Shout it from the rooftops: Success (finally)! Last night, medicine achieved the biggest victory since the passage of Texas' 2003 tort reform liability protections. Just hours before a 21-percent pay cut to physicians was set to take effect, the Senate approved the bill to repeal Medicare's fatally flawed Sustainable Growth Rate (SGR) formula, permanently and immediately.
After 12 years and 17 temporary, cut-averting patches, both sides of the political aisle and both chambers of Congress worked together to pass the Medicare Access and CHIP Reauthorization Act, which was awaiting President Obama's signature early Wednesday morning.
TMA has been strongly advocating for repeal of the SGR for years. In a statement, TMA President Austin I. King, MD, extended his "sincere thanks to the United States Senate — especially our own Sen. John Cornyn — for taking this momentous step."
Indeed, the bill had support from Texas Senator Cornyn, who substantially helped get the bill across the finish line. U.S. Reps. Michael Burgess, MD, and Kevin Brady did some heavy lifting for years to see the bill through to passage. Senator Ted Cruz voted against the legislation.
"Eliminating the constant threat of Medicare payment cuts means that we can focus our energies on improving this new law. We can focus our energies on removing the bureaucratic impediments that get in the way of good patient care. We can focus our energies on enacting substantive and fundamental Medicare reforms that will help us provide lifesaving, life-sustaining, and life-enhancing care to our senior citizens, military families, and Texans with disabilities," Dr. King said, referring to the bill's passage as "13 very long and arduous years in the making."
"I want to thank my predecessor TMA presidents who have kept the movement alive, the thousands of Texas physicians and patients who have visited and written and called their representatives and senators to demand repeal of the SGR formula, and the lawmakers who heeded our call. And the entire TMA family sends, in particular, a warm and most heartfelt appreciation to U.S. Reps. Michael Burgess, MD, and Kevin Brady and to Senator Cornyn. Their determination and grit over the past two years, obtaining bipartisan agreement on the policy, have made this day possible.”
The bill also contains provisions that protect state liability reforms and ensures the care standards and guidelines in the Affordable Care Act, Medicare, or Medicaid statutes can't be used to create new causes of legal action against physicians. U.S. Rep. Henry Cuellar (D-Texas) worked tirelessly to insert this language into the bill.
If you're a physician who participates in Medicare, you're probably wondering what this means for claims processing. The American Medical Association says Medicare should begin processing claims tomorrow for services provided in April at the rates that were effective before the 21-percent cut was to take effect. Under the provisions of the bill, the fee schedule conversion factor will increase by 0.5 percent on July 1, 2015, and by another 0.5 percent on Jan. 1, 2016.
The bill contains sweeping changes for how Medicare pays doctors. The bill directs the secretary of the U.S. Department of Health and Human Services "to establish a Merit-based Incentive Payment (MIP) system under which eligible professionals (including physicians, physician assistants, nurse practitioners, clinical nurse specialists, and certified registered nurse anesthetists) shall receive annual payment increases or decreases based on their performance." It also "requires specified incentive payments to eligible participants in an alternative payment model."
For more about the legislation, read this section-by-section bill analysis. The AMA has some helpful resources, including highlights from the bill and a chart comparing the new bill to current law.
TMA has heard from a handful of member physicians who recently discovered they're the victims of tax fraud. Unfortunately, this is nothing new. Last year, more than 100 TMA members notified the association someone had stolen their Social Security numbers and attempted to claim their tax refunds. The association learned the crime's victims also included physician assistants, advanced practice registered nurses, dentists, podiatrists, and pharmacists.
Texas is one of 49 states and the District of Columbia affected by this con. So far, the perpetrators haven't been caught.
Please notify TMA if you have been a victim of tax fraud. The association can then convey the scope of the situation to the proper authorities. Contact the TMA Knowledge Center by telephone at (800) 880-7955 or by email.
With tax filing day upon us, it's never too late to take some preventive measures to avoid being a victim of fraud in the future.
The Secret Service recommends all physicians, regardless of whether they have been victimized, visit www.experian.com/fraud and place themselves on a 90-day credit fraud alert. This could potentially slow or halt further attempted identity theft activities. While not every physician is at risk of identity theft, this is a suggested precautionary measure.
The American Medical Association offers the following guidance for physicians affected by this scam:
- File a paper return, and attach a Form 14039 Identity Theft Affidavit to explain what happened.
- Attach copies of the 5071C letter and any other notices from the Internal Revenue Service (IRS) to your tax return. If you have not received notice from the IRS but believe your personal information may have been used fraudulently, call the IRS Identity Protection Specialized Unit at (800) 908-4490.
LifeLock is a TMA group discount program vendor that offers a suite of services to help protect against identity theft. TMA members receive a 20-percent discount.
The North Carolina Medical Society suggests contacting the following agencies if you learn your Social Security number has been used fraudulently:
- File a complaint with the Federal Trade Commission (FTC), which recommends other immediate steps and provides helpful information on its website.
- File a local police report. Provide all documentation available, including any state and federal complaints you filed. This likely will be necessary if financial account fraud occurred as a result of the identity theft. If the fraud is solely tax-related, however, the police report will be necessary only if the IRS requests it.
- Call the Social Security Administration's (SSA's) fraud hotline at (800) 269-0271 to report fraudulent use of your Social Security number. In case your number is being used for fraudulent employment, you also can request your Personal Earnings and Benefit Estimate Statement on the SSA website or call (800) 772-1213. Check it for accuracy.
- Consult the U.S. Department of Justice website for additional information on fraud and identity theft.
The Federal Bureau of Investigation offers several steps you can take to make it harder for thieves to steal your personally identifiable information:
- Check your credit report regularly.
- Don't carry around your Social Security card or any document containing your Social Security number.
- Shred documents that contain sensitive information.
- Only provide your personal information when absolutely necessary. Also, keep track of who has your information, as it could help determine the source of a breach if you become a victim of identity theft.
- Use firewalls and antivirus software to protect your personal computers.
- File your taxes as early as possible. Criminals file their fraudulent returns early to obtain refunds before the legitimate filer submits a return.
- If you're not required to file a tax return, file one anyway to prevent someone else from filing a false return in your name and to be alerted in case someone has already filed a false return in your name.
With roughly six weeks to go in the Texas Legislature, lawmakers near the finish line in drafting a state budget for the next two years with significant improvements over last session that march the House of Medicine closer to accomplishing its goals. With House and Senate committees in full swing as well, TMA is tracking a plethora of bills on the move that could help or hurt medicine's agenda.
"It's too early to determine bill outcomes. But there are some we like, some we don't, and some that are works in progress that we are pushing to good outcomes," TMA Vice President of Advocacy Darren Whitehurst said.
After a marathon session, the House approved its version of the state budget in April, wading through about 300 amendments. The Senate conversely approved its budget with no amendments earlier this week. The Senate and House will appoint conference committees to reconcile the differences between the two drafts.
Despite some gaps between the two versions, TMA lobbyist Michelle Romero says each has its own strengths that increase spending in key TMA priority areas, and the final budget likely will settle in medicine's favor.
The House and Senate budgets stand at roughly $210 billion for 2016-17, a nearly 2-percent increase over the current budget. House Bill 1 has more money for Medicaid and mental health; the Senate plan has more money for graduate medical education (GME) and women's health.
The Senate budget puts $41 million into GME expansions, versus the House's $28.6 million. The vehicle to put the GME expansion money into action, Senate Bill 18, by Senate Finance Committee Chair Jane Nelson (R-Flower Mound), passed the Senate and heads to the House. Rep. John Zerwas, MD (R-Richmond), is expected to pick it up and sponsor a House version. The House and Senate budgets also boost formula funding for medical schools' teaching costs and for primary care programs, albeit at varying levels.
In another preliminary win for medicine, the House Licensing and Administrative Procedures Committee passed a stand-alone bill by Rep. Drew Darby (R-San Angelo), House Bill 2089, to eliminate the $200-a-year occupations tax on physicians and other Texas professions. The measure was also folded into a separate bill, House Bill 7, which seeks to eliminate a number of budget gimmicks and ensure that dedicated funds are used for their intended purposes.
The Senate budget does not, however, include the $460 million rider in the House to increase primary care physicians' Medicaid payments to Medicare rates. But Ms. Romero is optimistic there is opportunity to retain the money in the final version, and says, "In totality, both budgets do more for our issues over last session."
Lawmakers took one step closer to holding Medicaid HMOs more accountable for their network adequacy when Senate Bill 760 by Charles Schwertner, MD (R-Georgetown), cleared the Senate and heads to the House.
Senator Juan "Chuy" Hinojosa's (D-McAllen) Senate Bill 207, which heads to a vote before the full Senate, sets clearer standards for Medicaid fraud investigations by the Office of Inspector General. It clarifies that a "credible allegation of fraud" does not include unintentional technical or clerical errors and requires "probable cause" for payment holds.
Ms. Romero says, "It's a better standard that clarifies things for all parties involved: providers, the state, and SOAH (State Office of Administrative Hearings)," which oversees these cases.
But the red tape for physicians doesn't stop with the Medicaid program, and legislation to help physicians improve overall practice efficiency is moving along.
The House is poised to take action on Senate Bill 195 (by Senator Schwertner) after the Senate approved the move to shift the Prescription Drug Monitoring Program to the Texas State Board of Pharmacy from the Department of Public Safety (DPS). TMA also won a provision in the bill to eliminate the state Controlled Substances Registration permit physicians must get — in addition to their Drug Enforcement Administration license — to prescribe. Ongoing hang-ups in the state process — handled by DPS — have cost many physicians a temporary suspension of their hospital and prescribing privileges.
House Bill 1514 by Rep. J.D. Sheffield, DO (R-Gatesville), would help clear up some hassles for physicians dealing with health plans sold in the Affordable Care Act exchange. House Insurance Committee members took up the bill to require health plans to clearly identify exchange plans on members' identification cards with the letters "QHP" and whether that coverage is subsidized with the letters "QHPS." Under federal rules, if patients with subsidized exchange coverage default on their premiums for 90 days, health plans can recoup payments in the latter 60 days of that grace period.
Consumer groups consider the labeling discriminatory toward patients of certain financial means. But TMA lobbyist Patricia Kolodzey says it's no different than patients carrying a card differentiating Medicaid coverage, and HB 1514 would do nothing to disclose patients' income status. Rather, the bill reduces the administrative burden on physician practices to discern patients' coverage, she says, and allows physicians to communicate with patients about the importance of paying their premiums and to plan treatment accordingly, particularly long-term treatment.
TMA also supports House Bill 1624 by Rep. John Smithee (R-Amarillo) to require health plans to publicly display their network directories and drug formularies on their websites for physicians and patients to check.
"The Flood Gates Are Open"
With committee hearings fully under way, "the flood gates have opened," as TMA lobbyist Dan Finch puts it, and TMA continues to pour over bill filings, amendments, substitutions, and testimony that could undermine medicine's agenda.
As House Insurance Committee hearings went into the wee hours of the morning, TMA physicians testified against an attempt to ban balance billing for emergency care under House Bill 1638 (by Representative Smithee). As filed, the bill would send physicians and health plans to arbitration over costs not covered under patients' insurance. A battle is under way, too, to preserve existing avenues available to patients to resolve billing disputes through mediation. House Bill 3133 (also by Representative Smithee) eliminates the current $1,000 threshold for patients to take balance bills from facility-based physicians to mediation, which could make the process costly for physicians.
TMA physicians testified against any prohibition on balance billing for out-of-network services and emphasized that patients must continue to be the initiators of any requested mediation.
TMA also opposed House Bill 3102 by Rep. John Frullo (R-Lubbock), which, as filed, requires physicians to adhere to a binding quote provided three days in advance of any services and forfeit any additional amounts doctors incur for unanticipated services.
At hearings, Representatives Smithee and Frullo both indicated their bills were a work in progress, Ms. Kolodzey says, and substitute bills were forthcoming. Stay tuned!
That same committee also took up two telemedicine bills — one good for medicine, one bad.
Raising alarm bells, House Bill 2172 (by Representative Smithee) would skirt current Texas Medical Board regulations and permit physicians to diagnose over the telephone without an initial face-to-face visit to establish a patient-physician relationship. On the other hand, TMA is backing a measure — House Bill 2348 by Rep. Four Price (R-Amarillo) — to ensure physicians get paid fairly for services like after-hours phone or telemedical consults by requiring health plans to pay local doctors the same as they would if hiring outside telemedicine vendors for those services.
On the scope-of-practice front, TMA continues to put out fires.
The House Public Health Committee took up House Bill 1263 by Rep. Richard Raymond (D-Laredo) allowing physical therapists to directly treat patients without first seeking a diagnosis and referral from a physician. Also on the committee agenda, House Bill 2602 by Rep. Garnet Coleman (D-Houston) would allow optometrists, advanced practice registered nurses, and physician assistants more leeway to prescribe Schedule 2 drugs under delegation by a physician.
Progress on Public Health
Meanwhile, medicine saw progress on a couple of packages of TMA-backed legislation on public health and end-of-life issues.
The House Public Health Committee voted out a pair of vaccination bills by Representative Sheffield. One changes requirements under the state's immunization registry, ImmTrac, to store childhood vaccination records until age 26 instead of age 18 and ensure they are available past college and into early adulthood. A second bill gives parents the right to know the number of students in their child's school who have opted out of vaccinations.
TMA worked to improve bill language before the Senate's approval of Senator Schwertner's bill, Senate Bill 538, to overhaul and coordinate local and state management of infectious disease emergencies. The Senate Education Committee, meanwhile, approved Senator Hinojosa's bill, Senate Bill 66, requiring schools to stock auto-injectors in schools. At press time, a House hearing was not far behind.
Hearings got under way on legislation tackling end-of-life issues debated for many a session.
As TMA keeps an eye out for threats to physicians' moral conscience and professional ethics, a pair of bills medicine supports got airtime before the House State Affairs Committee: House Bill 2351 by Rep. Patricia Harless (R-Spring) would require hospital ethics committees to adopt a nondiscrimination policy, and House Bill 3074 by Rep. Drew Springer (R-Muenster) classifies artificial nutrition and hydration as ordinary, not extraordinary, care.
Even though the legislature is picking up speed, it's not too late to keep up through the TMA Legislative News Hotline or to make a final push for medicine in person at TMA's First Tuesdays at the Capitol. The last lobbying event is May 5. Register now!
Amy Lynn Sorrel, associate editor of Texas Medicine, prepared this special supplement to Action.
Meeting meaningful use criteria may get a little easier for physicians if the Centers for Medicare & Medicaid Services (CMS) adopts draft rules that propose to standardize the 2015 reporting period for the electronic health record (EHR) incentive program to 90 consecutive days.
The rules would also require only one patient in a physician's practice to use technology to download, view, and transmit his or her medical records. Currently, meaningful use requires 5 percent of patients in a practice to participate in the electronic exchange of their records.
TMA's advocacy efforts have focused on expanding adoption of health information technology among physicians while ensuring the exchange of secure and interoperable health information.
In a letter to Karen B. DeSalvo, MD, national coordinator for health information technology, Matt Murray, MD, asks the Office of the National Coordinator (ONC) to "carefully consider marketplace readiness during rulemaking."
"Physicians are feeling crushed by increasing regulatory demands, especially with the meaningful use requirements. Physicians are in a precarious position: We are required to comply with overly burdensome requirements that are simply not supported by current health technology," wrote Dr. Murray, chair of the TMA Ad Hoc Committee on Health Information Technology.
He tells ONC that electronic health records (EHRs) lack any safety components without usability, interoperability, and standardization.
TMA has a new tool to help physicians meet Stage 2 meaningful use criteria. The currently toolkit features two EHR vendors — e-MDs and NextGen. Each vendor provides detailed instructions and screenshots for each measure. Even if you don't use these vendors, you may find it helpful to see how other EHRs track the measures.
Physicians who began participation in the EHR incentive program in 2011 should have met three consecutive years of meaningful use under the Stage 1 criteria before advancing to the Stage 2 criteria in 2014. All other physicians must meet two years of meaningful use under the Stage 1 criteria before advancing to the Stage 2 criteria in their third year.
If you are still participating in Stage 1, be sure to reference the Stage 1 Toolkit, which includes information from five EHR vendors.
For questions about the incentive program and other health information technology needs, contact TMA's Department of Health Information Technology at (800) 880-5720 or by email.
Texas Medical Board (TMB) rules adopted last week send a message that technology is no substitute for physical patient exams. By voting to require physicians to conduct a face-to-face examination before making a diagnosis or prescribing drugs, TMB took a big step to protect patients who receive telemedicine services.
TMB has been examining the practice of telemedicine for years and is involved in a lawsuit with Dallas-based company Teladoc.
In a comment letter TMA sent to TMB on the proposed rules, the association states that it "supports the use of telemedicine that can provide safe, high-quality, timely care to patients, particularly in areas of the state that have critical physician shortages. However, TMA believes that Texas must maintain appropriate safeguards to protect patients and ensure telemedicine complements the efforts of local health care providers."
According to the rules, physicians can see a patient via telemedicine for the first time — without a prior in-person visit — if the patient is at a location that allows a physician to adequately examine and communicate with the patient in real time with the assistance of technology and a patient site presenter. The new telemedicine rules also permit mental health services to be provided at a patient's home, including residential treatment facilities, nursing homes, jails, detention centers, and assisted living centers, through real-time audio and video technology.
Despite claims to the contrary from critics, the changes do not and are not intended to interfere with traditional on-call coverage arrangements, based on the board’s discussion during its April 9 meeting.
Barring a court challenge and subject to any changes during the legislative session, the rules take effect June 3.