Action: Aug. 15, 2017

TMA Action Aug. 15, 2017   News and Insights from Texas Medical Association

Medical Board Avoids Sunset During Special Session
TMA, Others Weigh in on End-of-Life Care Lawsuit
Texas Strikes Back at JAMA MOC Law Slap
Can Your Patients and Colleagues Find You?
Comment Period Open for Proposed Medicare Rules Changes
Congressional Initiative Seeks to Reduce Medicare Red Tape
Are You Receiving MIPS Credit for Your Quality Data on Claims?

Hardship Exception Applications for ACI Participation Available Now
Fighting Flu Starts With You
Win $5,000 for Your Champion of Health
Annual Award Recognizes Texas Preparedness Leaders
TMA Leaders to Gather at Fall Conference: Get in Before the Deadline
This Month in Texas Medicine

Medical Board Avoids Sunset During Special Session

The roller coaster that's been the Texas Legislature's 2017 summer special session roared full-speed into the station Friday, ending a wild ride for the Texas Medical Board (TMB) and worried Texas physicians.

Gov. Greg Abbott signed bills extending the life of TMB and the Medical Practice Act on Aug. 11, just hours after they reached his desk. Both would have vanished Sept. 1 without legislative action. The Texas Medical Association thanked the governor and lawmakers for "standing up for medicine and patient care."

Both the House and the Senate passed identical versions of the bills during the early days of the special session, but neither took any action on the other's bills for several weeks. The logjam broke Aug. 7, when the House State Affairs Committee approved Senate Bill 20 (which extends the life of TMB) and the House Appropriations Committee approved Senate Bill 60 (which provides funding for the agency). With no debate, discussion, or amendments, the full House of Representatives gave the bills speedy preliminary approval Aug. 10 and final approval Aug. 11. Governor Abbott signed them shortly thereafter.

"Thanks to the passage of this critical legislation, Texas will now be able to continue to license new doctors and regulate the practice of medicine," the governor said. "As the first order of business on my special session call, these bills were necessary in keeping important state agencies running and keeping Texans healthy."

TMA President Carlos J. Cardenas, MD, quickly released thank-you statements on the TMA website and in a video message.

"The Texas Medical Association thanks Gov. Greg Abbott for placing the Medical Practice Act and TMB sunset renewal on the legislative special session call," Dr. Cardenas said. "We also thank Texas lawmakers for answering that call and passing these laws overwhelmingly to ensure Texans can continue to receive the best patient care possible from their physicians."

The 85th Texas Legislature returned to Austin nearly a month ago for the special session. Starting with the TMB sunset bill, the governor identified 21 priorities for consideration — all reprised from the regular session that ended May 29.

Without legislative action, TMB would have begun a wind-down period beginning Sept. 1, and the Medical Practice Act would have ceased to exist on that date.

TMA launched a "Texas Health Care Doomsday Countdown Calendar" awareness campaign on Aug. 7 to spur legislators to take action and let the public know about the dire and shocking crisis ahead for our state had the legislature failed to pass a sunset continuation bill for TMB: 

  • Without licenses, doctors wouldn't have been able to prescribe medicine and order all needed tests, or practice in hospitals or other facilities that require a state medical license.
  • With no legal definition of what it takes to be a physician, anyone could have opened up shop and called himself or herself a doctor. The public would have been exposed to and unprotected from medical quackery.
  • Texas, which already has a physician shortage, could have lost some of its doctors to other states. 

"Thank you for standing up for medicine and patient care," Dr. Cardenas said after the bills became law.

TMA, Others Weigh in on End-of-Life Care Lawsuit

TMA has signed on to a friend-of-the-court brief opposing a constitutional challenge to part of the Texas Advance Directives Act. That law protects physicians from liability for not performing life-sustaining interventions if the doctor believes further intervention isn't medically appropriate for the patient.

TMA signed on to the brief in Kelly v. Methodist Hospital along with eight other organizations, including the Texas Catholic Conference of Bishops; the Texas Alliance for Patient Access, which filed the brief on July 31; the Texas Hospital Association; the Texas Osteopathic Medical Association; and the Texas Alliance for Life.

If a physician believes life-sustaining intervention would enhance or extend a patient's suffering, the law allows the doctor to take the patient's case to an ethics committee to evaluate the appropriateness of continuing that intervention. The law gives the physician immunity from liability if he or she ultimately stops the life-sustaining treatment based on the ethics committee decision.

The suit against Houston Methodist Hospital is challenging that part of the law, saying it violates a patient's right to due process and "allows doctors and hospitals the absolute authority and unfettered discretion" to stop life-sustaining care, even if there's an advance directive or a patient or patient's surrogate decides otherwise.

The case concerns the death of David Christopher Dunn, who was admitted to Methodist in October 2015 in what the admitting physician said was "progressively terminal" condition, according to a filing by the hospital. About a month later, Mr. Dunn's attending physicians and patient care team decided life-sustaining treatment was medically inappropriate and recommended to his parents that it be withdrawn in favor of a palliative or comfort care-only approach. The hospital's ethics committee reviewed Mr. Dunn's case and agreed with the physicians and care team. Mr. Dunn's father also agreed with the recommendation, Methodist says in the court filing, but his mother did not.

Attorneys representing the patient initiated a court battle to continue the treatment, during which Methodist "voluntarily agreed to preserve the status quo by continuing all life-sustaining treatment," the hospital's filing said. Methodist's filing also said it is undisputed that the life-sustaining treatment continued until Mr. Dunn's death on Dec. 23, 2015.

Mr. Dunn's mother, Evelyn Kelly, is the plaintiff in the suit, which claims that Methodist "prematurely applied the procedures" in the law. The suit says Mr. Dunn's death "should not absolve or otherwise excuse the violation of his constitutional rights."

In the friend-of-the-court brief, TMA and the other organizations say the law at issue "exists to spur doctors and patients to have the difficult, but critical, dialogue that end-of-life care requires." The brief argues the law section at issue — Section 166.046 of the Texas Health and Safety Code — is constitutional. While the question of due process involves "whether the state has arbitrarily deprived the plaintiff of a constitutionally protected interest," the brief argues, neither the Texas nor U.S. constitutions protect against "purely private harms." A treatment decision by a private physician does not constitute state action, the brief says.

Section 166.046 is "an enactment designed to resolve otherwise-intractable end-of-life disputes. In almost every case — including this one — it does so without violating patient wishes," the brief says. "If reform is necessary, it should take place in a legislative venue."

The case is pending in Harris County district court.

Texas Strikes Back at JAMA MOC Law Slap

Just because Texas has a new law to protect physicians against mandatory maintenance of certification (MOC) tyranny doesn't mean the battle is over. This is a nationwide contest now between the specialty certifying boards and the physicians they certify. In the newly enacted Texas law, the boards see a trend they don't like — and that they want to stop.

In a commentary that the Journal of the American Medical Association (JAMA) published online Aug. 7, former chair of the American Board of Internal Medicine Board of Directors called Senate Bill 1148 a "threat to professional self-regulation" by physicians. Dallas internist David H. Johnson, MD, went on to write that the bill "weakens [physicians'] claim to self-regulation by establishing a precedent for additional governmental intervention into the practice of medicine."

TMA, which lobbied hard for the bill's passage during the regular session of the 2017 Texas Legislature, wasted no time in responding. In a letter to the editor submitted to JAMA but not yet published, TMA President Carlos J. Cardenas, MD, agrees on the importance of self-regulation to his profession.

"It encompasses our responsibility and our authority to establish and enforce standards of education, training, and practice," Dr. Cardenas wrote. "We routinely defend that responsibility and authority in advocating against the intrusion of all third parties — such as government, private insurers, hospital administrators — into the practice of medicine."

But physicians in Texas and across the country, he argued, do not see the certifying boards as "self."

"They are, instead, profit-driven organizations beholden to their own financial interests," Dr. Cardenas wrote. "In fact, they are now one of the outsiders intruding into the practice of medicine."

Until the boards "completely overhaul their processes, finances, and lack of transparency," he concluded, physicians "will have no choice but to continue to seek statutory defenses against these third-party intrusions into our noble profession."

State Sen. Dawn Buckingham, MD (R-Lakeway), the author of SB 1148, also submitted a response letter to JAMA

"We have received gratitude from thousands of physicians across the country for passing SB 1148," Dr. Buckingham wrote. "The cry of the rank and file has been heard in many states as similar legislation is being considered. One might wonder if the boards can continue to ignore this cry for reform."

Can Your Patients and Colleagues Find You?

I'll give you one guess as to what is the most frequently visited page on the TMA website.

I'll wait.

If you said an Action article from 2013 on ICD-10 being one year away, that's just wrong.

But if you said the Find a Physician directory, you'd be correct! (There could be a prize … if you go there and fix any incorrect information about you. Read on.)

So, clearly, a lot of people are trying to find a physician. But when prospective patients and referring colleagues visit the directory or TMA's HIPAA-secure DocbookMD mobile app — will they be able to find you?

Don't lose out. Take a few moments to update your online membership profile and make any corrections. Be sure to confirm your contact information (including email and group practice name) located under the Address and Practice tabs.

While you're at it, click on the Interests tab to tell us exactly which professional topics matter most to you and your practice. 

Visit the website and log in to your profile today. 

Action TMLT Ad 10.15

Comment Period Open for Proposed Medicare Rules Changes

If you have a lot of time on your hands, and you want to spend that time looking over proposed rules that will affect physicians who treat Medicare patients, have I got good news for you.

The comment period is open for two proposed changes to Medicare programs: an update to the Quality Payment Program (QPP) and revisions to payment policies under the proposed fee schedule (PFS). 

So if you want to have your say on either of these issues, now is the time.


All you have to do is click on the links above to review the proposals and submit a comment. But clicking those links is probably going to be the quickest part of the process. There's a lot to these rules: multiple pages for each one, in fact.

Thankfully, these summaries are available: 

  • QPP update: This proposal addresses elements of the Medicare Access and CHIP Reauthorization Act (MACRA) that were not included in the first year of the program. They include virtual groups, facility-based measurement, and improvement scoring. It also includes proposals to implement elements of MACRA that do not take effect in the first or second year of the QPP.
  • PFS revisions: This proposal establishes relative value units and other Medicare Part B payment policies to update payment systems to reflect changes in medical practice and the relative value of services. Other proposed changes include potentially misvalued codes, telehealth services, and the Medicare electronic health record incentive program. 

Comments for the QPP updates are due by Aug. 21, and by Sept. 11 for the revisions to the proposed fee schedule.

Now, if you don't have time to read through all of these rules, I've got even better news than before: TMA is studying both rules and will send written comments on changes that are unnecessarily burdensome, where the compliance cost would exceed any possible benefit, or where patient care access or quality would suffer.

Because that's what we do: We work for you.

If you want to share copies of your comments with TMA, email them to Donna Kinney, TMA's director of research and data analysis.

Congressional Initiative Seeks to Reduce Medicare Red Tape

Think fast: How would you like to help a leading Texas congressman and other federal lawmakers reduce the Medicare program's burdens on physicians?

If the answer is yes, let me tell you about the "Medicare Red Tape Relief Project," which was announced last month by leaders of the U.S. House of Representatives' Ways and Means Committee.

The initiative seeks to "deliver relief from the regulations and mandates that impede innovation, drive up costs, and ultimately stand in the way of delivering better care for Medicare beneficiaries," according to a press release.

The initiative, announced by Ways and Means Committee Chair Kevin Brady (R-Texas) and Health Subcommittee Chair Pat Tiberi (R-Ohio), will work in three stages: 

  1. Receive comments and feedback from stakeholders;
  2. Host roundtables with stakeholders; and
  3. Take congressional action. 

Follow this link if you wish to tell Congressman Brady's committee what drives you crazy about Medicare rules and regulations. But do so quickly; the deadline to submit is Aug. 25. We'd really like to see copies of any comments you do submit. Feel free to email copies to Donna Kinney, TMA's director of research and data analysis, at donna.kinney[at]texmed[dot]org.

Meanwhile, TMA will send the Red Tape Relief Project a list of reforms that will help reduce costs, improve patient access to physician services, and make physician office operations more efficient. They will include: 

  • Allowing physicians to decide whether its best for their practice to use an electronic health record;
  • Removing the prohibition on physician ownership of hospitals;
  • Reducing Clinical Laboratory Improvement Amendments (CLIA) and Occupational Safety and Health Administration (OSHA) requirements on medical offices;
  • Providing antitrust relief for physicians;
  • Allowing Medicare patients an out-of-network option; and
  • Allowing no new rules or reporting requirements on physician practices unless they have reliable evidence that the expected benefits exceed the administrative costs.

Are You Receiving MIPS Credit for Your Quality Data on Claims?

Pull up a chair and kick up your feet because I've got a story about quality reporting via claims for you.

TMA recently received a call from a physician who — get this — was not receiving credit for the quality-data codes (QDCs) that her electronic health record (EHR) vendor was submitting through claims.

She had been reporting QDCs via claims for her quality measures for months, but her EHR vendor had not been adding the 1-cent line-item charge that ensures the QDC line isn't dropped when the claim is processed. 

TMA has confirmed with the Centers for Medicare & Medicaid Services (CMS) that the 1-cent charge is still required for quality reporting via claims now that the Physician Quality Reporting System (PQRS) is part of the Quality Payment Program (QPP). The requirement applies to EHR vendors who offer claims submission services and to all physician practices who submit quality data through Medicare Part B claims. 

TMA continues to press CMS for official guidance on all of the Merit-Based Incentive Payment System (MIPS) claims-based coding and reporting principles. Until that happens, TMA recommends physicians refer to this CMS guide for details. Most of the process is similar to what it was for PQRS, but physicians now must refer to the CMS quality measure specifications ZIP file to find the most up-to-date codes for the 2017 MIPS performance year. 

So if you participate in the QPP, here are some steps to help make sure your quality data codes are accepted:  

  1. Look for denial code N620 on your Medicare remittance advice statements. This code indicates your codes were transmitted to CMS claims history files. It does not confirm whether the measures were clinically appropriate. This is why reviewing the measure specifications before submission is vitally important.  
  2. Consult your EHR vendor, billing staff, or billing vendor to make sure you're getting credit for your quality reporting. Review the steps with them and ask about the 1-cent line-item charge so you don't lose credit and get a penalty. If the code is not showing up, your software could be dropping the line item from the claim before submission, it might not be programmed to recognize the measure code, or it might be trying to drop the line item to a separate claim file. The line item for the measure MUST be on the same claim form with the services provided on the date of service.  

For more information about quality reporting, contact the QPP Service Center by phone at (866) 288-8232 or by email, or visit the TMA MACRA Resource Center.

 TMAIT Action Ad 6.15

Hardship Exception Applications for ACI Participation Available Now

Sometimes, things happen that are out of your control.

You never know when you'll experience what the government calls "insufficient internet connectivity." (Really, they do call it that.) Or you wake up one morning to find you lack control over the availability of certified electronic health record technology (CEHRT). Sometimes, the only explanation is extreme or uncontrollable circumstances.

Well, if you're eligible for the Merit-Based Incentive Payment System (MIPS), and any or all of the above-mentioned hardships are preventing you from meeting the requirements of the Advancing Care Information (ACI) performance category, you might be eligible for a 2017 hardship exception.

How about that?

The Centers for Medicare & Medicaid Services (that's the CMS if you like to be efficient) recently posted a 2017 Hardship Exception Application on the Quality Payment Program website. If you qualify, your ACI category will be reweighted to 0 percent of your final MIPS score. That means it won't count toward your score.

Want to know if you're automatically MIPS-exempt? (You might be.) Click here.

And if none of this makes any sense, here are the ABCs of ACI: Remember the Medicare electronic health record (EHR) incentive program known as meaningful use? Well, ACI replaces that. ACI makes up 25 percent of your MIPS performance measurement and requires that you use a certified — let me repeat, certified — EHR. If you still need more information, TMA's ACI webpage has a ton of resources.

But the hardship exceptions don't just stop at ACI. 

First-time participants in the Medicare meaningful use program in 2017 could be eligible for a one-time hardship exception

You may apply for this hardship to avoid a 2018 payment adjustment (government speak for "Medicare penalty") if: 

  • You are participating in the meaningful use program for the first time in 2017 and will attest to 2017 performance before the Feb. 28, 2018, deadline, and
  • You are transitioning to the QPP MIPS for the 2017 performance period, and 
  • You are planning to report on the measures specified for the ACI performance category under MIPS in 2017.  

If this sounds like you, you might want to apply for that exception soon: Applications are due by Oct. 1.

If you have questions about MIPS or the meaningful use program, e-mail TMA's HIT Helpline or call (800) 880-5720.

Fighting Flu Starts With You

As you already know, providing flu shots is one of the best and easiest ways to keep people from getting sick.

But what happens if you get sick?

Here's a suggestion: Start with a dose of you own medicine and get a flu shot. Once you've done that (you're not afraid of needles, are you?), you can help keep the entire community healthy through vaccinations.

And if you need help setting up a flu shot clinic, turn to the TMA Be Wise — ImmunizeSM  program, particularly in October.

Why in October? Because Oct. 1 is Influenza Awareness Day, which the Texas Legislature created in 2013 to raise awareness of the health risks associated with the flu. TMA needs your help to reach our goal of 12 shot clinics around the state in October. 

Be Wise — Immunize has tools you can use during the fast-approaching influenza season:  

  • Provide flu facts at a glance with TMA's flu infographic (in English and Spanish). Post a copy in your waiting room, download it to your website or Facebook page, or hand out copies. 
  • Share more in-depth information about the importance of an annual flu vaccination with TMA's flu fact sheet (in English and Spanish).  
  • Remind your employees about the importance of getting their flu vaccination with this poster to hang in your break room or other areas where your staff gather. 
  • Use TMA's educational and giveaway items at your Be Wise — Immunize flu shot clinic in October.  

To order flu materials or to learn about hosting a shot clinic, contact Tammy Wishard, TMA's outreach coordinator, at (800) 880-1300, ext. 1470, or (512) 370-1470.

Be Wise — Immunize is a joint initiative led by TMA physicians and the TMA Alliance, funded in 2017 by the TMA Foundation through generous grants from H-E-B and TMF Health Quality Institute, and gifts from physicians and their families.

Be Wise — Immunize is a service mark of the Texas Medical Association. 

Win $5,000 for Your Champion of Health

We're incredibly fortunate that it's not just physicians who care about the health of Texans. Look around. All across this great state, school districts, volunteers, elected officials, and just plain regular people have created programs that promote healthy lives and healthy communities.

How do we know?

Well, since 1995, the TMA Foundation (TMAF) has recognized local and statewide programs with the John P. McGovern Champion of Health Award, which focuses on exceptional initiatives in Texas that address urgent threats to the public's health and those that further TMAF's mission "to help physicians create a healthier future for all Texans."

I’m sure if you thought about it, you could come up with two or three programs in your community that are doing great work. Why not nominate one or all of them for the 2018 award?

If the program is selected, a number of things will happen: The top winner will receive a $5,000 grant, the second-place winner will receive $2,500, the community will continue to use those services, and you'll feel great knowing that you've helped further support healthy living in Texas. That's a win-win-win-win!

The award recognizes programs for their innovative and effective ways of reaching Texans. It is named after John P. McGovern, MD, a physician, philanthropist, and humanitarian who founded the John P. McGovern Foundation in Houston. Dr. McGovern established a permanent endowment at TMAF that supports this award. 

Deadline for entries is Nov. 15. Winners will be notified in December, and presentation of the award is set for Jan. 27 at the TMA 2018 Winter Conference in Austin. Learn more and make a nomination online, or contact TMAF at (800) 880-1300, ext. 1664, or (512) 370-1664 for more information.

  PC Action Ad Sept 13

Annual Award Recognizes Texas Preparedness Leaders

Well, it's that time of the year again: time to nominate a person or organization for the Department of State Health Services (DSHS) Texas Preparedness Leadership Award.

DSHS' Health Emergency Preparedness Response Section gives the award each year "in recognition of exceptionally meritorious achievements in local, regional, state, or federal public health and health care system programs and initiatives, or for meritorious service in a disaster or public health emergency," DSHS said in a statement.

Eligible nominees can serve at any level, they may be in the public or private sector, and their accomplishments must include activities from Sept. 1, 2016, to Sept. 1, 2017. The deadline to submit nominations is noon, Sept. 8.

Previous winners have included the Waco-McLennan County Public Health District's Public Health Emergency Preparedness Division in 2014 for its work in response to the West fertilizer plant explosion in 2013.

To nominate an individual or organization, send a completed nomination form to BrendaM.Hernandez[at]dshs[dot]texas[dot]gov

TMA Leaders to Gather at Fall Conference: Get in Before the Deadline

Look, I know we're all busy. Some of us have patients to care for, others of us have classes to teach, and some of us have newsletters to write. (Some of you do all three — impressive.)

But, hey, take a few minutes to register for the TMA Fall Conference, which is scheduled for Sept. 15–16 (that's next month) at the Hyatt Regency Lost Pines Resort and Spa just 15 minutes east of Austin.

You might want to move quickly because some deadlines are approaching:  

The TMA Fall Conference is a unique leadership event that combines the business of TMA and its councils and committees with the latest news on health care in Texas. TMA leaders will hold meetings throughout the two-day event to address a range of issues on behalf of TMA members. 

The General Session this year will feature a detailed recap of the 85th Texas legislative session, including the new maintenance of certification (MOC) law and its future impact on physicians. The morning "Dawn Duster" program on Texas' new telemedicine law will focus on the opportunities and challenges in digital health. 

Questions? You know you've got 'em. And you know how to get 'em answered: Email the TMA Knowledge Center, or call (800) 880-7955 between 8:15 am and 5:15 pm CT Monday through Friday.

OK, go ahead and get back to work.

This Month in Texas Medicine

The August issue of Texas Medicine takes a comprehensive look at how medicine fared during the regular session of the Texas Legislature. For nearly five months, TMA pushed hard to advance the interests of Texas physicians and the state's health care landscape, succeeding on several important fronts. Medicine's victories in the regular session included opening up surprise billing mediation to more patients; a groundbreaking new definition of telemedicine; a statewide ban on texting and driving; and a prohibition on discrimination against physicians based on maintenance of certification. The magazine also looks at how the success of organ donation has created a seemingly never-ending discrepancy between demand and supply.

Check out our digital edition

Texas Medicine RSS Feed

Don't want to wait for Texas Medicine to land in your mailbox? You can access it as an RSS feed, the same way you get the TMA Practice E-Tips RSS feed. 

E-Tips RSS Feed

TMA Practice E-Tips, a valuable source of hands-on, use-it-now advice on coding, billing, payment, HIPAA compliance, office policies and procedures, and practice marketing, is available as an RSS feed on the TMA website. Once there, you can download an RSS reader, such as Feedreader, Sharpreader, Sage, or NetNewsWire Lite. You also can subscribe to the RSS feeds for TMA news releases and for Blogged Arteries, the feed for Action.  

This Just In ...

Want the latest and hottest news from TMA in a hurry? Then log on to Blogged Arteries.

Deadlines for Doctors

TMA's Deadlines for Doctors alerts you and your staff to upcoming state and federal compliance timelines and offers information on key health policy issues that impact your practice. 

CMS Quality Payment Program Deadlines  

Last Day of the Final Determination Period for 2017 Advanced Alternative Payment Models

Last 90-Day Period for the 2017 MIPS Performance Year

Last Day of the 2017 MIPS Performance Year

TMA Education Center

The TMA Education Center offers convenient, one-stop access to the continuing medical education Texas physicians need. TMA's practice management, cancer, and physician health courses are now easier than ever to find online.  

On-Demand Webinars

Innovation in Education for Cardiovascular Risk Patients: Heart Healthy Diet and Lifestyle

Making Discussions About Death and Dying Easier

HIPAA Training for Medical Office Staff

About Action       

 Action, the TMA newsletter, is emailed twice a month to bring you timely news and information that affects your practice

To change the email address where you receive Action, go to Member Log-In on the TMA website, then click on "Update Your TMA Demographic Information (including newsletter subscriptions and preferences)."

To unsubscribe from Action, email TMA's Communication Division at tmainfo[at]texmed[dot]org.

If you have any technical difficulties in reading or receiving this message, please notify our managing editor, Shari Henson. Please send any other comments or suggestions you may have about the newsletter to the Action editor.

Last Updated On

August 15, 2017