Fall 2016

Rural Texas Physician is a quarterly electronic newsletter catering to physicians in the many rural areas of Texas caring for patients and their communities. TMA’s grassroots membership is the strength of the association. For general inquiries or newsletter comments, email rural@texmed.org.

Feds Announce First-Year Break on MACRA Penalties; Finalize Rules

Responding to strong concerns from the Texas Medical Association and other physician organizations, a top federal official announced that physicians who at least try to comply with new Medicare payment rules next year will see no penalty in their 2019 payments. 

Under the Medicare Access and CHIP Reauthorization Act (MACRA) physicians’ 2017 performance on various quality, cost, technology use, and practice improvement measures will determine cuts or bonuses in their 2019 Medicare payments. 

"During 2017, eligible physicians and other clinicians will have multiple options for participation," Andy Slavitt, the acting director of the Centers for Medicare & Medicaid Services (CMS), said in an agency blog post. "Choosing one of these options would ensure you do not receive a negative payment adjustment in 2019." 

In response to TMA's request for clarification, CMS spokesperson Aisling McDonough tweeted, "As long as you submit something for 2017, then no penalty. If you submit nothing, then you do get a penalty." 

CMS published the final rule to implement MACRA on Oct. 14, and, at first blush, the 2,398-page document appears to include some significant improvements for physicians and patients. TMA suggested many of those improvements in the 50 recommendations we submitted to CMS in our formal comment letter on the draft rule. 

TMA staff experts will continue to analyze the final rule in-depth. Per their preliminary findings, the final rule includes:  

  • A small increase in the low-volume threshold, exempting any physician who sees fewer than 100 Medicare patients or submits Medicare charges of less than $30,000. (The draft rule set that amount at just $10,000.) CMS estimates that the low-volume threshold alone will exempt 28 percent of family practitioners and 25 percent of general surgeons.
  • A one-time, first year reduction in the composite performance threshold so that any physician who earns a score of 3 out of a possible 100 points will not receive any Medicare payment penalties. (Remember, data collected on 2017 performance will affect physicians’ 2019 payments.) Any physician who successfully reports one quality measure or one of the new improvement activities will earn 3 or more points, and thus be protected from the possibility of 4-percent cut in 2019. This is how CMS met the unofficial promise Mr. Slavitt made last month that physicians who at least try to comply with the rule next year will see no penalty in their 2019 payments. Because of this decision, CMS estimates that about 95 percent of eligible physicians will get a positive or neutral payment adjustment in 2019. This low standard applies only to the 2017 reporting year; the performance requirements will increase in 2018 and beyond.
  • A system that allows physicians and groups the flexibility to determine the most meaningful quality measures and reporting mechanisms for their practices and their patients. TMA asked CMS to “keep it simple.” In the interests of simplicity, we will just report here that they did.
  •  An option for physicians to report information on their use of health information technology for just 90 days in 2017. This is the old Meaningful Use program. The draft rule would have required a full calendar year reporting period beginning in 2017. Physicians can choose to report full-year metrics, and that will increase their chances of obtaining a larger bonus.

TMA will continue to work with CMS and the Texas congressional delegation to rewrite and reform many of the problems identified in the draft regulations. 

“I am pleased to see significant alterations and increased flexibility built in that reflect changes called for by the medical community,” U.S. Rep. Michael Burgess, MD (R-Lewisville), the primary House author of the MACRA legislation, said of the final rule. “In particular, it is evident that the regulation is responsive to the needs and concerns presented by small, independent, and rural practices. I appreciate that CMS and Administrator Slavitt have taken every possible step to maximize and incorporate the input from clinicians.”

TMA Can Help

Physician practices across the country will have a busy two and one-half months trying to get ready to begin collecting and reporting data on Jan. 1. Practices still face a host of decisions about what path they will take to try to comply with the biggest change in Medicare payment policies in more than a generation. TMA has developed a host of tools, education, and services to help:  

To stay abreast of everything MACRA, check in regularly at TMA's online MACRA Resource Center. For a review of all the association has done to affect MACRA policy, see "MACRA: Fix or Folly?" in September’s Texas Medicine.

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STAR Kids Takes Effect Nov. 1; Training Available

If you participate in Medicaid, don't forget about the implementation of the STAR Kids managed care program on Nov. 1. The legislature directed the Texas Health and Human Services Commission (HHSC) to develop the managed care program specifically designed for children aged 20 and younger who have disabilities.

According to the HHSC, participation in the STAR Kids program is required for those who are 20 or younger, covered by Medicaid, and meet at least one of these criteria: 

  • Receive Supplemental Security Income (SSI);
  • Receive SSI and Medicare;
  • Receive services through the Medically Dependent Children Program (MDCP) waiver;
  • Receive services through the Youth Empowerment Services (YES) waiver;
  • Live in a community-based intermediate care facility for individuals with an intellectual disability or related condition (ICF/IID) or nursing facility;
  • Receive services through a Medicaid Buy-In program;
  • Receive services through any of the Department of Aging and Disability Services (DADS) intellectual and developmental disability (IDD) waiver programs: Community Living Assistance and Support Services (CLASS); Deaf Blind with Multiple Disabilities (DBMD); Home and Community-based Services (HCS); or Texas Home Living (TxHmL). 

STAR Kids will provide acute care services, such as physician office visits, hospitalizations, and prescription drugs, as well as long-term care services and support. Those who enroll in the STAR Kids program will choose a health plan, as well as a primary care physician or clinic that will provide basic medical services and provide referrals to a specialist when needed, HHSC says.  

STAR Kids managed care organizations (MCOs) must offer contracts to any physician designated by HHSC as a significant traditional provider, a physician who cares for a substantial number of STAR Kids-eligible children. However, physicians may choose whether to contract, and if so, with which plans. For physicians who care for children across the state, MCOs may contract with them or enter into single-case agreements for particular patients.

HHSC will be conducting physician and family training sessions on the program. For training dates and locations, visit the website.

Physician Resources

STAR Kids Provider Frequently Asked Questions

STAR Kids Provider Frequently Asked Questions (PDF)

Provider Tips (PDF)

Provider Training – STAR Kids Provider Information Session (PDF) 

STAR Kids Billing Matrix and Crosswalk (XLS)

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TMA's Medicaid Recommendations Can Improve Care, Reduce Costs

As state lawmakers begin preparing for the 2017 legislative session, TMA and four state specialty societies delivered a detailed, five-page document with significant recommendations to improve the Texas Medicaid program. Among the suggestions submitted to the Senate Health and Human Services Committee: 

  • Enact creative solutions to increase health care coverage among low-income Texans;
  • Cut Medicaid managed care red tape, and pay physicians competitive Medicaid and Children's Health Insurance Program rates;
  • Promote better birth outcomes by enhancing women's access to preventive, primary, and behavioral health care;
  • Increase access to evidence-based community and crisis mental health and substance abuse services; and
  • Improve state efforts to provide women's preventive and primary care. 

The organizations' recommendations cite Texas' uninsured rate, with more than 5 million Texans lacking health insurance. "Among adults, the majority of the uninsured work, but either they cannot afford employer-sponsored insurance, or it isn't available. Purchasing private health insurance is prohibitively expensive for low-income families. But insuring more low-income Texans does not have to mean expanding traditional Medicaid. A half-dozen conservative states —  including Indiana and Michigan — have implemented innovative programs to privately insure more people mostly paid for with federal dollars," the testimony states. 

Rather than expanding traditional Medicaid, TMA, the Texas Pediatric Society, the Texas Academy of Family Physicians, the Texas Association of Obstetricians and Gynecologists, and the American Congress of Obstetricians and Gynecologists-District XI urge lawmakers to "develop a plan, tailored to Texas' unique circumstances, to cover more than 1 million uninsured individuals." They explain the plan would "provide low-wage, working Texans with private insurance that includes copays and personal responsibility."

The organizations' testimony also supports efforts to extend the 1115 Medicaid Transformation Waiver. "Even with broader health care coverage, the safety net system's ability to care for vulnerable Texans will be seriously imperiled if hospitals lose supplemental federal funding for uncompensated care. Moreover, the Delivery System Reform Incentive Payments funding designed to test new ways to deliver and pay for care is starting to show genuine improvements in health outcomes. The waiver renewal must ensure greater community-based physician involvement in waiver planning and evaluation," they wrote. 

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TMB Adopts Call Coverage Rules

At its Aug. 25 meeting, the Texas Medical Board (TMB) voted to adopt without change its recently proposed call coverage rules. The rules outline requirements for two models for call coverage: a reciprocal call coverage arrangement for physicians in the same or similar specialty and a nonreciprocal arrangement that does not require reciprocal call coverage. 

The reciprocal model closely resembles traditional call coverage arrangements and requires either a written or oral agreement that the covering physician is responsible for meeting the standard of care and providing to the requesting physician a report of the patient care provided. The nonreciprocal model is more prescriptive. A nonreciprocal agreement must be in writing and include terms that:  

  • Establish the covering physician's responsibility for meeting the standard of care; 
  • Provide a list of physicians who may provide call coverage;  
  • Establish the covering physician's ability to have access to medical records; and 
  • Require the covering physician to furnish a report to the requesting physician within certain times, depending on the circumstances of the care provided.

Previously, TMA weighed in strongly against the board's initially proposed call coverage rules, which one Dallas physician called "totally bizarre and dangerous." The proposed rules had stated that physicians who enter into call coverage agreements "are contractually obligated and mutually responsible for meeting the standard of care" for established patients and for sharing documentation of any call coverage provided. 

TMA asked the board to withdraw the proposed rules and start over. "Physicians are, and should be, responsible for their own acts, not for the acts of other physicians solely due to on-call arrangements," then-TMA President Tom Garcia, MD, wrote in TMA's formal letter to TMB. "Physicians are, and should be, responsible for exercising reasonable care in making on-call arrangements, but cannot and should not be held liable for the acts of another physician who accepts on-call responsibility, and vice-versa. On-call arrangements do not involve 'delegated' acts in which the physician is supervising another health care worker."

TMB withdrew the version of the rules requiring mutual responsibility in call coverage arrangements and subsequently proposed the now-adopted version that addressed physician concerns. The adopted rules state that the standard of care responsibility rests only with the covering physician.

For more information, read "The Future Calls" in the July issue of Texas Medicine 

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New Rules Say You Must Address Language Barriers

Oct. 16, 2016, brings a new requirement for a sign to post on your practice walls, as well as a plan for fulfilling its promise. TMA’s new white paper MembersOnlyRed has all the details about accommodating your patients with limited English proficiency (LEP).

New rules from the U.S. Department of Health and Human Services (HHS) lay out a compliance framework for physicians and health care providers regarding all types of discrimination, including discrimination against individuals with LEP. 

The framework, explained in detail in the new white paper from the TMA Office of General Counsel about accommodating people with limited English proficiency, includes factors to help you determine the reasonable steps you must take to provide these individuals meaningful access.

For example, what is the nature of your communication with patients who speak another language? How often do you encounter patients of a specific language? What resources are you realistically able to provide?  

In addition, you'll be required to: 

  • Post a notice of consumer rights providing information about communication assistance; and
  • Post taglines in the top 15 languages spoken by LEP individuals in Texas, indicating the availability of such assistance. The white paper lists these languages and a link to translations from HHS. 

The rules implement the nondiscrimination provision, Section 1557, of the Affordable Care Act, which prohibits discrimination against individuals on the basis of race, color, national origin (which includes limited English proficiency), sex (this includes discrimination on the basis of  gender identity), age, or disability.

Note that the new discrimination rules apply to any entity that has a health program or activity, any part of which receives federal financial assistance from HHS. HHS says most physicians will find themselves subject to Section 1557 and thus must comply with the requirements of the rules. You should consult with your legal counsel to determine the application of the rules to your particular situation.

If you have questions, contact the TMA Knowledge Center by phone at (800) 880-7955 or by email.

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TMA Convenes Expert Panel to Tackle Zika

TMA has formed a workgroup to strategize prevention and response to the Zika virus  and to give experts a forum to share what they're seeing in the field with regard to Zika and to discuss issues and concerns surrounding the disease.

The workgroup will help TMA provide relevant information to physicians about Zika. TMA drew physicians from its various boards, councils, and committees to form the group. David Lakey, MD, chief medical officer and associate vice chancellor for population health in The University of Texas System and former commissioner of the Texas Department of State Health Services (DSHS), is the workgroup's chair.

Group meetings have covered challenges with testing, reporting, and referral; emerging shortages at blood banks as a result of bans on donors who had traveled to Zika-infested areas; and potential TMA activities to help physicians and the public prevent and stop Zika. To stay up to date on Zika-related news, TMA, and the workgroup, encourage physicians to visit the DSHS Zika website, www.texaszika.org, and the state's Task Force on Infectious Disease Preparedness and Response site, txidr.org

Bites from the Aedes aegypti mosquito species are the primary transmission avenue for Zika virus. The disease also can be transmitted sexually. Zika poses a particular threat to fetuses, who can develop microcephaly and other birth defects if the fetus' mother becomes infected with the disease. Texas reported its first Zika-related death in August. DSHS confirmed an infant who died in Harris County had microcephaly linked to the Zika virus. The baby died shortly after birth, according to DSHS.

For a current Texas Zika case count, visit www.texaszika.org. For current national statistics, visit www.cdc.gov/zika

TMA and the Texas Association of Obstetricians and Gynecologists have prepared guidance for physicians on screening for and talking to patients about Zika.

Dr. Lakey, who is also the chair of TMA's Council on Science and Public Health, took part in a panel discussion on Zika at the TMA 2016 Fall Conference on Sept. 24. DSHS Commissioner John Hellerstedt, MD, and Catherine Eppes, MD, a member of TMA's Committee on Infectious Diseases, also served on the panel.

Dr. Hellerstedt told conference attendees the socioeconomic conditions in Texas "are vastly different from those in other countries where Zika has been prevalent." He added that regions of Brazil and Puerto Rico that have experienced outbreaks feature many people living close to one another in warm and humid conditions, with many sources of water, no air conditioning, no screens, and no mosquito repellent in use. Along those lines, Dr. Hellerstedt also noted dengue fever is much more prevalent across the border in Mexico than it is in Texas or the rest of the United States, where cases are rare.

For more information, read "Zika: Fighting a Potential Epidemic" in the August issue of Texas Medicine.

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TMA Backs Definition of Emergency in Obstetrical Case

Last month, TMA signed on to the Texas Alliance for Patient Access' (TAPA's) friend-of-the-court brief to support the application of the willful and wanton standard in a lawsuit involving emergency obstetrical care. TMA, TAPA, and other signatories contend emergency care provisions apply to medical care provided in an obstetrical unit without the pregnant patient first having been evaluated in a hospital's emergency department.

A Denton obstetrician-gynecologist's reaction to a 2011 shoulder dystocia birth in which the baby was born with neurologic dysfunction in his right arm rests at the heart of a negligence lawsuit now in the hands of the Second Court of Appeals in Fort Worth. The appeals court will look at whether shoulder dystocia elevates a delivery to emergency care according to the law, and if so, whether the parents of the child must establish gross negligence on the part of the physician.

A district court previously ruled in favor of the physician and his practice, which argue the plaintiffs must show the physician acted with willful and wanton negligence. The court's ultimate decision has implications for a number of physicians in emergency care situations, including emergency department physicians and practitioners in obstetrics units and surgical suites.

The brief says both traditional emergency rooms and obstetrical units serve as emergency departments for pregnant women. Requiring the patient to first receive care in a traditional emergency department for the statute to apply, TAPA wrote, "would create an absurd and illogical result" and make physicians face a "disparate application" of that law.

"Should doctors and health care providers be encouraged to waste precious time and resources arbitrarily routing pregnant patients through a traditional emergency department in order to receive the protection of the Statute, ignoring what is in the best interest of the patient's medical treatment? Certainly not!" the brief states. "The plain language and intent of the Statute is clear."

For more information about the case, read "The Right Standard?" in the October issue of Texas Medicine 

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TMA, AMA Oppose Bill That Would Threaten Patient Safety

TMA and the American Medical Association have serious concerns about proposed federal telemedicine legislation that would preempt state laws governing medical licensure, medical practice, and professional liability. The legislation would change the originating site of care from the patient's location to the physician's location, ostensibly to enable telemedicine across state lines for patients in the TRICARE program. TMA signed on to AMA's letter to Congress to object to the serious threat to important and demonstrated patient safety protections provided by adherence to licensure and medical practice laws in the state where the patient receives services.  

AMA and the Federation of State Medical Boards (FSMB) have been closely tracking the National Defense Authorization Act for Fiscal Year 2017 (S 2943), which passed the U.S. House and Senate and is now moving to a conference committee to reconcile the differences between the versions. TMA and AMA take issue specifically with the "Enhancement of Use of Telehealth Services in Military Health System, Location of Care" provision in the Senate bill that passed on June 14. This provision is not contained in the companion legislation that passed the House of Representatives on May 18.

AMA has communicated to the Senate Armed Services Committee, leadership, and individual Senate offices the strong physician opposition to the Location of Care provision. TMA supports AMA's efforts to have the provision removed.

The key points AMA and FSMB shared with Congress include:  

  • Both organizations strongly support adoption of telemedicine and have sought to develop and implement policies, rules, and mechanisms that would expand access to care via telemedicine in a safe and accountable manner. 
  • The practice of medicine occurs where the patient is located, rather than where the physician or provider is located. This approach is patient-centered, time-tested, and practice-proven. It ensures state medical boards have the legal capacity and practical capability to regulate physicians treating patients within the borders of their state and to attest that those physicians meet the qualifications necessary to safely practice medicine. Each state establishes its own licensing and medical practice standards, regulations, and laws that meet the needs of the patients receiving care within the state's borders. 
  • This Location of Care provision would compromise patient safety by making it exceedingly difficult and potentially impossible for patients and state medical boards where medical care is rendered to address improper or unprofessional care. The ability of patients, and other interested parties, to quickly and accurately identify and report concerns to the applicable state medical board of jurisdiction and actively support the medical board investigation will be hampered. Altering the applicable law to the state where the provider is located would place the burden solely on the patient to navigate through the complaint filing and investigatory process across one or more state lines. 
  • The Location of Care provision raises constitutional questions and would create an ambiguous medical regulatory structure, as it is unclear if the physician must adhere to the Medical Practice Acts (laws and standards) of his or her state of licensure or the state of the patient's location. The latter would embroil patients, state medical boards, and health care professionals in costly conflicts of litigation ancillary to the issue of whether appropriate medical care was provided. 
  • This Location of Care provision creates an inefficient and unworkable system where, in theory, each individual state board would be required to regulate medical practice across the nation, affecting 9.4 million TRICARE beneficiaries around the world. Yet, a state board's legal authority does not extend beyond the state; investigations and application of state medical practice laws stop at the border's edge. 
  • The current fee structure of the state board licensing and renewal system allows state boards to use their limited resources to fund investigations and subsequent prosecutions of physicians suspected of unprofessional medical conduct in the state where the medical care was rendered. This proposal would create a significant and unsustainable financial burden on the state board where the physician is licensed, forcing the board to conduct its disciplinary proceedings and use its limited resources, at a much greater cost, to be able to conduct investigations in other states. 

Telemedicine regulation in Texas has received a lot of attention from the medical community and the courts. Last April, telemedicine company Teladoc filed a federal antitrust lawsuit against the Texas Medical Board (TMB). One month later, U.S. District Judge Robert Pitman granted Teladoc's request for a temporary restraining order and preliminary injunction that blocks TMB's telemedicine rule, which prohibits prescription of dangerous drugs or controlled substances without a "defined physician-patient relationship." That includes a physical examination via face-to-face visit or in-person evaluation, as TMB defines those terms in the rules. The injunction will continue until Teladoc's federal antitrust lawsuit against TMB is resolved. 

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Register for the Texas Quality Summit

This fall, TMA is hosting a unique event designed to help you improve performance, increase efficiency, and continue to deliver high-quality care. Join your colleagues for the Texas Quality Summit Nov. 18–19, and get the latest resources and hands-on training to take your practice to the next level. Register now, as seating is available to a limited number of participants on a first-come, first-served basis.

The Texas Quality Summit, cohosted by the TMA Council on Health Care Quality and the American College of Medical Quality (ACMQ), begins with a powerful pre-conference workshop, ACMQ's Quality Improvement and Patient Safety Workshop, on Friday, Nov. 18. Next, attend the full-day summit on Saturday, Nov. 19, for in-depth presentations, physician panels, and case studies addressing quality strategies to enhance your practice. Programming will include an update on health population trends in Texas, transitioning to value-based care, alternative payment models, implementation of the Medicare Access and CHIP Reauthorization Act (MACRA), and more. 

The 2016 Texas Quality Summit will be held in Austin at the TMA building in the Thompson Auditorium. Discounted room rates are available to attendees at the DoubleTree, conveniently located across the street from the TMA building. Space is limited, so register online today, or visit the TMA website for more information. 

For more information about the summit, read "Learn From the Experts" in the October issue of Texas Medicine

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Dr. Read Publishes Two Op-Ed Columns

TMA President Don R. Read, MD, has been traveling throughout the state to inform physicians on important issues like MACRA and the Zika virus. Despite a packed schedule, he found time to publish two op-ed columns: 

  • "Does the government know what it’s doing to physicians?" in the KevinMD blog looks at the recent Texas-inspired research that found "physicians spend almost twice as much time each day typing on computers and filling out paperwork as they do seeing patients." The blame, he explained, "comes back to an alphabet soup of government regulations that definitely were written by someone who’s never been in the exam room with a patient."
  • In TMA's Me and My Doctor blog, Dr. Read published "Improve Naloxone Distribution to Curb Overdoses." On the one-year anniversary of a new law allowing physicians to write open prescriptions for overdose-reversal drugs like naloxone, Dr. Read prescribes the next steps for Texas to take in tackling the opioid abuse epidemic. 

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