishers to request that Senator Menendez sponsor H.R. 293, a bill that would exempt peer reviewed journals, reprints, textbooks and other material from reporting under the Sunshine Act. Read our letter. MSNJ also joined virtually all of organized medicine in a letter to the sponsor of the bill, Congressman Michael Burgess, MD. The bill would also clarify that CME which meets the standard for independence is exempt from reporting.
CMS Will Improve Medicare Advantage Network Rules
The 2016 Medicare Advantage (MA) draft policies recently released by CMS will require MA plans to pay more attention to their networks. MA plans will be required to establish and maintain proactive, structured communications with physicians to assess their true availability, including specifically whether they are accepting new patients, and verify continued compliance with MA network access requirements. Plans must address complaints related to enrollees being denied access to a contracted provider and update online directory information in real-time. MSNJ and the AMA have consistently advocated for improvements to MA plan network rules and will continue to do so.
March 5 2015 Regulatory Update:
MSNJ Participates in PIP Rulemaking
This week MSNJ representatives met with Peter Hartt, the Commissioner of the Department of Insurance, and his staff to discuss its latest version of proposed rules on PIP internal appeals. We expect the rule proposal to include changes recommended by MSNJ and other stakeholders. For example, we believe that the proposal will delete a 50% co-payment penalty for physicians who do not obtain approval before rendering services which are later deemed to be appropriate. The rulemaking has spanned a number of years and is aimed at making the appeal rules uniform among the carriers. MSNJ will file formal comments when the proposal is released.
CMS is Responsive on Medicare Issues:
CMS Delays Final Rule on Reporting & Returning Medicare Overpayments
Last week CMS announced that it will delay by a year publication of its final rule on reporting and returning Medicare overpayments due to the rule's complexity and number of comments. MSNJ was among those raising serious concerns about the scope and implementation of the rule. We challenged: the ten-year look back period; the time and cost for physicians to comply; the 60 day time period to respond; and, the trigger of a reporting obligation without an actual knowledge requirement. In other words, physicians might be deemed to "know" of an overpayment and be obligated to report and repay within 60 days in situations where they had no knowledge of the overpayment. Read our comments. We are asking the AMA to do more advocacy on this proposed rule.
CMS Responds to MSNJ on Medicare RAC Audits
Last week CMS responded to MSNJ's complaint about the several year-long backlog of Medicare appeals due in large part to the RAC audits. CMS is now requiring the RACs to: decrease the number of records requested of physicians to be more reflective of the denial rates; make the RAC Medical Director (who is a physician) available to speak with physicians; delay the contingency fee paid to RACs until the second level of appeal is exhausted; require an overturn on appeal rate of less than 10%; require a 95% accuracy rate on automated record reviews. Physicians will be paid interest on claims that are overturned on appeal back to the date of the recoupment. Our specific request that a physician of the same specialty be the reviewer has not been met, but CMS advises that the RAC should have a panel of specialists available for consultation and that a physician may speak with the RAC Medical Director. We recommend that members ask the Medical Director for a review by one of the appropriate panel specialists. We will continue to pursue this.
MSNJ Weighs-In on Exchange Plans--Network Adequacy & Formulary Issues
In comments filed on December 22 MSNJ urged CMS to tighten its network adequacy and formulary requirements for qualified health plans offered through the exchange. We took the position that web site plan directories should be updated within 20 days of changes in provider status as is the regulatory standard in New Jersey. We also argued for more robust formularies, including an emergency and standard exception process for circumstances where there is not an appropriate formulary medication.
MSNJ Urges FDA to Keep Same Surgery Exemptions for Autologous HCT/P Implantation
In comments filed on December 22 MSNJ urged the FDA to specify in its guidance document that the use of centrifuge during autologous human cells, tissue, or cellular or tissue based product (HCT/P) transplantation is part of the "same surgical procedure" exception. Minimal processing of HCT/P is exempt from FDA regulation.
CARRIER SPECIFIC ISSUE: HORIZON
Horizon Unilateral Contract Amendment Update
We previously reported that in response to MSNJ's complaints about its unilateral contract amendments, Horizon would do three things: extend the time to respond to audit and record requests; consider our request that physicians be permitted to collect deductibles at the time of service; and, be more transparent with patients and physicians on any future reference-based insurance plans. Unfortunately, Horizon subsequently informed us that the extension from 20 to 45 days on record requests would only apply to risk adjustment audits. Horizon has agreed that it will consider reasonable requests for extensions of time on other record requests. Read Horizon's statement. We are continuing our efforts with Horizon and the Department of Banking & Insurance to support the right of physicians to collect deductibles at the time of service. We are meeting with DOBI on March 2. We will also discuss unilateral contract amendments, including the notice provision and time to comply with audit/records requests.
December 8, 2014 Regulatory Update:
Surgical Practice Notice:
The New Jersey Department of Health has published a final notice at 46 N.J.R. 2286(a) advising of a final registration period for surgical practices that are currently operating. Any surgical practice that did not previously register has 60 days from November 17 to do so. We have been advised that the Department is concerned about procedures being performed in rooms of facilities where anesthesia is being used. The notice demonstrates this concern by indicating that the application should include redacted records that demonstrate the administration of conscious sedation or general anesthesia. Physicians who are administering conscious sedation or general anesthesia to perform procedures in their offices, and who do not know whether they fall within an exemption, should review the notice and consult with an attorney if they have questions.
New PIP Rulemaking
The state has shared its plans to conduct further rulemaking on the internal appeals procedure for PIP claims with a goal of standardizing the process for all carriers. MSNJ was invited to discuss the forthcoming rule proposal which was the result of comments filed by many in the regulated community, including MSNJ, concerning the appeal process. We have provided informal comments and will formally comment when the proposed rule is published.
MSNJ filed comments on a number of state rule proposals since the last report. These include:
MSNJ supported the proposal on stronger tobacco control.
We will oppose the repeal of the nurses standard of care for the same reasons that we opposed the proposal a year ago. The rationale of the proposal is that nurses are facing barriers to employment at hospitals in non-nursing positions according to NJHA. Our members inform us that nurses are employed in hospitals in non-nursing positions. Even if this were a barrier, the existing regulation states by example that it only applies when employed as a nurse. And, there is no reason to repeal an existing standard of care for nurses employed as such in a hospital setting.
We are urging the BME to exercise its authority and discretion to permit physicians to fulfill the biennial requirement of two credits of CME on end of life care in either Category 1 or 2. Currently, the law requires two credits for each biennial license renewal. However, the law is silent on the issue of Category 1 or 2.We believe that many physicians should have the discretion to take Category 2 credits, especially after having completed two Category 1 credits. We point out that many physicians do not have direct patient care such as pathologists and radiologists and two credits of Category 1 end of life care may be sufficient.
MSNJ Advocates Network Adequacy Standards
MSNJ has banded with the AMA and other state and specialty societies in a letter dated November 16 to the chairs on the National Association of Insurance Commissioners (NAIC) urging them to adopt meaningful standards on network adequacy as they develop a managed care plan network model act. Among the issues that must be addressed:
In addition to the above network adequacy advocacy, we are studying NAIC’s model law on which comments are due January 12, 2015 and an ACA federal rule proposal that addresses network adequacy in qualified health plans on the exchanges. Those comments are due on December 22. We will likely sign onto AMA comments on these proposals or file comments of our own.
MSNJ Objects to Expanded Scope of Practice for Audiologists under Medicare
In September, MSNJ joined virtually all of organized medicine objecting to H.R. 5304 a bill that would give audiologists unlimited direct access to Medicare patients without a physician referral and would grant a “limited license physician” status for audiologists.
MSNJ Supports Legislation to Amend Sunshine Act
In October, MSNJ joined with virtually all of organized medicine to support H.R. 5539, a bill that would exempt reporting of value received from the pharmaceutical industry for medical textbooks, peer-reviewed medical reprints and journals under the Sunshine Act. The bill would also continue the current exemption applicable to certified and accredited CME that meets the criteria demonstrating independence from the pharmaceutical industry. MSNJ has a long held position that these materials are exempt from reporting under the Sunshine Act.
September 11, 2014 Regulatory Update:
Hospital Medical Staffs
On July 1 MSNJ joined with the AMA and virtually all of organized medicine to seek a delay of implementation of a new final CMS rule, effective July 11, which will allow multi-hospital systems to have a single, integrated medical staff for the hospital system at large. This presents a plethora of issues with national and multi-state systems. We wrote to CMS seeking an extension of the compliance date until May 12, 2015 because most medical staffs are unaware of the rule allowing a single staff at a multi-site hospital and unprepared to opt-out to a single medical staff. Either path will require bylaws changes. We are concerned that with the impending compliance deadline multi-site hospitals will be more likely to require a single staff than medical staffs will be able to opt-out since the opt-out path is not clearly defined.
Sunshine Act’s Open Payments
On August 5 MSNJ joined with the AMA and virtually all of organized medicine to object to recent proposed changes to the Sunshine Act’s regulations. In particular, we objected to the revocation of the exemption for CME activities and to request a delay in time for physicians to register, review, and dispute their data in the Open Payments System before publication. We have not been successful in a delay of the September 30 publication date, but CMS has agreed to extend the dispute time period in the same number of days that its system is down.
On August 8 MSNJ filed comments with the FDA supporting its recent rule proposal that would extend is jurisdiction to cover additional tobacco products such as e-cigarettes, cigars, and hookahs. New Jersey already has already passed laws covering much of what the FDA is now seeking to regulate.
2015 Medicare Physician Fee Schedule
On September 2 MSNJ filed comments on the 2015 Medicare Physician Fee Rule proposal, a 700-page document. This is an annual regulatory rite during which CMS decides how the pool of Medicare funds will be distributed among physicians and other professionals resulting in the Medicare fee schedule. This is a zero sum game, so whatever is taken from one specialty is given to another. CMS also proposed other changes in payment rules and programs. We weighed in on New Jersey specific issues and issues of general importance to all physicians. This year we commented on CMS’s failure to align the quality reporting programs and the consequent potential total fee penalty of 11% in 2017, problems with the “Open Payments” Program, and the need for professional liability insurance premium amounts to be updated annually instead of a five-year schedule.
Overdose Prevention Act
On September 5 MSNJ filed comments on proposed regulations to implement the Overdose Prevention Act. MSNJ supported the legislation. The Act was passed to stem the number of deaths from overdoses by providing civil and criminal immunity to overdose victims, peers who assist, and physicians who prescribe an opioid antidote for a person likely to be in a position to administer the antidote. In addition, the law provides for immunity from any professional disciplinary action. Physicians must, however, provide information to the nominal “patient” before prescribing. The regulatory amendments were necessary because of existing regulatory requirements on the necessity for a physical exam and patient follow-up. An amendment to the definition of “patient” was also required since the prescription would be written for the person in a position to administer the antidote, not the ultimate end-user. The proposed regulation did not include language on immunity from disciplinary action. We filed comments requesting that the BME do so. In addition, we asked that the regulation spell out that physicians may rely on information approved by the Department of Health. We also asked that the exception created for patient follow-up be clarified by stating that the duty of follow-up is not required for either the end-user or the nominal patient.
A FINAL NOTE:
END OF LIFE CME REQUIREMENTS
The New Jersey Board of Medical Examiners requires 100 continuing medical education credits, of which at least 40 of such credits shall be in Category I. Commencing with this biennial renewal period which started on July 1, 2013, two of the 40 credits in Category 1 courses shall, pursuant to P.L. 2011, c. 145 (C.45:9-7.7), be in programs or topics related to End-of Life care.
MSNJ recently met with representatives from the BME who informed us that they would not designate or suggest specialists who would likely receive a waiver from the requirement. However, the BME will accept a group waiver letter so long as each member of the group signs the letter. In addition, the BME warned that it has historically granted more extensions of time to comply than waivers. Waiver applications are due on April 30, 2015.
BME advised that it will interpret the topic of end-of-life care very broadly to include a wide range of topics. MSNJ has made arrangements with an on-line resource (Education in Palliative and End-of-life Care) for you to obtain the credits needed via long distance learning - and at a 15% discount to members. The following modules are thought to meet the requirements. Each module is designated for 1 AMA PRA Category 1 Credit™ (cost to MSNJ members about $25.50 per credit):