Rural Texas Physician

Winter 2017

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.

The 85th Texas Legislature Is Coming to Town

Veteran and rookie lawmakers, hundreds of lobbyists, and thousands of private citizens will descend onto Austin beginning Jan. 10 for the start of the 2017 Texas legislative session. Medicine will be well represented.

As always, the TMA professional staff will complement the relationships that physician leaders have built with their senators and representatives as they work to promote TMA's 2017 agenda. Tops on the list are the state budget, insurance reform, scope of practice, telemedicine, the Texas Medical Board, and public health priorities. Specifically, TMA will be fighting for:

  • Improved Medicaid payments, fewer administrative hassles, and better coverage for low-income Texans;
  • Preserving physicians' right to bill for their services and reducing the likelihood that patients will receive surprise bills;
  • Better funding for the Texas Medical Board (TMB), and improvements to TMB's physician disciplinary processes; and
  • Support for "Telemedicine Done Right."  

For more details on TMA's legislative agenda, see "Building on Success" in the January issue of Texas Medicine.

When the legislature convenes Jan. 10, Lt. Gov. Dan Patrick will begin his second session as presiding officer in the Senate, and Rep. Joe Straus (R-San Antonio) is expected to be reelected to his fifth term as speaker of the House.

Seven physicians, all TMA members, will serve in the 85th Texas Legislature: 

  • Sen.-Elect Dawn Buckingham, MD (R-Lakeway),
  • Sen. Donna Campbell, MD (R-New Braunfels),
  • Sen. Charles Schwertner, MD (R-Georgetown),
  • Rep. Greg Bonnen, MD (R-Friendswood),
  • Rep.-Elect Tom Oliverson, MD (R-Houston),
  • Rep. J.D. Sheffield, DO (R-Gatesville), and
  • Rep. John Zerwas, MD (R-Simonton). 

Senator Schwertner, an orthopedic surgeon, will chair the Senate Health and Human Services Committee. Sen. Jane Nelson (R-Flower Mound), another longtime friend of medicine, will chair the budget-writing Senate Finance Committee. House committee members and chairs will be appointed later this month.

TMA member physicians and medical students, and TMA Alliance members play a significant role in advancing medicine's priorities at the Capitol. Here are five ways you can help: 

  1. Come to First Tuesdays at the Capitol,
  2. Subscribe to the TMA Legislative News Hotline,
  3. Lobby your legislators,
  4. Testify before a House or Senate committee, and
  5. Learn more about TEXPAC

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Paxton: DOs Are Physicians

Texas Attorney General Ken Paxton flatly rejected a Houston probate judge's assertion that Texas law did not allow doctors of osteopathy (DOs) to file certificates of medical examination needed for mental health commitments.

"Refusing to accept a certificate of examination for mental illness from a physician solely on the basis that the physician holds a degree designation of doctor of osteopathy rather than a degree of medicine appears to constitute the type of discrimination that the Legislature specifically sought to avoid," General Paxton wrote in an official opinion. "We find no authority to reject a certificate of medical examination for mental illness solely on the degree designation distinction."

The issue landed in the attorney general's lap late last year at the request of State Senate Health and Human Services Committee Chair Charles Schwertner, MD (R-Georgetown). Senator Schwertner was outraged at Probate Judge Rory Olsen's decision.

"As a physician, I find Judge Olsen's attempt to singlehandedly redefine the practice of medicine both reckless and profoundly misguided," he wrote in a letter asking General Paxton to affirm that MDs and DOs enjoy the same legal rights.

At that point, Judge Olsen announced he would accept commitment requests signed by DOs, pending the decision from General Paxton. 

Before Senator Schwertner's intervention, TMA, the Harris County Medical Society, the Texas Osteopathic Medical Association, the Federation of Texas Psychiatry, and the American Osteopathic Association had all written to Judge Olsen explaining the legal equivalence in Texas of allopathic and osteopathic physicians. "Eliminating DOs' authority in the most populous county in Texas could have disastrous consequences for the health and safety of persons who physicians have determined need protective psychiatric care," they wrote. 

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Our Biggest CME Sale: 20 Percent Off in January 

Don't miss out on TMA's biggest, once-a-year continuing medical education (CME) sale. For the entire month of January, TMA is offering members 20 percent off all CME courses (excluding live programming). This means an additional 20 percent off the already discounted TMA member pricing.

Choose from more than 100 on-sale courses, including popular programs covering ethics, risk management, compliance, and practice operations. The discount applies to online and print publications, on-demand webinars, and podcasts.

Start your New Year with the lowest prices on TMA's hottest 2016 CME programs, including MACRA and Medicare: Get Clarity and Direction! (recorded on Nov. 30) and the revised Policies and Procedures: A Guide for Medical Practices, updated in October.

Visit the TMA Education Center and enter coupon code NEWYEAR20 at checkout to start saving. 

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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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 Vendor Drug Program Adds In-Demand Eye Drop Products to Formulary

TMA and the Texas Ophthalmological Association asked the Texas Health and Human Services Commission to take action to improve availability within the Medicaid Vendor Drug Program (VDP) of atropine 1% eye drops, which were in short supply at some Texas pharmacies. In response, in October 2016, the VDP added some atropine 1% eye drop products to the formulary.

Visit the VDP website to access information on formulary products containing atropine. 

Physicians who continue to experience problems obtaining atropine 1% eye drops can email helen.davis@texmed.org. In your email, provide the National Drug Code for the specific product that is unavailable. 

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TMB-Teladoc Lawsuit on Hold 

The Texas Medical Board (TMB) and Teladoc are in "negotiations," as both have filed motions to put Teladoc v. TMB on hold until April 19, 2017. The previous trial date was set for February. 

According to Law 360, "the move comes about two weeks after the Texas Medical Board voluntarily dismissed its appeal asking the Fifth Circuit to bar Teladoc Inc.'s antitrust challenge of the state rule requiring a face-to-face visit. U.S. District Judge Robert Pitman lifted the stay in the case on Oct. 25 and ordered the parties to submit a revised scheduling order by Nov. 8. But Teladoc and the medical board asked the court to reconsider." The court granted the stay on Nov. 4.

The Nov. 2 report of the Texas Sunset Commission on TMB does not address in any way the antitrust TMB exposure Teladoc asserted in the lawsuit. It also does not mention the Federal Trade Commission's staff position that state licensing bodies that have a majority of the licensees it regulates in control of the board are not protected from federal antitrust actions. For more information about Teladoc's antitrust claims against TMB, read "Seeking Invalidation" in the April issue of Texas Medicine.

Other states are attempting to address the antitrust issue, and some have passed remedial legislation to bolster their state action exemption argument to protect their licensure boards. The Texas Legislature may do the same next year. In addition to TMB, all of the state's professional licensing agencies are up for sunset review in the 2017 legislative session.

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Don't Miss First Tuesdays at the Capitol in 2017 

 Your patients and your profession need you to be a lobbyist for a day. Mark your calendar now to join the Party of Medicine in Austin for First Tuesdays at the Capitol during the 85th Texas Legislature on Feb. 7, March 7, April 4, and/or May 2, 2017. The March 7 event is designated the official TMA Alliance First Tuesdays, as well the young and newly licensed physician event. The April 4 event is dedicated to medical students and residents. Registration is now open.

TMA’s comprehensive 2017 legislative agenda advocates what’s best for patients and their physicians, from preserving physicians’ right to bill for services to improving Medicaid payment rates and reducing red tape and hassles.

For more information or to register, visit the TMA website, or call (800) 880-1300, ext. 1363. 

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Court Sides With TMA in Final Ruling on Chiropractic Scope of Practice Lawsuit

We won! In a final judgment by Travis County District Court Judge Rhonda Hurley, TMA prevailed in its long-held declaration that the Texas Board of Chiropractic Examiners' (TBCE's) rules permitting chiropractors to make medical diagnoses and perform other medical procedures exceed the chiropractic scope of practice. 

By voiding the rules, Texas chiropractors can't perform vestibular-ocular-nystagmus (VON) testing. The court also specified that the definitions of "musculoskeletal system" to include "nerves," "subluxation complex" as a "neuromusculoskeletal condition," and use of the term "diagnosis" by TBCE in its rules all exceed the scope of practice as defined by the Texas Occupations Code.  

TMA has always maintained that expanding chiropractors' or any other practitioner group's scope of practice requires legislative action to amend state laws governing licensees in Texas. It is not something the regulatory boards can do on their own.

TMA and the chiropractic board have a history of litigation. TMA prevailed in its lawsuit over TBCE rules that allowed VON testing by chiropractors. TMA sued the board in early 2011 and emphasized to the court that allowing some chiropractors to perform VON testing puts Texans' health in danger and that the diagnostic test is outside chiropractors' scope because "the eyes and ears are not part of the spine or musculoskeletal system of the human body."

The trial court sided with TMA, but TBCE appealed the decision. TMA asked the Third Court of Appeals to uphold the trial court ruling, saying in part that:  

  • The vestibular system isn't part of the spine or musculoskeletal system;
  • The vestibular testing rules unlawfully authorize chiropractors to practice medicine; and
  • The Chiropractic Act doesn't authorize chiropractors to make a "differential diagnosis" of a patient's medical condition. 

In a previous case challenging TBCE's rules on needle electromyography and spinal manipulation under anesthesia, the Court of Appeals held that there were unresolved fact issues that required the court to reverse the trial court's judgment. The case was remanded to the trial court for a full trial on the merits and as before, TMA prevailed.

Learn more about TMA's scope of practice efforts.  

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What Happened to 2017's Half-Percent Medicare Fee Hike?  

Zero. That's how much physicians' overall Medicare fees will go up next year, according to the Centers for Medicare & Medicaid Services' (CMS') complex rule on the 2017 proposed Medicare Physician Fee Schedule.

What happened, the Harris County Medical Society's Board on Socioeconomics wants to know, to the 0.5-percent Medicare payment increase physicians were supposed to see thanks to the passage of the bill last year that eliminated Medicare's Sustainable Growth Rate (SGR) formula?

Well, as they say, "it's complicated."

The Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), which erased the SGR, did indeed include what CMS calls a 0.5-percent "positive update" for physicians every year from 2016 through 2018. Physicians, however, didn't see a positive update this year for the same reason they probably won't get one in 2017, and may not get one in 2018, explains Donna Kinney, TMA's director of research and data analysis.

The disappearing updates all stem from another piece of federal legislation passed in 2014 that requires CMS to set an annual target for reduced Medicare spending on physicians' services "resulting from adjustments to relative values of misvalued codes." That target for 2017 is a 0.5-percent reduction. (Depending on the specific services they provide and which codes they use, individual physicians will see larger or smaller changes in their payments, Ms. Kinney emphasizes.) The bottom line is, however, the adjustment for the "misvalued codes" exactly counteracts the 0.5-percent increase coming from MACRA.

"The recent history of and future plans for inadequate fee updates, paired with the growing Medicare administrative burden, is making Medicare participation and compliance increasing difficult and costly for practicing physicians, and will impair access to care for Medicare beneficiaries," John Carlo, MD, of Dallas, chair of TMA's Council on Socioeconomics, wrote in the association's formal comment letter to CMS on the 2017 proposed Medicare Physician Fee Schedule. "Increases in administrative complexity are making Medicare participation an increasingly unattractive proposition to the smaller sized practices common in Texas."

By the way, that 2014 bill — the Protecting Access to Medicare Act of 2014 — wasn't all bad news for physicians, Ms. Kinney says. The most important provision of that bill canceled a 23.7-percent, across-the-board cut in physicians' Medicare payments that had been required due to the SGR.

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CDC Recommends Only Two HPV Shots for Younger Adolescents 

The Centers for Disease Control and Prevention (CDC) recommends 11- to 12-year-olds receive two doses of human papillomavirus (HPV) vaccine at least six months apart rather than the previously recommended three doses to protect against cancers caused by HPV infections. Teens and young adults who start the series later, at ages 15 through 26 years, will continue to need three doses, CDC says.

"Safe, effective, and long-lasting protection against HPV cancers with two visits instead of three means more Americans will be protected from cancer," said CDC Director Tom Frieden, MD. "This recommendation will make it simpler for parents to get their children protected in time."

Based on a review of the medical literature, the Advisory Committee on Immunization Practices (ACIP) voted to recommend a two-dose HPV vaccine schedule for young adolescents. CDC and ACIP reviewed data from clinical trials showing two doses of HPV vaccine in younger adolescents (aged 9 to 14 years) produced an immune response similar to or higher than the response in young adults (aged 16 to 26 years) who received three doses.

Generally, preteens receive HPV vaccine at the same time as whooping cough and meningitis vaccines, according to CDC. Two doses of HPV vaccine given at least six months apart at ages 11 and 12 will provide safe, effective, and long-lasting protection against HPV cancers, CDC says. Adolescents aged 13 to 14 are able to receive HPV vaccination on the new two-dose schedule, as well.

CDC will provide guidance to parents, health professionals, and insurers on the change in recommendation. The Food and Drug Administration last month approved adding a two-dose schedule for 9-valent HPV vaccine (Gardasil 9) for adolescents aged 9 through 14 years. CDC encourages clinicians to begin implementing the two-dose schedule in their practices to protect their preteen patients from HPV cancers.  

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