Alicia Gallegos

The showdown over federal subsidies under the Affordable Care Act commences March 4 as Supreme Court justices prepare to hear arguments in King v. Burwell. The outcome could significantly alter the ACA and impact millions of patients and their physicians.

“King v. Burwell is extremely important to patients and physicians alike,” said Danielle C. Gray, a New York attorney and coauthor of a brief on behalf of the American Academy of Pediatrics (AAP), the American Academy of Family Physicians (AAFP), and other groups in support of the government. “All told, studies predict that a ruling in petitioners’ favor would leave 8 million Americans uninsured and cause premiums to rise by almost 50% for those who continue to purchase insurance on federally facilitated exchanges. Physicians would likely see a significant drop in the number of insured patients, which would affect their treatment options and protocol.”

King supporters argue that the basis of the case is being lost in impact studies and outcome projections. The case is about the meaning of ACA language concerning subsidies and whether the executive branch has the authority to change laws as it sees fit, said Ilya Shapiro a senior fellow in constitutional studies at the Cato Institute, a libertarian public policy organization. The group issued a brief to the high court in support of King.

“A lot of arguments in the litigation and the media concern these sort of nightmare scenarios about people losing coverage. … You see some of that in the amicus briefs supporting the government,” Mr. Shapiro said in an interview. “A lot of them are … just kind of painting nightmare policy scenarios, which really should play no role in how you interpret the law.”

King v. Burwell centers on whether residents in states that rely on the federal marketplace are eligible for tax credits to purchase insurance or whether such assistance can go only to residents who purchase insurance via a state-run marketplace. The ACA states that tax credits apply to insurance purchased through an exchange “established by the state.” Challengers argue the law does not mention the federal exchange and that the subsidies are available only for purchases through state exchanges. The government interprets the ACA to allow subsidies whenever patients buys insurance on any exchange.

The future of the ACA depends on the Supreme Court’s interpretation of the language, said Eric J. Segall, professor of law at Georgia State University, Atlanta. Mr. Segall has written on the merits of King v. Burwell, including a recent opinion in the University of Pennsylvania Law Review.

The basis of the ACA comprises three key components: that insurers provide health insurance without denying coverage to patients with preexisting conditions; that the individual mandate that requires all Americans buy insurance; and that the availability of tax subsidies that ensures lower- and middle-income residents can afford to comply with the mandate.

“That third leg, the subsidies, is just as important as the first two legs,” he said in an interview. “If you cut off any of the three legs, the entire purpose of the Affordable Care Act is undercut and the law would be in serious danger.”

Mr. Segall said that he believes the plaintiffs cannot legally demonstrate that the ACA as a whole, clearly and unambiguously precludes tax credits to people who buy health insurance from federal exchanges. If a law is ambiguous or unclear, an agency’s decision must be upheld if it is reasonable, he notes. Given the structure of the ACA and its reliance on the three essential components, it is a reasonable interpretation that the statute allows for subsidies on both state and federal exchanges, Mr. Segall said.

However, King supporters argue the case should turn on the constitutional principle that neither a federal court nor an executive agency can ignore or override a law’s plain meaning.

“The U.S. Supreme Court believes in clear language, and the language in the law clearly states that the subsidies were available only to an exchange established by the state,” said Sally C. Pipes, president and CEO of the Pacific Research Institute, a San Francisco-based think tank and public policy research institute. The Institute issued a brief in support of King. “By giving subsidies [to] the 37 states that have federal exchanges or exchanges that are jointly operated, it goes against the written intent of the law.”

More than 50 friend of the court briefs have been sent to the high court in support or opposition of King, including comments from the American College of Physicians, the American Thoracic Society and the American Hospital Association. The ACP and its allies urged the court to uphold the premium subsidies created by the ACA in all states.

A Supreme Court ruling to overturn the subsidies would not only disrupt care for millions of patients, but also harm the physician-patient relationship and fuel uncompensated care, said Robert B. Doherty, ACP’s senior vice president for governmental affairs and public policy.

“On a practical level, it would introduce chaos in the patient-physician relationship, especially if an adverse ruling by the Supreme Court took effect immediately, as people – including people, such as cancer patients, who are currently undergoing treatment – immediately lost their coverage, and their physicians and hospitals then have to figure out how to continue to get them the care they need without insurance,” Mr. Doherty said in an interview.

Estimates vary on how many Americans could lose subsidies in 2016 if the high court strikes down the financial assistance. An Urban Institute analysis estimated that just over 6 million people would lose coverage; one from RAND finds that individual-market enrollment would decline by an estimated 10 million people (70%). AvalereHealth found 7.5 million Americans could face a 255% rise in premiums if the Supreme Court strikes down the subsidies, according to a Feb. 26 analysis.

If the Supreme Court sides with King, a congressional fix would be imperative, ACP’s Mr. Doherty said. Another option would be for states that rely on the federal exchange to form their own exchanges in order to retain the subsidies and keep patients covered. But both options pose cost, procedural, and political challenges, Mr. Doherty said in an interview.

“The problem will be that it is hard to envision a fix that a majority of Republicans could support and that would be acceptable to Democrats and President Obama,” he said. “ ... Politics being politics, we could end up with a ‘blame game’ with both sides trying to blame the other for millions of people losing health insurance coverage.”

[email protected]

On Twitter@legal_med

The showdown over federal subsidies under the Affordable Care Act commences March 4 as Supreme Court justices prepare to hear arguments in King v. Burwell. The outcome could significantly alter the ACA and impact millions of patients and their physicians.

“King v. Burwell is extremely important to patients and physicians alike,” said Danielle C. Gray, a New York attorney and coauthor of a brief on behalf of the American Academy of Pediatrics (AAP), the American Academy of Family Physicians (AAFP), and other groups in support of the government. “All told, studies predict that a ruling in petitioners’ favor would leave 8 million Americans uninsured and cause premiums to rise by almost 50% for those who continue to purchase insurance on federally facilitated exchanges. Physicians would likely see a significant drop in the number of insured patients, which would affect their treatment options and protocol.”

King supporters argue that the basis of the case is being lost in impact studies and outcome projections. The case is about the meaning of ACA language concerning subsidies and whether the executive branch has the authority to change laws as it sees fit, said Ilya Shapiro a senior fellow in constitutional studies at the Cato Institute, a libertarian public policy organization. The group issued a brief to the high court in support of King.

“A lot of arguments in the litigation and the media concern these sort of nightmare scenarios about people losing coverage. … You see some of that in the amicus briefs supporting the government,” Mr. Shapiro said in an interview. “A lot of them are … just kind of painting nightmare policy scenarios, which really should play no role in how you interpret the law.”

King v. Burwell centers on whether residents in states that rely on the federal marketplace are eligible for tax credits to purchase insurance or whether such assistance can go only to residents who purchase insurance via a state-run marketplace. The ACA states that tax credits apply to insurance purchased through an exchange “established by the state.” Challengers argue the law does not mention the federal exchange and that the subsidies are available only for purchases through state exchanges. The government interprets the ACA to allow subsidies whenever patients buys insurance on any exchange.

The future of the ACA depends on the Supreme Court’s interpretation of the language, said Eric J. Segall, professor of law at Georgia State University, Atlanta. Mr. Segall has written on the merits of King v. Burwell, including a recent opinion in the University of Pennsylvania Law Review.

The basis of the ACA comprises three key components: that insurers provide health insurance without denying coverage to patients with preexisting conditions; that the individual mandate that requires all Americans buy insurance; and that the availability of tax subsidies that ensures lower- and middle-income residents can afford to comply with the mandate.

“That third leg, the subsidies, is just as important as the first two legs,” he said in an interview. “If you cut off any of the three legs, the entire purpose of the Affordable Care Act is undercut and the law would be in serious danger.”

Mr. Segall said that he believes the plaintiffs cannot legally demonstrate that the ACA as a whole, clearly and unambiguously precludes tax credits to people who buy health insurance from federal exchanges. If a law is ambiguous or unclear, an agency’s decision must be upheld if it is reasonable, he notes. Given the structure of the ACA and its reliance on the three essential components, it is a reasonable interpretation that the statute allows for subsidies on both state and federal exchanges, Mr. Segall said.

However, King supporters argue the case should turn on the constitutional principle that neither a federal court nor an executive agency can ignore or override a law’s plain meaning.

“The U.S. Supreme Court believes in clear language, and the language in the law clearly states that the subsidies were available only to an exchange established by the state,” said Sally C. Pipes, president and CEO of the Pacific Research Institute, a San Francisco-based think tank and public policy research institute. The Institute issued a brief in support of King. “By giving subsidies [to] the 37 states that have federal exchanges or exchanges that are jointly operated, it goes against the written intent of the law.”

More than 50 friend of the court briefs have been sent to the high court in support or opposition of King, including comments from the American College of Physicians, the American Thoracic Society and the American Hospital Association. The ACP and its allies urged the court to uphold the premium subsidies created by the ACA in all states.

A Supreme Court ruling to overturn the subsidies would not only disrupt care for millions of patients, but also harm the physician-patient relationship and fuel uncompensated care, said Robert B. Doherty, ACP’s senior vice president for governmental affairs and public policy.

“On a practical level, it would introduce chaos in the patient-physician relationship, especially if an adverse ruling by the Supreme Court took effect immediately, as people – including people, such as cancer patients, who are currently undergoing treatment – immediately lost their coverage, and their physicians and hospitals then have to figure out how to continue to get them the care they need without insurance,” Mr. Doherty said in an interview.

Estimates vary on how many Americans could lose subsidies in 2016 if the high court strikes down the financial assistance. An Urban Institute analysis estimated that just over 6 million people would lose coverage; one from RAND finds that individual-market enrollment would decline by an estimated 10 million people (70%). AvalereHealth found 7.5 million Americans could face a 255% rise in premiums if the Supreme Court strikes down the subsidies, according to a Feb. 26 analysis.

If the Supreme Court sides with King, a congressional fix would be imperative, ACP’s Mr. Doherty said. Another option would be for states that rely on the federal exchange to form their own exchanges in order to retain the subsidies and keep patients covered. But both options pose cost, procedural, and political challenges, Mr. Doherty said in an interview.

“The problem will be that it is hard to envision a fix that a majority of Republicans could support and that would be acceptable to Democrats and President Obama,” he said. “ ... Politics being politics, we could end up with a ‘blame game’ with both sides trying to blame the other for millions of people losing health insurance coverage.”

[email protected]

On Twitter@legal_med

The showdown over federal subsidies under the Affordable Care Act commences March 4 as Supreme Court justices prepare to hear arguments in King v. Burwell. The outcome could significantly alter the ACA and impact millions of patients and their physicians.

“King v. Burwell is extremely important to patients and physicians alike,” said Danielle C. Gray, a New York attorney and coauthor of a brief on behalf of the American Academy of Pediatrics (AAP), the American Academy of Family Physicians (AAFP), and other groups in support of the government. “All told, studies predict that a ruling in petitioners’ favor would leave 8 million Americans uninsured and cause premiums to rise by almost 50% for those who continue to purchase insurance on federally facilitated exchanges. Physicians would likely see a significant drop in the number of insured patients, which would affect their treatment options and protocol.”

King supporters argue that the basis of the case is being lost in impact studies and outcome projections. The case is about the meaning of ACA language concerning subsidies and whether the executive branch has the authority to change laws as it sees fit, said Ilya Shapiro a senior fellow in constitutional studies at the Cato Institute, a libertarian public policy organization. The group issued a brief to the high court in support of King.

“A lot of arguments in the litigation and the media concern these sort of nightmare scenarios about people losing coverage. … You see some of that in the amicus briefs supporting the government,” Mr. Shapiro said in an interview. “A lot of them are … just kind of painting nightmare policy scenarios, which really should play no role in how you interpret the law.”

King v. Burwell centers on whether residents in states that rely on the federal marketplace are eligible for tax credits to purchase insurance or whether such assistance can go only to residents who purchase insurance via a state-run marketplace. The ACA states that tax credits apply to insurance purchased through an exchange “established by the state.” Challengers argue the law does not mention the federal exchange and that the subsidies are available only for purchases through state exchanges. The government interprets the ACA to allow subsidies whenever patients buys insurance on any exchange.

The future of the ACA depends on the Supreme Court’s interpretation of the language, said Eric J. Segall, professor of law at Georgia State University, Atlanta. Mr. Segall has written on the merits of King v. Burwell, including a recent opinion in the University of Pennsylvania Law Review.

The basis of the ACA comprises three key components: that insurers provide health insurance without denying coverage to patients with preexisting conditions; that the individual mandate that requires all Americans buy insurance; and that the availability of tax subsidies that ensures lower- and middle-income residents can afford to comply with the mandate.

“That third leg, the subsidies, is just as important as the first two legs,” he said in an interview. “If you cut off any of the three legs, the entire purpose of the Affordable Care Act is undercut and the law would be in serious danger.”

Mr. Segall said that he believes the plaintiffs cannot legally demonstrate that the ACA as a whole, clearly and unambiguously precludes tax credits to people who buy health insurance from federal exchanges. If a law is ambiguous or unclear, an agency’s decision must be upheld if it is reasonable, he notes. Given the structure of the ACA and its reliance on the three essential components, it is a reasonable interpretation that the statute allows for subsidies on both state and federal exchanges, Mr. Segall said.

However, King supporters argue the case should turn on the constitutional principle that neither a federal court nor an executive agency can ignore or override a law’s plain meaning.

“The U.S. Supreme Court believes in clear language, and the language in the law clearly states that the subsidies were available only to an exchange established by the state,” said Sally C. Pipes, president and CEO of the Pacific Research Institute, a San Francisco-based think tank and public policy research institute. The Institute issued a brief in support of King. “By giving subsidies [to] the 37 states that have federal exchanges or exchanges that are jointly operated, it goes against the written intent of the law.”

More than 50 friend of the court briefs have been sent to the high court in support or opposition of King, including comments from the American College of Physicians, the American Thoracic Society and the American Hospital Association. The ACP and its allies urged the court to uphold the premium subsidies created by the ACA in all states.

A Supreme Court ruling to overturn the subsidies would not only disrupt care for millions of patients, but also harm the physician-patient relationship and fuel uncompensated care, said Robert B. Doherty, ACP’s senior vice president for governmental affairs and public policy.

“On a practical level, it would introduce chaos in the patient-physician relationship, especially if an adverse ruling by the Supreme Court took effect immediately, as people – including people, such as cancer patients, who are currently undergoing treatment – immediately lost their coverage, and their physicians and hospitals then have to figure out how to continue to get them the care they need without insurance,” Mr. Doherty said in an interview.

Estimates vary on how many Americans could lose subsidies in 2016 if the high court strikes down the financial assistance. An Urban Institute analysis estimated that just over 6 million people would lose coverage; one from RAND finds that individual-market enrollment would decline by an estimated 10 million people (70%). AvalereHealth found 7.5 million Americans could face a 255% rise in premiums if the Supreme Court strikes down the subsidies, according to a Feb. 26 analysis.

If the Supreme Court sides with King, a congressional fix would be imperative, ACP’s Mr. Doherty said. Another option would be for states that rely on the federal exchange to form their own exchanges in order to retain the subsidies and keep patients covered. But both options pose cost, procedural, and political challenges, Mr. Doherty said in an interview.

“The problem will be that it is hard to envision a fix that a majority of Republicans could support and that would be acceptable to Democrats and President Obama,” he said. “ ... Politics being politics, we could end up with a ‘blame game’ with both sides trying to blame the other for millions of people losing health insurance coverage.”

[email protected]

On Twitter@legal_med

A U.S. Supreme Court ruling against a local dental board that attempted to stop nonprofessionals from whitening teeth could alter state medical boards’ ability to regulate the practice of medicine, some physician groups warn.

The federal high court ruled Feb. 25 that North Carolina’s state board of dental examiners violated federal antitrust laws when it tried to prevent nondentists from offering teeth-whitening services. State professional boards that regulate their competitors are only protected from antitrust scrutiny when supervised by state government, the court said in its 6-3 decision.

©Comstock/thinkstockphotos.com

The ruling in North Carolina State Board of Dental Examiners v. Federal Trade Commission is disappointing and will have a broad impact on how regulatory boards function nationwide, said Bobby D. White, chief operations officer for the North Carolina Board of Dental Examiners.

“Virtually every professional regulatory board in the country will eventually have to change the way it’s structured, change the way it’s supervised, or change the activities it performs,” Mr. White said in an interview. “And since all of those changes will take time – and often legislative activity – the opinion threatens to massively disrupt professional regulation.”

Federal Trade Commission Chair Edith Ramirez said the decision correctly affirms that a state may not give private market participants unsupervised authority to suppress competition, even if they act through a formally designated “state agency.”

“We are pleased with the Supreme Court’s recognition that the antitrust laws limit the ability of market incumbents to suppress competition through state professional boards,” Ms. Ramirez said in a statement. “We will remain vigilant through our enforcement initiatives and advocacy to safeguard competition and ensure that American consumers benefit from entrepreneurial initiative.”

The ruling stems from a dispute between the North Carolina State Board of Dental Examiners and a group of unlicensed teeth whiteners who were providing services at shopping malls. From 2006 to 2009, the board issued cease-and-desist letters to the nondentists, warning them about a state ban against stain removal by unlicensed practitioners.

The nondentists contacted the FTC, and an administrative law judge found that the board’s conduct constituted an unreasonable restraint of trade. The board argued its conduct was protected from antitrust oversight by the state action doctrine, a legal rule that applies to some state board conduct. The doctrine exempts from federal antitrust scrutiny state agencies that are actively supervised by a state.

But the FTC said the board’s activities fell outside the doctrine because it is made up of market participants – dentists – and is not actively supervised by a sovereign part of the state government. The 4th U.S. Circuit Court of Appeals in 2013 ruled in favor of the FTC, and the dental board appealed to the U.S. Supreme Court.

Physician leaders, including the American Medical Association and the American Academy of Family Physicians, issued a joint brief to the high court in support of the dental board.

If the appellate ruling stands, the decisions of state medical and dental boards will be distorted by considerations of federal competition policy, to the detriment of public health, the AMA said in its brief. In addition, highly qualified practitioners who would otherwise be willing to serve on boards would likely resign or refuse to accept office to avoid personal antitrust exposure, the brief argued.

But in its opinion, the Supreme Court majority said if a state wants to rely on active market participants as regulators, it must provide active supervision to achieve antitrust immunity. The North Carolina Board of Dental Examiners did not have such supervision, the court said.

“When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest,” the majority justices said in their opinion. “The court holds today that a state board on which a controlling number of decision makers are active market participants in the occupation the board regulates must satisfy active supervision requirement(s) in order to invoke state action antitrust immunity.”

The American Association of Nurse Anesthetists praised the decision, calling it a win for patients’ access to care. The AANA filed a joint brief to the high court in support of the FTC with several other organizations, including the American Nurses Association.

“The AANA and its co-amici had a strong interest in this case, because unnecessary restrictions on the practice of any qualified health care provider limit patient access to quality care, may increase cost, and can compromise the quality of health care delivery,” AANA President Sharon Pearce said in an interview.

“The Supreme Court decision is consistent with the arguments made by the AANA and its co-amici who urged the Supreme Court to affirm the appellate court’s decision for a number of reasons, including concerns that unsupervised state regulatory boards comprised mostly of practicing professionals have the potential of acting in their own economic self-interest by protecting their competitive position in ways not intended or authorized by the state, thus warranting oversight.”

The North Carolina Medical Society said the Supreme Court decision runs contrary to the time-tested regulatory model used nationwide by states to regulate learned professions.

“The decision focuses narrowly on antitrust law, not on the broader and far more important issue of protecting the public through effective regulation of medical practice,” the medical society said.

State medical boards will need to time to analyze the decision and decide how the ruling might affect the way in which they operate, said Dr. Humayun J. Chaudhry, president and CEO of the Federation of State Medical Boards. The FSMB plans to hold a webinar March 5 to address how state medical boards should apply the ruling.

“We recognize the importance of this decision and will now begin to make better sense of it and begin to address the open-ended questions” left by the ruling, he said in an interview. “What kind of impact [the decision has] remains to be seen.”

The AMA expressed disappointment with the decision.

“State medical boards are authorized by state governments to regulate medical licensing and medical practice in the interest of patient safety,” noted AMA President Robert M. Wah in a statement. “The AMA agrees with Justice [Samuel] Alito, speaking for the three dissenting justices, that today’s decision ‘will spawn confusion’ by creating far-reaching effects on the jurisdiction of states to regulate medicine and protect patient safety.

“The AMA will work with other physician groups to secure policy changes to reinforce long-held antitrust protections for activities conducted under state authority to protect patients,” Dr. Wah said.

[email protected]

On Twitter @legal_med

A U.S. Supreme Court ruling against a local dental board that attempted to stop nonprofessionals from whitening teeth could alter state medical boards’ ability to regulate the practice of medicine, some physician groups warn.

The federal high court ruled Feb. 25 that North Carolina’s state board of dental examiners violated federal antitrust laws when it tried to prevent nondentists from offering teeth-whitening services. State professional boards that regulate their competitors are only protected from antitrust scrutiny when supervised by state government, the court said in its 6-3 decision.

©Comstock/thinkstockphotos.com

The ruling in North Carolina State Board of Dental Examiners v. Federal Trade Commission is disappointing and will have a broad impact on how regulatory boards function nationwide, said Bobby D. White, chief operations officer for the North Carolina Board of Dental Examiners.

“Virtually every professional regulatory board in the country will eventually have to change the way it’s structured, change the way it’s supervised, or change the activities it performs,” Mr. White said in an interview. “And since all of those changes will take time – and often legislative activity – the opinion threatens to massively disrupt professional regulation.”

Federal Trade Commission Chair Edith Ramirez said the decision correctly affirms that a state may not give private market participants unsupervised authority to suppress competition, even if they act through a formally designated “state agency.”

“We are pleased with the Supreme Court’s recognition that the antitrust laws limit the ability of market incumbents to suppress competition through state professional boards,” Ms. Ramirez said in a statement. “We will remain vigilant through our enforcement initiatives and advocacy to safeguard competition and ensure that American consumers benefit from entrepreneurial initiative.”

The ruling stems from a dispute between the North Carolina State Board of Dental Examiners and a group of unlicensed teeth whiteners who were providing services at shopping malls. From 2006 to 2009, the board issued cease-and-desist letters to the nondentists, warning them about a state ban against stain removal by unlicensed practitioners.

The nondentists contacted the FTC, and an administrative law judge found that the board’s conduct constituted an unreasonable restraint of trade. The board argued its conduct was protected from antitrust oversight by the state action doctrine, a legal rule that applies to some state board conduct. The doctrine exempts from federal antitrust scrutiny state agencies that are actively supervised by a state.

But the FTC said the board’s activities fell outside the doctrine because it is made up of market participants – dentists – and is not actively supervised by a sovereign part of the state government. The 4th U.S. Circuit Court of Appeals in 2013 ruled in favor of the FTC, and the dental board appealed to the U.S. Supreme Court.

Physician leaders, including the American Medical Association and the American Academy of Family Physicians, issued a joint brief to the high court in support of the dental board.

If the appellate ruling stands, the decisions of state medical and dental boards will be distorted by considerations of federal competition policy, to the detriment of public health, the AMA said in its brief. In addition, highly qualified practitioners who would otherwise be willing to serve on boards would likely resign or refuse to accept office to avoid personal antitrust exposure, the brief argued.

But in its opinion, the Supreme Court majority said if a state wants to rely on active market participants as regulators, it must provide active supervision to achieve antitrust immunity. The North Carolina Board of Dental Examiners did not have such supervision, the court said.

“When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest,” the majority justices said in their opinion. “The court holds today that a state board on which a controlling number of decision makers are active market participants in the occupation the board regulates must satisfy active supervision requirement(s) in order to invoke state action antitrust immunity.”

The American Association of Nurse Anesthetists praised the decision, calling it a win for patients’ access to care. The AANA filed a joint brief to the high court in support of the FTC with several other organizations, including the American Nurses Association.

“The AANA and its co-amici had a strong interest in this case, because unnecessary restrictions on the practice of any qualified health care provider limit patient access to quality care, may increase cost, and can compromise the quality of health care delivery,” AANA President Sharon Pearce said in an interview.

“The Supreme Court decision is consistent with the arguments made by the AANA and its co-amici who urged the Supreme Court to affirm the appellate court’s decision for a number of reasons, including concerns that unsupervised state regulatory boards comprised mostly of practicing professionals have the potential of acting in their own economic self-interest by protecting their competitive position in ways not intended or authorized by the state, thus warranting oversight.”

The North Carolina Medical Society said the Supreme Court decision runs contrary to the time-tested regulatory model used nationwide by states to regulate learned professions.

“The decision focuses narrowly on antitrust law, not on the broader and far more important issue of protecting the public through effective regulation of medical practice,” the medical society said.

State medical boards will need to time to analyze the decision and decide how the ruling might affect the way in which they operate, said Dr. Humayun J. Chaudhry, president and CEO of the Federation of State Medical Boards. The FSMB plans to hold a webinar March 5 to address how state medical boards should apply the ruling.

“We recognize the importance of this decision and will now begin to make better sense of it and begin to address the open-ended questions” left by the ruling, he said in an interview. “What kind of impact [the decision has] remains to be seen.”

The AMA expressed disappointment with the decision.

“State medical boards are authorized by state governments to regulate medical licensing and medical practice in the interest of patient safety,” noted AMA President Robert M. Wah in a statement. “The AMA agrees with Justice [Samuel] Alito, speaking for the three dissenting justices, that today’s decision ‘will spawn confusion’ by creating far-reaching effects on the jurisdiction of states to regulate medicine and protect patient safety.

“The AMA will work with other physician groups to secure policy changes to reinforce long-held antitrust protections for activities conducted under state authority to protect patients,” Dr. Wah said.

[email protected]

On Twitter @legal_med

A U.S. Supreme Court ruling against a local dental board that attempted to stop nonprofessionals from whitening teeth could alter state medical boards’ ability to regulate the practice of medicine, some physician groups warn.

The federal high court ruled Feb. 25 that North Carolina’s state board of dental examiners violated federal antitrust laws when it tried to prevent nondentists from offering teeth-whitening services. State professional boards that regulate their competitors are only protected from antitrust scrutiny when supervised by state government, the court said in its 6-3 decision.

©Comstock/thinkstockphotos.com

The ruling in North Carolina State Board of Dental Examiners v. Federal Trade Commission is disappointing and will have a broad impact on how regulatory boards function nationwide, said Bobby D. White, chief operations officer for the North Carolina Board of Dental Examiners.

“Virtually every professional regulatory board in the country will eventually have to change the way it’s structured, change the way it’s supervised, or change the activities it performs,” Mr. White said in an interview. “And since all of those changes will take time – and often legislative activity – the opinion threatens to massively disrupt professional regulation.”

Federal Trade Commission Chair Edith Ramirez said the decision correctly affirms that a state may not give private market participants unsupervised authority to suppress competition, even if they act through a formally designated “state agency.”

“We are pleased with the Supreme Court’s recognition that the antitrust laws limit the ability of market incumbents to suppress competition through state professional boards,” Ms. Ramirez said in a statement. “We will remain vigilant through our enforcement initiatives and advocacy to safeguard competition and ensure that American consumers benefit from entrepreneurial initiative.”

The ruling stems from a dispute between the North Carolina State Board of Dental Examiners and a group of unlicensed teeth whiteners who were providing services at shopping malls. From 2006 to 2009, the board issued cease-and-desist letters to the nondentists, warning them about a state ban against stain removal by unlicensed practitioners.

The nondentists contacted the FTC, and an administrative law judge found that the board’s conduct constituted an unreasonable restraint of trade. The board argued its conduct was protected from antitrust oversight by the state action doctrine, a legal rule that applies to some state board conduct. The doctrine exempts from federal antitrust scrutiny state agencies that are actively supervised by a state.

But the FTC said the board’s activities fell outside the doctrine because it is made up of market participants – dentists – and is not actively supervised by a sovereign part of the state government. The 4th U.S. Circuit Court of Appeals in 2013 ruled in favor of the FTC, and the dental board appealed to the U.S. Supreme Court.

Physician leaders, including the American Medical Association and the American Academy of Family Physicians, issued a joint brief to the high court in support of the dental board.

If the appellate ruling stands, the decisions of state medical and dental boards will be distorted by considerations of federal competition policy, to the detriment of public health, the AMA said in its brief. In addition, highly qualified practitioners who would otherwise be willing to serve on boards would likely resign or refuse to accept office to avoid personal antitrust exposure, the brief argued.

But in its opinion, the Supreme Court majority said if a state wants to rely on active market participants as regulators, it must provide active supervision to achieve antitrust immunity. The North Carolina Board of Dental Examiners did not have such supervision, the court said.

“When a state empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest,” the majority justices said in their opinion. “The court holds today that a state board on which a controlling number of decision makers are active market participants in the occupation the board regulates must satisfy active supervision requirement(s) in order to invoke state action antitrust immunity.”

The American Association of Nurse Anesthetists praised the decision, calling it a win for patients’ access to care. The AANA filed a joint brief to the high court in support of the FTC with several other organizations, including the American Nurses Association.

“The AANA and its co-amici had a strong interest in this case, because unnecessary restrictions on the practice of any qualified health care provider limit patient access to quality care, may increase cost, and can compromise the quality of health care delivery,” AANA President Sharon Pearce said in an interview.

“The Supreme Court decision is consistent with the arguments made by the AANA and its co-amici who urged the Supreme Court to affirm the appellate court’s decision for a number of reasons, including concerns that unsupervised state regulatory boards comprised mostly of practicing professionals have the potential of acting in their own economic self-interest by protecting their competitive position in ways not intended or authorized by the state, thus warranting oversight.”

The North Carolina Medical Society said the Supreme Court decision runs contrary to the time-tested regulatory model used nationwide by states to regulate learned professions.

“The decision focuses narrowly on antitrust law, not on the broader and far more important issue of protecting the public through effective regulation of medical practice,” the medical society said.

State medical boards will need to time to analyze the decision and decide how the ruling might affect the way in which they operate, said Dr. Humayun J. Chaudhry, president and CEO of the Federation of State Medical Boards. The FSMB plans to hold a webinar March 5 to address how state medical boards should apply the ruling.

“We recognize the importance of this decision and will now begin to make better sense of it and begin to address the open-ended questions” left by the ruling, he said in an interview. “What kind of impact [the decision has] remains to be seen.”

The AMA expressed disappointment with the decision.

“State medical boards are authorized by state governments to regulate medical licensing and medical practice in the interest of patient safety,” noted AMA President Robert M. Wah in a statement. “The AMA agrees with Justice [Samuel] Alito, speaking for the three dissenting justices, that today’s decision ‘will spawn confusion’ by creating far-reaching effects on the jurisdiction of states to regulate medicine and protect patient safety.

“The AMA will work with other physician groups to secure policy changes to reinforce long-held antitrust protections for activities conducted under state authority to protect patients,” Dr. Wah said.

[email protected]

On Twitter @legal_med

Utah legislators have passed a bill that would expand the practice of telemedicine by streamlining physician licensure.

The Utah House and Senate approved HB 0121, the Interstate Medical Licensure Compact, in late February. The legislation now heads to Gov. Gary Herbert for his signature.

“We’re pleased to see Utah’s state legislature be the first in the country to advance this important legislation, which will expand access to health care for so many Americans,” said Dr. Humayun J. Chaudhry, president and CEO of the Federation of State Medical Boards (FSMB), in a statement. “It is very encouraging to see the swift action being taken by Utah lawmakers, as well as recent introductions and committee hearings on the Compact in many other states.”

The FSMB House of Delegates at its 2013 annual meeting unanimously approved the development of an interstate compact to expedite medical licensure and facilitate multistate practice. Under the proposed system, states and doctors would voluntarily enter into the compact, and approved physicians would be under the jurisdiction of the state medical board in which the patient is located at the time of the medical interaction.

State boards of medicine would retain their individual authority for discipline and oversight, according to the compact. Interested physicians would also need to complete a background check, including biometric data (such as fingerprints), and pass all components of either the U.S. Medical Licensing Examination or the Comprehensive Osteopathic Medicine Licensing Examination within three attempts.

Since the model compact’s final draft was released in September 2014, 14 states have formally introduced the legislation, including Idaho, Illinois, Iowa, Maryland, Minnesota, Montana, Nebraska, Oklahoma, South Dakota, Texas, Utah, Vermont, West Virginia, and Wyoming. More than 25 medical and osteopathic boards have publicly expressed support for the model legislation, according to the FSMB.

[email protected]


On Twitter @legal_med

Utah legislators have passed a bill that would expand the practice of telemedicine by streamlining physician licensure.

The Utah House and Senate approved HB 0121, the Interstate Medical Licensure Compact, in late February. The legislation now heads to Gov. Gary Herbert for his signature.

“We’re pleased to see Utah’s state legislature be the first in the country to advance this important legislation, which will expand access to health care for so many Americans,” said Dr. Humayun J. Chaudhry, president and CEO of the Federation of State Medical Boards (FSMB), in a statement. “It is very encouraging to see the swift action being taken by Utah lawmakers, as well as recent introductions and committee hearings on the Compact in many other states.”

The FSMB House of Delegates at its 2013 annual meeting unanimously approved the development of an interstate compact to expedite medical licensure and facilitate multistate practice. Under the proposed system, states and doctors would voluntarily enter into the compact, and approved physicians would be under the jurisdiction of the state medical board in which the patient is located at the time of the medical interaction.

State boards of medicine would retain their individual authority for discipline and oversight, according to the compact. Interested physicians would also need to complete a background check, including biometric data (such as fingerprints), and pass all components of either the U.S. Medical Licensing Examination or the Comprehensive Osteopathic Medicine Licensing Examination within three attempts.

Since the model compact’s final draft was released in September 2014, 14 states have formally introduced the legislation, including Idaho, Illinois, Iowa, Maryland, Minnesota, Montana, Nebraska, Oklahoma, South Dakota, Texas, Utah, Vermont, West Virginia, and Wyoming. More than 25 medical and osteopathic boards have publicly expressed support for the model legislation, according to the FSMB.

[email protected]


On Twitter @legal_med

Utah legislators have passed a bill that would expand the practice of telemedicine by streamlining physician licensure.

The Utah House and Senate approved HB 0121, the Interstate Medical Licensure Compact, in late February. The legislation now heads to Gov. Gary Herbert for his signature.

“We’re pleased to see Utah’s state legislature be the first in the country to advance this important legislation, which will expand access to health care for so many Americans,” said Dr. Humayun J. Chaudhry, president and CEO of the Federation of State Medical Boards (FSMB), in a statement. “It is very encouraging to see the swift action being taken by Utah lawmakers, as well as recent introductions and committee hearings on the Compact in many other states.”

The FSMB House of Delegates at its 2013 annual meeting unanimously approved the development of an interstate compact to expedite medical licensure and facilitate multistate practice. Under the proposed system, states and doctors would voluntarily enter into the compact, and approved physicians would be under the jurisdiction of the state medical board in which the patient is located at the time of the medical interaction.

State boards of medicine would retain their individual authority for discipline and oversight, according to the compact. Interested physicians would also need to complete a background check, including biometric data (such as fingerprints), and pass all components of either the U.S. Medical Licensing Examination or the Comprehensive Osteopathic Medicine Licensing Examination within three attempts.

Since the model compact’s final draft was released in September 2014, 14 states have formally introduced the legislation, including Idaho, Illinois, Iowa, Maryland, Minnesota, Montana, Nebraska, Oklahoma, South Dakota, Texas, Utah, Vermont, West Virginia, and Wyoming. More than 25 medical and osteopathic boards have publicly expressed support for the model legislation, according to the FSMB.

[email protected]


On Twitter @legal_med

Frustrated by current maintenance of certification (MOC) programs, a growing number of physicians are turning to an alternative they say is less burdensome, more relevant, and far cheaper. The newly formed National Board of Physicians and Surgeons (NBPAS) launched its continuous certification program in late January and now boasts 500 applicants and thousands of supporters.

The NBPAS offers an alternative to current MOC programs that require labor-intensive, expensive activities that do not advance physicians’ professional development, said California cardiologist Paul Teirstein, NBPAS president and founder.

Courtesy Kellee Strain

“Lifelong learning does not come in a one-size-fits-all package,” said Dr. Teirstein of Scripps Health in La Jolla, Calif. “No single program will ever meet everyone’s needs. NBPAS provides physicians with a much-needed alternative.”

But some physician leaders are skeptical about the new board and whether its requirements meet quality and safety expectations by patients and health systems. The NBPAS is not recognized by the American Board of Medical Specialties, nor do its requirements appear to align with the well-recognized standards of ABMS member boards, Dr. Lois Margaret Nora, ABMS president and CEO, said in an interview.

“The truth is that this is a fundamentally different organization,” Dr. Nora said. “My understanding is there are a number of states (that) have higher requirements for continuing medical education to maintain their licensure than the requirements [the NBPAS] is asking” for.

The NBPAS’ certification program is open to most physicians in ABMS nonsurgical specialties, and the board is in the process of adding more specialties, according to its website. Criteria for NBPAS certification include previous certification by an ABMS member board, a valid license to practice medicine, at least 50 hours of Accreditation Council for Continuing Medical Education (ACCME) accredited CME within the past 24 months and active hospital privileges for selected specialties, among other requirements. Cost of the program is $84.50 a year.

Organizers say the board is committed to providing certification that ensures physician compliance with national standards and promotes lifelong learning. Board leaders are working to gain acceptance by hospitals and payers, Dr. Teirstein said, including lobbying hospital executive committees for recognition of NBPAS as an alternative form of continuing certification. The NBPAS Young Physicians Alliance, led by Dr. Ricardo Correa, is also striving to create a dialogue and share news with recent graduates and trainees about the group.

The launch of the NBPAS’ program occurred just weeks before the American Board of Internal Medicine (ABIM) announced drastic changes to its MOC process. In a frank announcement, ABIM apologized to doctors for an MOC program that “clearly got it wrong,” and pledged to make the program more consistent with physicians’ practice and values. Among the immediate changes are updates to its internal medicine exam, suspension of the practice assessment, patient voice, and patient safety requirements for at least 2 years, and setting MOC enrollment fees at or below 2014 levels through at least 2017.

The changes followed harsh criticism by doctors that ABIM’s MOC requirements had become too onerous and expensive. By January 2015, a Web-based petition against the program had garnered more than 19,000 signatures and drawn thousands of comments in protest of the new requirements. Physician organizations, including ABMS and the American College of Physicians, applauded ABIM’s Feb. 3 program modifications, calling the move monumental and praising ABIM for addressing physician concerns.

“Continuous quality improvement of MOC programs is very important, and we support the listening to their diplomates and continuing the quality improvement of these aspects of the program,” Dr. Nora said in an interview.

However, not all doctors were satisfied with ABIM’s announcement. New York interventional cardiologist Gregg W. Stone of Columbia University Medical Center, New York, said the modifications failed to address all of doctors’ MOC concerns, such as cost. He believes it was NBPAS that drove ABIM to issue the changes.

“I see [the changes] as a desperation act in response to the fact that now there is an alternative where physicians will be able to go,” said Dr. Stone, a member of the NBPAS advisory board. “They’ve realized physicians really are serious and are not going to take what [they’re] selling anymore.”

Dr. Teirstein noted that interest and responses to NBPAS tripled after ABIM’s apology.

ABIM is not concerned with NBPAS, nor is it worried that the new program could draw physicians away from its MOC process, said ABIM President and CEO Richard J. Baron. ABIM’s recent MOC changes have been met with widespread gratitude and optimism by many doctors and a strong desire by physician organizations to work with ABIM on advancing the program, Dr. Baron said in an interview.

“There have always been alternative boards,” Dr. Baron said. “We know that for people to use the ABIM credential, they have to believe in the ABIM credential. When you look at what our credential is, and what other credentials are, there’s a reason that the ABMS credential is the one that most people use, and it has to do with rigor and standards. You can do a comparison of what the new board is asking and draw [your] own conclusion.”

The American Association of Clinical Endocrinologists (AACE) meanwhile, commended ABIM for listening to physicians and making the adjustments, but also expressed support for NBPAS. In a statement, AACE President R. Mack Harrell invited association members to visit the NBPAS website and consider its process.

“While AACE will continue to assist ABIM in whatever way we can to improve their MOC pathway, we will also advocate for other viable certification pathways that have relevance for our membership,” Dr. Harrell said in the statement. “At AACE, we believe that our individual members are the best judges of their own continuing educational needs, and our mission is to make sure that a variety of relevant options are available.”

Still other physicians would like to see the complete eradication of maintenance of certification. Ideally, MOC would be a voluntary process only, said Dr. Jonathan Weiss, an internist in private practice who specializes in critical care medicine and pulmonology in Monticello, N.Y. Dr. Weiss is part of an outspoken group of physicians against MOC that have published criticism of the process.

“It’s good there’s the possibility of an alternative,” he said of NBPAS. But “frankly, part of our feeling is we don’t want to be part of any recertification because we think the whole thing is a flawed, phony process. Lawyers don’t have to get “re-barred.” I would rather just be a doctor in good standing ... do my self-directed CME. That should be sufficient.”

[email protected]

On Twitter @legal_med

Frustrated by current maintenance of certification (MOC) programs, a growing number of physicians are turning to an alternative they say is less burdensome, more relevant, and far cheaper. The newly formed National Board of Physicians and Surgeons (NBPAS) launched its continuous certification program in late January and now boasts 500 applicants and thousands of supporters.

The NBPAS offers an alternative to current MOC programs that require labor-intensive, expensive activities that do not advance physicians’ professional development, said California cardiologist Paul Teirstein, NBPAS president and founder.

Courtesy Kellee Strain

“Lifelong learning does not come in a one-size-fits-all package,” said Dr. Teirstein of Scripps Health in La Jolla, Calif. “No single program will ever meet everyone’s needs. NBPAS provides physicians with a much-needed alternative.”

But some physician leaders are skeptical about the new board and whether its requirements meet quality and safety expectations by patients and health systems. The NBPAS is not recognized by the American Board of Medical Specialties, nor do its requirements appear to align with the well-recognized standards of ABMS member boards, Dr. Lois Margaret Nora, ABMS president and CEO, said in an interview.

“The truth is that this is a fundamentally different organization,” Dr. Nora said. “My understanding is there are a number of states (that) have higher requirements for continuing medical education to maintain their licensure than the requirements [the NBPAS] is asking” for.

The NBPAS’ certification program is open to most physicians in ABMS nonsurgical specialties, and the board is in the process of adding more specialties, according to its website. Criteria for NBPAS certification include previous certification by an ABMS member board, a valid license to practice medicine, at least 50 hours of Accreditation Council for Continuing Medical Education (ACCME) accredited CME within the past 24 months and active hospital privileges for selected specialties, among other requirements. Cost of the program is $84.50 a year.

Organizers say the board is committed to providing certification that ensures physician compliance with national standards and promotes lifelong learning. Board leaders are working to gain acceptance by hospitals and payers, Dr. Teirstein said, including lobbying hospital executive committees for recognition of NBPAS as an alternative form of continuing certification. The NBPAS Young Physicians Alliance, led by Dr. Ricardo Correa, is also striving to create a dialogue and share news with recent graduates and trainees about the group.

The launch of the NBPAS’ program occurred just weeks before the American Board of Internal Medicine (ABIM) announced drastic changes to its MOC process. In a frank announcement, ABIM apologized to doctors for an MOC program that “clearly got it wrong,” and pledged to make the program more consistent with physicians’ practice and values. Among the immediate changes are updates to its internal medicine exam, suspension of the practice assessment, patient voice, and patient safety requirements for at least 2 years, and setting MOC enrollment fees at or below 2014 levels through at least 2017.

The changes followed harsh criticism by doctors that ABIM’s MOC requirements had become too onerous and expensive. By January 2015, a Web-based petition against the program had garnered more than 19,000 signatures and drawn thousands of comments in protest of the new requirements. Physician organizations, including ABMS and the American College of Physicians, applauded ABIM’s Feb. 3 program modifications, calling the move monumental and praising ABIM for addressing physician concerns.

“Continuous quality improvement of MOC programs is very important, and we support the listening to their diplomates and continuing the quality improvement of these aspects of the program,” Dr. Nora said in an interview.

However, not all doctors were satisfied with ABIM’s announcement. New York interventional cardiologist Gregg W. Stone of Columbia University Medical Center, New York, said the modifications failed to address all of doctors’ MOC concerns, such as cost. He believes it was NBPAS that drove ABIM to issue the changes.

“I see [the changes] as a desperation act in response to the fact that now there is an alternative where physicians will be able to go,” said Dr. Stone, a member of the NBPAS advisory board. “They’ve realized physicians really are serious and are not going to take what [they’re] selling anymore.”

Dr. Teirstein noted that interest and responses to NBPAS tripled after ABIM’s apology.

ABIM is not concerned with NBPAS, nor is it worried that the new program could draw physicians away from its MOC process, said ABIM President and CEO Richard J. Baron. ABIM’s recent MOC changes have been met with widespread gratitude and optimism by many doctors and a strong desire by physician organizations to work with ABIM on advancing the program, Dr. Baron said in an interview.

“There have always been alternative boards,” Dr. Baron said. “We know that for people to use the ABIM credential, they have to believe in the ABIM credential. When you look at what our credential is, and what other credentials are, there’s a reason that the ABMS credential is the one that most people use, and it has to do with rigor and standards. You can do a comparison of what the new board is asking and draw [your] own conclusion.”

The American Association of Clinical Endocrinologists (AACE) meanwhile, commended ABIM for listening to physicians and making the adjustments, but also expressed support for NBPAS. In a statement, AACE President R. Mack Harrell invited association members to visit the NBPAS website and consider its process.

“While AACE will continue to assist ABIM in whatever way we can to improve their MOC pathway, we will also advocate for other viable certification pathways that have relevance for our membership,” Dr. Harrell said in the statement. “At AACE, we believe that our individual members are the best judges of their own continuing educational needs, and our mission is to make sure that a variety of relevant options are available.”

Still other physicians would like to see the complete eradication of maintenance of certification. Ideally, MOC would be a voluntary process only, said Dr. Jonathan Weiss, an internist in private practice who specializes in critical care medicine and pulmonology in Monticello, N.Y. Dr. Weiss is part of an outspoken group of physicians against MOC that have published criticism of the process.

“It’s good there’s the possibility of an alternative,” he said of NBPAS. But “frankly, part of our feeling is we don’t want to be part of any recertification because we think the whole thing is a flawed, phony process. Lawyers don’t have to get “re-barred.” I would rather just be a doctor in good standing ... do my self-directed CME. That should be sufficient.”

[email protected]

On Twitter @legal_med

Frustrated by current maintenance of certification (MOC) programs, a growing number of physicians are turning to an alternative they say is less burdensome, more relevant, and far cheaper. The newly formed National Board of Physicians and Surgeons (NBPAS) launched its continuous certification program in late January and now boasts 500 applicants and thousands of supporters.

The NBPAS offers an alternative to current MOC programs that require labor-intensive, expensive activities that do not advance physicians’ professional development, said California cardiologist Paul Teirstein, NBPAS president and founder.

Courtesy Kellee Strain

“Lifelong learning does not come in a one-size-fits-all package,” said Dr. Teirstein of Scripps Health in La Jolla, Calif. “No single program will ever meet everyone’s needs. NBPAS provides physicians with a much-needed alternative.”

But some physician leaders are skeptical about the new board and whether its requirements meet quality and safety expectations by patients and health systems. The NBPAS is not recognized by the American Board of Medical Specialties, nor do its requirements appear to align with the well-recognized standards of ABMS member boards, Dr. Lois Margaret Nora, ABMS president and CEO, said in an interview.

“The truth is that this is a fundamentally different organization,” Dr. Nora said. “My understanding is there are a number of states (that) have higher requirements for continuing medical education to maintain their licensure than the requirements [the NBPAS] is asking” for.

The NBPAS’ certification program is open to most physicians in ABMS nonsurgical specialties, and the board is in the process of adding more specialties, according to its website. Criteria for NBPAS certification include previous certification by an ABMS member board, a valid license to practice medicine, at least 50 hours of Accreditation Council for Continuing Medical Education (ACCME) accredited CME within the past 24 months and active hospital privileges for selected specialties, among other requirements. Cost of the program is $84.50 a year.

Organizers say the board is committed to providing certification that ensures physician compliance with national standards and promotes lifelong learning. Board leaders are working to gain acceptance by hospitals and payers, Dr. Teirstein said, including lobbying hospital executive committees for recognition of NBPAS as an alternative form of continuing certification. The NBPAS Young Physicians Alliance, led by Dr. Ricardo Correa, is also striving to create a dialogue and share news with recent graduates and trainees about the group.

The launch of the NBPAS’ program occurred just weeks before the American Board of Internal Medicine (ABIM) announced drastic changes to its MOC process. In a frank announcement, ABIM apologized to doctors for an MOC program that “clearly got it wrong,” and pledged to make the program more consistent with physicians’ practice and values. Among the immediate changes are updates to its internal medicine exam, suspension of the practice assessment, patient voice, and patient safety requirements for at least 2 years, and setting MOC enrollment fees at or below 2014 levels through at least 2017.

The changes followed harsh criticism by doctors that ABIM’s MOC requirements had become too onerous and expensive. By January 2015, a Web-based petition against the program had garnered more than 19,000 signatures and drawn thousands of comments in protest of the new requirements. Physician organizations, including ABMS and the American College of Physicians, applauded ABIM’s Feb. 3 program modifications, calling the move monumental and praising ABIM for addressing physician concerns.

“Continuous quality improvement of MOC programs is very important, and we support the listening to their diplomates and continuing the quality improvement of these aspects of the program,” Dr. Nora said in an interview.

However, not all doctors were satisfied with ABIM’s announcement. New York interventional cardiologist Gregg W. Stone of Columbia University Medical Center, New York, said the modifications failed to address all of doctors’ MOC concerns, such as cost. He believes it was NBPAS that drove ABIM to issue the changes.

“I see [the changes] as a desperation act in response to the fact that now there is an alternative where physicians will be able to go,” said Dr. Stone, a member of the NBPAS advisory board. “They’ve realized physicians really are serious and are not going to take what [they’re] selling anymore.”

Dr. Teirstein noted that interest and responses to NBPAS tripled after ABIM’s apology.

ABIM is not concerned with NBPAS, nor is it worried that the new program could draw physicians away from its MOC process, said ABIM President and CEO Richard J. Baron. ABIM’s recent MOC changes have been met with widespread gratitude and optimism by many doctors and a strong desire by physician organizations to work with ABIM on advancing the program, Dr. Baron said in an interview.

“There have always been alternative boards,” Dr. Baron said. “We know that for people to use the ABIM credential, they have to believe in the ABIM credential. When you look at what our credential is, and what other credentials are, there’s a reason that the ABMS credential is the one that most people use, and it has to do with rigor and standards. You can do a comparison of what the new board is asking and draw [your] own conclusion.”

The American Association of Clinical Endocrinologists (AACE) meanwhile, commended ABIM for listening to physicians and making the adjustments, but also expressed support for NBPAS. In a statement, AACE President R. Mack Harrell invited association members to visit the NBPAS website and consider its process.

“While AACE will continue to assist ABIM in whatever way we can to improve their MOC pathway, we will also advocate for other viable certification pathways that have relevance for our membership,” Dr. Harrell said in the statement. “At AACE, we believe that our individual members are the best judges of their own continuing educational needs, and our mission is to make sure that a variety of relevant options are available.”

Still other physicians would like to see the complete eradication of maintenance of certification. Ideally, MOC would be a voluntary process only, said Dr. Jonathan Weiss, an internist in private practice who specializes in critical care medicine and pulmonology in Monticello, N.Y. Dr. Weiss is part of an outspoken group of physicians against MOC that have published criticism of the process.

“It’s good there’s the possibility of an alternative,” he said of NBPAS. But “frankly, part of our feeling is we don’t want to be part of any recertification because we think the whole thing is a flawed, phony process. Lawyers don’t have to get “re-barred.” I would rather just be a doctor in good standing ... do my self-directed CME. That should be sufficient.”

[email protected]

On Twitter @legal_med

In a frank announcement, the American Board of Internal Medicine has apologized to doctors for a Maintenance of Certification program that “clearly got it wrong,” and pledged to make the program more consistent with internists’ practice and values.

Among the immediate changes: updates to its internal medicine exam; suspension of the practice assessment, patient voice, and patient safety requirements for at least 2 years; and MOC enrollment fees set at or below the 2014 levels through at least 2017.

Dr. John I. Allen, AGAF, president of the American Gastroenterological Association, said the move by ABIM to implement the changes shows the organization heard the tremendous negative feedback by physicians about the burdensome process and rightly responded.

“We all believe that lifelong learning is important and that retesting in some form is needed throughout the career of a physician,” Dr. Allen said in an interview. “The process of MOC and the reporting burdens on physicians, however, was much too high and with little evidence for positive effect. I applaud the ABIM for admitting their mistake and apologizing. We, at the AGA, look forward to helping shape a meaningful and ongoing program to maintain specialty certification.”

In a statement, ABIM President and CEO Richard J. Baron said it was clear that aspects of the program were not meeting physicians’ needs.

“We got it wrong and sincerely apologize,” Dr. Baron said in the statement. “We are sorry. ABIM is changing the way it does its work so that it is guided by, and integrated fully with, the medical community that created it. The goal is to co-create a MOC program that reflects the medical community’s shared values about the practice of medicine today and provides a professionally created and publicly recognizable framework for keeping up in our discipline.”

AGA is uniquely positioned to contribute to ABIM’s collaborative process with a newly convened task force to identify the ideal pathway to recertification and assessment of physician competency.

As part of the newly announced changes, ABIM will make its internal medicine exam more reflective of physician practice, with changes to be incorporated in fall 2015, according to the announcement. The decision to suspend the practice assessment, patient voice, and patient safety requirements means internists who have not completed activities in these areas will not have their certification status changed. Diplomates who are currently uncertified but who have satisfied all requirements for MOC except for the practice assessment requirement will be issued a new certificate this year. Within the next 6 months, ABIM will also change the language used to publicly report a diplomate’s MOC status on its website from “meeting MOC requirements” to “participating in MOC.”

Dr. Allen, who is clinical chief of digestive diseases at Yale University in New Haven, Conn., noted that suspension of the MOC’s Practice Improvement, Patient Voice and Practice Assessment component will reduce the most onerous part of the process and give physicians time to rework the portion or eliminate it.

“We still will need to work with ABIM to make the recertification test reflective of our practices and style of knowledge acquisition,” he said. “I believe we all can pause long enough to reshape MOC.”

By the end of 2015, ABIM said it will ensure new and more flexible ways for internists to demonstrate self-assessment of medical knowledge by recognizing most forms of Accreditation Council for Continuing Medical Education–approved continuing medical education. An online FAQ provides more information on the changes.

ABIM initially revamped its certification policies beginning in January 2014, shortening the time physicians had to earn MOC points and publishing online whether doctors were meeting requirements. The actions meant that every 2 years physicians certified by ABIM had to earn at least some points by completing some of the educational activities approved for MOC credit, and at the 5-year mark, earn 100 points. Previously, physicians were given 10 years to earn 100 points. Physicians were also listed publicly as either “certified, meeting maintenance of certification requirements” or “certified, not meeting MOC requirements.”

The changes were met with almost immediate backlash. Doctors expressed frustration that the requirements were burdensome, expensive, and irrelevant. By January 2015, a Web-based petition against the program garnered more than 19,000 signatures and has drawn thousands of comments in protest of the new requirements. A second petition had nearly 6,000 signatures with doctors taking a “pledge of noncompliance” with the requirements.

A January perspective piece in the New England Journal of Medicine expressed that the MOC program is essentially a money-generating activity for the ABIM and that the organization has lost contact with the realities of day-to-day clinical practice.

In an interview, Dr. Baron said such feedback drove ABIM to make the changes. He acknowledged that it would take time to build back trust within the community.

“Part of why we’re taking the steps we’re taking is that it’s critical to have trust with the community,” Dr. Baron said. “Part of how you do that is if you got something wrong, you apologize for it, you acknowledge you got it wrong, and you commit to making changes and try to get it right.”

Dr. Wayne J. Riley, ACP president-elect and a clinical professor of medicine at Vanderbilt University in Nashville, Tenn., said the ABIM’s program changes rightly respond to the high level of dissatisfaction and angst with MOC strongly voiced by internists of all stripes.

“The reality of modern medical practice in this dynamic era of health care change really argues for an improved process that better reflects how we practice in various practice settings and which does not threaten livelihoods and professional privileges,” he said in an interview. “With these impending changes, it is my hope that now all ABIM diplomates can embrace with gusto the continuous improvement ideal reflected in certification in a more value-added, time-efficient, and more educationally rich manner.”

Dr. Baron noted that ABIM will be working with medical societies and directly with diplomates to seek input regarding the MOC program through meetings, webinars, forums, online communications channels, surveys, and other mediums.

“I fervently hope that we will come together as a community to figure out how to build a program that embodies and actualizes the values that internists have,” he said in the interview. “We’re going to need a lot of community participation to make that work and I hope that people will step up.”

[email protected]


On Twitter @legal_med

In a frank announcement, the American Board of Internal Medicine has apologized to doctors for a Maintenance of Certification program that “clearly got it wrong,” and pledged to make the program more consistent with internists’ practice and values.

Among the immediate changes: updates to its internal medicine exam; suspension of the practice assessment, patient voice, and patient safety requirements for at least 2 years; and MOC enrollment fees set at or below the 2014 levels through at least 2017.

Dr. John I. Allen, AGAF, president of the American Gastroenterological Association, said the move by ABIM to implement the changes shows the organization heard the tremendous negative feedback by physicians about the burdensome process and rightly responded.

“We all believe that lifelong learning is important and that retesting in some form is needed throughout the career of a physician,” Dr. Allen said in an interview. “The process of MOC and the reporting burdens on physicians, however, was much too high and with little evidence for positive effect. I applaud the ABIM for admitting their mistake and apologizing. We, at the AGA, look forward to helping shape a meaningful and ongoing program to maintain specialty certification.”

In a statement, ABIM President and CEO Richard J. Baron said it was clear that aspects of the program were not meeting physicians’ needs.

“We got it wrong and sincerely apologize,” Dr. Baron said in the statement. “We are sorry. ABIM is changing the way it does its work so that it is guided by, and integrated fully with, the medical community that created it. The goal is to co-create a MOC program that reflects the medical community’s shared values about the practice of medicine today and provides a professionally created and publicly recognizable framework for keeping up in our discipline.”

AGA is uniquely positioned to contribute to ABIM’s collaborative process with a newly convened task force to identify the ideal pathway to recertification and assessment of physician competency.

As part of the newly announced changes, ABIM will make its internal medicine exam more reflective of physician practice, with changes to be incorporated in fall 2015, according to the announcement. The decision to suspend the practice assessment, patient voice, and patient safety requirements means internists who have not completed activities in these areas will not have their certification status changed. Diplomates who are currently uncertified but who have satisfied all requirements for MOC except for the practice assessment requirement will be issued a new certificate this year. Within the next 6 months, ABIM will also change the language used to publicly report a diplomate’s MOC status on its website from “meeting MOC requirements” to “participating in MOC.”

Dr. Allen, who is clinical chief of digestive diseases at Yale University in New Haven, Conn., noted that suspension of the MOC’s Practice Improvement, Patient Voice and Practice Assessment component will reduce the most onerous part of the process and give physicians time to rework the portion or eliminate it.

“We still will need to work with ABIM to make the recertification test reflective of our practices and style of knowledge acquisition,” he said. “I believe we all can pause long enough to reshape MOC.”

By the end of 2015, ABIM said it will ensure new and more flexible ways for internists to demonstrate self-assessment of medical knowledge by recognizing most forms of Accreditation Council for Continuing Medical Education–approved continuing medical education. An online FAQ provides more information on the changes.

ABIM initially revamped its certification policies beginning in January 2014, shortening the time physicians had to earn MOC points and publishing online whether doctors were meeting requirements. The actions meant that every 2 years physicians certified by ABIM had to earn at least some points by completing some of the educational activities approved for MOC credit, and at the 5-year mark, earn 100 points. Previously, physicians were given 10 years to earn 100 points. Physicians were also listed publicly as either “certified, meeting maintenance of certification requirements” or “certified, not meeting MOC requirements.”

The changes were met with almost immediate backlash. Doctors expressed frustration that the requirements were burdensome, expensive, and irrelevant. By January 2015, a Web-based petition against the program garnered more than 19,000 signatures and has drawn thousands of comments in protest of the new requirements. A second petition had nearly 6,000 signatures with doctors taking a “pledge of noncompliance” with the requirements.

A January perspective piece in the New England Journal of Medicine expressed that the MOC program is essentially a money-generating activity for the ABIM and that the organization has lost contact with the realities of day-to-day clinical practice.

In an interview, Dr. Baron said such feedback drove ABIM to make the changes. He acknowledged that it would take time to build back trust within the community.

“Part of why we’re taking the steps we’re taking is that it’s critical to have trust with the community,” Dr. Baron said. “Part of how you do that is if you got something wrong, you apologize for it, you acknowledge you got it wrong, and you commit to making changes and try to get it right.”

Dr. Wayne J. Riley, ACP president-elect and a clinical professor of medicine at Vanderbilt University in Nashville, Tenn., said the ABIM’s program changes rightly respond to the high level of dissatisfaction and angst with MOC strongly voiced by internists of all stripes.

“The reality of modern medical practice in this dynamic era of health care change really argues for an improved process that better reflects how we practice in various practice settings and which does not threaten livelihoods and professional privileges,” he said in an interview. “With these impending changes, it is my hope that now all ABIM diplomates can embrace with gusto the continuous improvement ideal reflected in certification in a more value-added, time-efficient, and more educationally rich manner.”

Dr. Baron noted that ABIM will be working with medical societies and directly with diplomates to seek input regarding the MOC program through meetings, webinars, forums, online communications channels, surveys, and other mediums.

“I fervently hope that we will come together as a community to figure out how to build a program that embodies and actualizes the values that internists have,” he said in the interview. “We’re going to need a lot of community participation to make that work and I hope that people will step up.”

[email protected]


On Twitter @legal_med

In a frank announcement, the American Board of Internal Medicine has apologized to doctors for a Maintenance of Certification program that “clearly got it wrong,” and pledged to make the program more consistent with internists’ practice and values.

Among the immediate changes: updates to its internal medicine exam; suspension of the practice assessment, patient voice, and patient safety requirements for at least 2 years; and MOC enrollment fees set at or below the 2014 levels through at least 2017.

Dr. John I. Allen, AGAF, president of the American Gastroenterological Association, said the move by ABIM to implement the changes shows the organization heard the tremendous negative feedback by physicians about the burdensome process and rightly responded.

“We all believe that lifelong learning is important and that retesting in some form is needed throughout the career of a physician,” Dr. Allen said in an interview. “The process of MOC and the reporting burdens on physicians, however, was much too high and with little evidence for positive effect. I applaud the ABIM for admitting their mistake and apologizing. We, at the AGA, look forward to helping shape a meaningful and ongoing program to maintain specialty certification.”

In a statement, ABIM President and CEO Richard J. Baron said it was clear that aspects of the program were not meeting physicians’ needs.

“We got it wrong and sincerely apologize,” Dr. Baron said in the statement. “We are sorry. ABIM is changing the way it does its work so that it is guided by, and integrated fully with, the medical community that created it. The goal is to co-create a MOC program that reflects the medical community’s shared values about the practice of medicine today and provides a professionally created and publicly recognizable framework for keeping up in our discipline.”

AGA is uniquely positioned to contribute to ABIM’s collaborative process with a newly convened task force to identify the ideal pathway to recertification and assessment of physician competency.

As part of the newly announced changes, ABIM will make its internal medicine exam more reflective of physician practice, with changes to be incorporated in fall 2015, according to the announcement. The decision to suspend the practice assessment, patient voice, and patient safety requirements means internists who have not completed activities in these areas will not have their certification status changed. Diplomates who are currently uncertified but who have satisfied all requirements for MOC except for the practice assessment requirement will be issued a new certificate this year. Within the next 6 months, ABIM will also change the language used to publicly report a diplomate’s MOC status on its website from “meeting MOC requirements” to “participating in MOC.”

Dr. Allen, who is clinical chief of digestive diseases at Yale University in New Haven, Conn., noted that suspension of the MOC’s Practice Improvement, Patient Voice and Practice Assessment component will reduce the most onerous part of the process and give physicians time to rework the portion or eliminate it.

“We still will need to work with ABIM to make the recertification test reflective of our practices and style of knowledge acquisition,” he said. “I believe we all can pause long enough to reshape MOC.”

By the end of 2015, ABIM said it will ensure new and more flexible ways for internists to demonstrate self-assessment of medical knowledge by recognizing most forms of Accreditation Council for Continuing Medical Education–approved continuing medical education. An online FAQ provides more information on the changes.

ABIM initially revamped its certification policies beginning in January 2014, shortening the time physicians had to earn MOC points and publishing online whether doctors were meeting requirements. The actions meant that every 2 years physicians certified by ABIM had to earn at least some points by completing some of the educational activities approved for MOC credit, and at the 5-year mark, earn 100 points. Previously, physicians were given 10 years to earn 100 points. Physicians were also listed publicly as either “certified, meeting maintenance of certification requirements” or “certified, not meeting MOC requirements.”

The changes were met with almost immediate backlash. Doctors expressed frustration that the requirements were burdensome, expensive, and irrelevant. By January 2015, a Web-based petition against the program garnered more than 19,000 signatures and has drawn thousands of comments in protest of the new requirements. A second petition had nearly 6,000 signatures with doctors taking a “pledge of noncompliance” with the requirements.

A January perspective piece in the New England Journal of Medicine expressed that the MOC program is essentially a money-generating activity for the ABIM and that the organization has lost contact with the realities of day-to-day clinical practice.

In an interview, Dr. Baron said such feedback drove ABIM to make the changes. He acknowledged that it would take time to build back trust within the community.

“Part of why we’re taking the steps we’re taking is that it’s critical to have trust with the community,” Dr. Baron said. “Part of how you do that is if you got something wrong, you apologize for it, you acknowledge you got it wrong, and you commit to making changes and try to get it right.”

Dr. Wayne J. Riley, ACP president-elect and a clinical professor of medicine at Vanderbilt University in Nashville, Tenn., said the ABIM’s program changes rightly respond to the high level of dissatisfaction and angst with MOC strongly voiced by internists of all stripes.

“The reality of modern medical practice in this dynamic era of health care change really argues for an improved process that better reflects how we practice in various practice settings and which does not threaten livelihoods and professional privileges,” he said in an interview. “With these impending changes, it is my hope that now all ABIM diplomates can embrace with gusto the continuous improvement ideal reflected in certification in a more value-added, time-efficient, and more educationally rich manner.”

Dr. Baron noted that ABIM will be working with medical societies and directly with diplomates to seek input regarding the MOC program through meetings, webinars, forums, online communications channels, surveys, and other mediums.

“I fervently hope that we will come together as a community to figure out how to build a program that embodies and actualizes the values that internists have,” he said in the interview. “We’re going to need a lot of community participation to make that work and I hope that people will step up.”

[email protected]


On Twitter @legal_med

Ready or not, physicians will soon have to answer to auditors about their admissions decisions involving Medicare patients, and hospitals may face payment denials if the determinations are questioned.

After ongoing delays, enforcement of the Centers for Medicare & Medicaid Service’s two-midnight policy goes into effect April 1. While most hospitals and doctors have known about the rule for some time, they are probably not fully prepared for the burden and potential consequences of the policy, said Dr. Bradley Flansbaum, a hospitalist at Lenox Hill Hospital in New York and a member of the Society of Hospital Medicine’s public policy committee.

“It’s not like the two-midnight rule is being unveiled or it’s something new, it’s the promise of the actual penalties and chart reviews going into play,” he said in an interview. “Not that most hospitals haven’t been taking the rule seriously, but once they know the audits can begin and hospitals could lose money, everything that’s been talked about, actually has to be done. The theoretical becomes reality.”

The two-midnight policy officially went into effect on Oct. 1, 2013, but enforcement through postpayment claims audits by Recovery Audit Contractors (RACs) was delayed until March 31, 2015. Under the controversial rule, the decision to admit a Medicare patient as an inpatient comes down to two factors: whether the condition meets medical necessity requiring a patient to be in a hospital setting and the expectation that their time in the hospital will surpass two midnights. Doctors and hospitals have criticized the rule as undermining doctors’ medical judgment, generating inadequate reimbursement to hospitals for medically necessary care, and creating confusion for Medicare patients. Critics say the rule will mean needless administrative hassles for health providers and penalization of hospitals for innovations to reduce length of stay.

During the most recent delay, CMS planned to conduct prepayment reviews on samples of short-stay inpatient claims to determine hospital compliance with the new policy. The agency said it would evaluate the results of the “probe and educate” process and issue additional guidance to ensure consistency of the policy’s application.

However, some physicians have been disappointed by the so-called educational phase. Dr. Ann M. Sheehy, head of the hospital medicine division at the University of Wisconsin Hospital in Madison, said her hospital did not receive clarification on several claims that were questioned by CMS. Of nine recent inpatient cases at the University of Wisconsin, CMS said three inpatient cases did not support the need for two midnights of care, Dr. Sheehy noted. The hospital challenged the determinations and requested a meeting for more information, but did not receive further feedback. The claim denials were later overturned without explanation, she said.

“It is frustrating,” Dr. Sheehy said in an interview. “We still feel like we’re kind of in the dark as far as the application of the rule. We’re doing the best we can, but we still don’t know how it’s going to be enforced by the RACs come April 1.”

On the other hand, Dr. Sheehy noted that the hospital has seen a reduction in long observation stays under the two-midnight rule, which is positive.

“However, we are concerned, based on our probe and educate results, that if the RACs start to question the two-midnight mark, we will see these long observation stays return because of RAC pressure and denials of these inpatient claims,” she said.

At this article’s deadline, CMS had not responded to a request for comment.

Supporters of the two-midnight rule say the policy clarifies the prior confusion over when hospital patients should be designated inpatients. The rule makes physicians’ decisions easier, not more difficult, said Dr. Michael A. Ross, an emergency physician and medical director of observation medicine for Emory University Hospital’s emergency medicine department in Atlanta. He notes that his hospital is well prepared for the rule’s enforcement and has been managing patients consistent with the policy for more than a year.

“Previously, the whole definition of an inpatient was complicated, especially for emergency physicians,” Dr. Ross said in an interview. “As a friend of mine said, ‘Previously to know who an inpatient was you needed a book, now you just need one line, which is whether a patient is expected to cross two midnights.’ What could be simpler than that?”

Dr. Ross adds that myths about the two-midnight rule and its effect continue to spread through mainstream media, such as that observation outpatient status means higher out-of-pocket costs for Medicare patients than inpatient status. He pointed to a 2013 study by the U.S. Health & Human Service’s Office of Inspector General that found Medicare patients paid nearly two times more out-of-pocket expenses as inpatients than as observation patients*.

“The best thing a physician can do to control a patient’s outpatient observation costs is to manage them in a protocol-driven observation unit,” said Dr. Ross, former chair of the CMS Advisory Panel on Ambulatory Payment Classification Group’s Visits and Observation Subcommittee. “These units have consistently been shown to decrease health care costs safely, which impacts a patient’s out of pocket costs.”

While the two-midnight rule is fast approaching, Dr. Flansbaum believes there is still time for CMS to change or delay the policy. He does not foresee the rule going into effect April 1.

“It’s still possible the rules will be changed or CMS will push (the enforcement date) to a later point in the calendar,” he said. “There’s too many loose ends. All the complications and difficulties that forced [CMS] to put the rule into freeze way back when – they’re not solved. How can they flip the switch?”

In a proposed rule issued in 2014, CMS raised the possibility of creating a new payment method under Medicare for short, but intensive inpatient hospital stays. But a final rule governing payment policies for general acute care hospitals and long-term care hospitals for fiscal year 2015 did not yield any new policies. The Association of American Medical Colleges has called on CMS to issue supplemental guidance that would allow hospitals to bill certain short stays as inpatient, under Medicare Part A, when the physician determines that the stay is medically necessary. A lawsuit by the American Hospital Association against CMS over the policy continues. In April 2014, the AHA filed two federal lawsuits challenging the rule and its reduction in payments to hospitals. At this article’s deadline, the U.S. District Court for the District of Columbia has not decided whether to grant the AHA’s requests for oral argument.

“With regard to the two-midnight rule, we would like to see the partial enforcement delay extended,” AHA spokeswoman Carly Moore said in an interview. “We are urging both CMS and Congress to extend. Hospitals are doing their best to comply with the two-midnight policy, but CMS has not provided any update on its probe and educate audits.”

Meanwhile, draft legislation that aims to reform Medicare’s hospital admissions policies, including the two-midnight rule, is in the works. The Hospitals Improvements for Payment (HIP) Act addresses short inpatient stays, outpatient observation stays, auditing, and appeals. The draft legislation offers reforms for a new hospital prospective payment system, a new per diem rate for short lengths of stay, repeal of the two-midnights payment reduction, and improvements to the RAC program. The House Ways and Means Committee is currently accepting public comment on the draft HIP Act. Doctors expect the bill to be introduced by March. Several other bills addressing short inpatient stays and the recovery audit process stalled during the last congressional session.

The Medicare Payment Advisory Commission (MedPAC) is also considering alternative policy options to improve short inpatient stays. The group has emphasized the need to balance oversight of proper billing with administrative burden on Medicare providers. MedPAC’s proposed options include creating new Medicare severity diagnosis-related groups (MS-DRGs) for short-stay cases, targeting RAC reviews to those hospitals with the highest rate of short-stay admissions, and revising the RAC contracts to take into consideration the percentage of denials that are overturned on appeal.

But Dr. Flansbaum stressed that the issues surrounding the two-midnight rule and admissions designations are not easy problems to solve.

“While a lot of the solutions sound good at the macro level, [they] are still difficult to implement at the micro level,” he said.

[email protected]

On Twitter @legal_med

*Correction, 3/3/2015: An earlier version of this article misstated the findings of the study by the U.S. Health & Human Service’s Office of Inspector General.

Ready or not, physicians will soon have to answer to auditors about their admissions decisions involving Medicare patients, and hospitals may face payment denials if the determinations are questioned.

After ongoing delays, enforcement of the Centers for Medicare & Medicaid Service’s two-midnight policy goes into effect April 1. While most hospitals and doctors have known about the rule for some time, they are probably not fully prepared for the burden and potential consequences of the policy, said Dr. Bradley Flansbaum, a hospitalist at Lenox Hill Hospital in New York and a member of the Society of Hospital Medicine’s public policy committee.

“It’s not like the two-midnight rule is being unveiled or it’s something new, it’s the promise of the actual penalties and chart reviews going into play,” he said in an interview. “Not that most hospitals haven’t been taking the rule seriously, but once they know the audits can begin and hospitals could lose money, everything that’s been talked about, actually has to be done. The theoretical becomes reality.”

The two-midnight policy officially went into effect on Oct. 1, 2013, but enforcement through postpayment claims audits by Recovery Audit Contractors (RACs) was delayed until March 31, 2015. Under the controversial rule, the decision to admit a Medicare patient as an inpatient comes down to two factors: whether the condition meets medical necessity requiring a patient to be in a hospital setting and the expectation that their time in the hospital will surpass two midnights. Doctors and hospitals have criticized the rule as undermining doctors’ medical judgment, generating inadequate reimbursement to hospitals for medically necessary care, and creating confusion for Medicare patients. Critics say the rule will mean needless administrative hassles for health providers and penalization of hospitals for innovations to reduce length of stay.

During the most recent delay, CMS planned to conduct prepayment reviews on samples of short-stay inpatient claims to determine hospital compliance with the new policy. The agency said it would evaluate the results of the “probe and educate” process and issue additional guidance to ensure consistency of the policy’s application.

However, some physicians have been disappointed by the so-called educational phase. Dr. Ann M. Sheehy, head of the hospital medicine division at the University of Wisconsin Hospital in Madison, said her hospital did not receive clarification on several claims that were questioned by CMS. Of nine recent inpatient cases at the University of Wisconsin, CMS said three inpatient cases did not support the need for two midnights of care, Dr. Sheehy noted. The hospital challenged the determinations and requested a meeting for more information, but did not receive further feedback. The claim denials were later overturned without explanation, she said.

“It is frustrating,” Dr. Sheehy said in an interview. “We still feel like we’re kind of in the dark as far as the application of the rule. We’re doing the best we can, but we still don’t know how it’s going to be enforced by the RACs come April 1.”

On the other hand, Dr. Sheehy noted that the hospital has seen a reduction in long observation stays under the two-midnight rule, which is positive.

“However, we are concerned, based on our probe and educate results, that if the RACs start to question the two-midnight mark, we will see these long observation stays return because of RAC pressure and denials of these inpatient claims,” she said.

At this article’s deadline, CMS had not responded to a request for comment.

Supporters of the two-midnight rule say the policy clarifies the prior confusion over when hospital patients should be designated inpatients. The rule makes physicians’ decisions easier, not more difficult, said Dr. Michael A. Ross, an emergency physician and medical director of observation medicine for Emory University Hospital’s emergency medicine department in Atlanta. He notes that his hospital is well prepared for the rule’s enforcement and has been managing patients consistent with the policy for more than a year.

“Previously, the whole definition of an inpatient was complicated, especially for emergency physicians,” Dr. Ross said in an interview. “As a friend of mine said, ‘Previously to know who an inpatient was you needed a book, now you just need one line, which is whether a patient is expected to cross two midnights.’ What could be simpler than that?”

Dr. Ross adds that myths about the two-midnight rule and its effect continue to spread through mainstream media, such as that observation outpatient status means higher out-of-pocket costs for Medicare patients than inpatient status. He pointed to a 2013 study by the U.S. Health & Human Service’s Office of Inspector General that found Medicare patients paid nearly two times more out-of-pocket expenses as inpatients than as observation patients*.

“The best thing a physician can do to control a patient’s outpatient observation costs is to manage them in a protocol-driven observation unit,” said Dr. Ross, former chair of the CMS Advisory Panel on Ambulatory Payment Classification Group’s Visits and Observation Subcommittee. “These units have consistently been shown to decrease health care costs safely, which impacts a patient’s out of pocket costs.”

While the two-midnight rule is fast approaching, Dr. Flansbaum believes there is still time for CMS to change or delay the policy. He does not foresee the rule going into effect April 1.

“It’s still possible the rules will be changed or CMS will push (the enforcement date) to a later point in the calendar,” he said. “There’s too many loose ends. All the complications and difficulties that forced [CMS] to put the rule into freeze way back when – they’re not solved. How can they flip the switch?”

In a proposed rule issued in 2014, CMS raised the possibility of creating a new payment method under Medicare for short, but intensive inpatient hospital stays. But a final rule governing payment policies for general acute care hospitals and long-term care hospitals for fiscal year 2015 did not yield any new policies. The Association of American Medical Colleges has called on CMS to issue supplemental guidance that would allow hospitals to bill certain short stays as inpatient, under Medicare Part A, when the physician determines that the stay is medically necessary. A lawsuit by the American Hospital Association against CMS over the policy continues. In April 2014, the AHA filed two federal lawsuits challenging the rule and its reduction in payments to hospitals. At this article’s deadline, the U.S. District Court for the District of Columbia has not decided whether to grant the AHA’s requests for oral argument.

“With regard to the two-midnight rule, we would like to see the partial enforcement delay extended,” AHA spokeswoman Carly Moore said in an interview. “We are urging both CMS and Congress to extend. Hospitals are doing their best to comply with the two-midnight policy, but CMS has not provided any update on its probe and educate audits.”

Meanwhile, draft legislation that aims to reform Medicare’s hospital admissions policies, including the two-midnight rule, is in the works. The Hospitals Improvements for Payment (HIP) Act addresses short inpatient stays, outpatient observation stays, auditing, and appeals. The draft legislation offers reforms for a new hospital prospective payment system, a new per diem rate for short lengths of stay, repeal of the two-midnights payment reduction, and improvements to the RAC program. The House Ways and Means Committee is currently accepting public comment on the draft HIP Act. Doctors expect the bill to be introduced by March. Several other bills addressing short inpatient stays and the recovery audit process stalled during the last congressional session.

The Medicare Payment Advisory Commission (MedPAC) is also considering alternative policy options to improve short inpatient stays. The group has emphasized the need to balance oversight of proper billing with administrative burden on Medicare providers. MedPAC’s proposed options include creating new Medicare severity diagnosis-related groups (MS-DRGs) for short-stay cases, targeting RAC reviews to those hospitals with the highest rate of short-stay admissions, and revising the RAC contracts to take into consideration the percentage of denials that are overturned on appeal.

But Dr. Flansbaum stressed that the issues surrounding the two-midnight rule and admissions designations are not easy problems to solve.

“While a lot of the solutions sound good at the macro level, [they] are still difficult to implement at the micro level,” he said.

[email protected]

On Twitter @legal_med

*Correction, 3/3/2015: An earlier version of this article misstated the findings of the study by the U.S. Health & Human Service’s Office of Inspector General.

Ready or not, physicians will soon have to answer to auditors about their admissions decisions involving Medicare patients, and hospitals may face payment denials if the determinations are questioned.

After ongoing delays, enforcement of the Centers for Medicare & Medicaid Service’s two-midnight policy goes into effect April 1. While most hospitals and doctors have known about the rule for some time, they are probably not fully prepared for the burden and potential consequences of the policy, said Dr. Bradley Flansbaum, a hospitalist at Lenox Hill Hospital in New York and a member of the Society of Hospital Medicine’s public policy committee.

“It’s not like the two-midnight rule is being unveiled or it’s something new, it’s the promise of the actual penalties and chart reviews going into play,” he said in an interview. “Not that most hospitals haven’t been taking the rule seriously, but once they know the audits can begin and hospitals could lose money, everything that’s been talked about, actually has to be done. The theoretical becomes reality.”

The two-midnight policy officially went into effect on Oct. 1, 2013, but enforcement through postpayment claims audits by Recovery Audit Contractors (RACs) was delayed until March 31, 2015. Under the controversial rule, the decision to admit a Medicare patient as an inpatient comes down to two factors: whether the condition meets medical necessity requiring a patient to be in a hospital setting and the expectation that their time in the hospital will surpass two midnights. Doctors and hospitals have criticized the rule as undermining doctors’ medical judgment, generating inadequate reimbursement to hospitals for medically necessary care, and creating confusion for Medicare patients. Critics say the rule will mean needless administrative hassles for health providers and penalization of hospitals for innovations to reduce length of stay.

During the most recent delay, CMS planned to conduct prepayment reviews on samples of short-stay inpatient claims to determine hospital compliance with the new policy. The agency said it would evaluate the results of the “probe and educate” process and issue additional guidance to ensure consistency of the policy’s application.

However, some physicians have been disappointed by the so-called educational phase. Dr. Ann M. Sheehy, head of the hospital medicine division at the University of Wisconsin Hospital in Madison, said her hospital did not receive clarification on several claims that were questioned by CMS. Of nine recent inpatient cases at the University of Wisconsin, CMS said three inpatient cases did not support the need for two midnights of care, Dr. Sheehy noted. The hospital challenged the determinations and requested a meeting for more information, but did not receive further feedback. The claim denials were later overturned without explanation, she said.

“It is frustrating,” Dr. Sheehy said in an interview. “We still feel like we’re kind of in the dark as far as the application of the rule. We’re doing the best we can, but we still don’t know how it’s going to be enforced by the RACs come April 1.”

On the other hand, Dr. Sheehy noted that the hospital has seen a reduction in long observation stays under the two-midnight rule, which is positive.

“However, we are concerned, based on our probe and educate results, that if the RACs start to question the two-midnight mark, we will see these long observation stays return because of RAC pressure and denials of these inpatient claims,” she said.

At this article’s deadline, CMS had not responded to a request for comment.

Supporters of the two-midnight rule say the policy clarifies the prior confusion over when hospital patients should be designated inpatients. The rule makes physicians’ decisions easier, not more difficult, said Dr. Michael A. Ross, an emergency physician and medical director of observation medicine for Emory University Hospital’s emergency medicine department in Atlanta. He notes that his hospital is well prepared for the rule’s enforcement and has been managing patients consistent with the policy for more than a year.

“Previously, the whole definition of an inpatient was complicated, especially for emergency physicians,” Dr. Ross said in an interview. “As a friend of mine said, ‘Previously to know who an inpatient was you needed a book, now you just need one line, which is whether a patient is expected to cross two midnights.’ What could be simpler than that?”

Dr. Ross adds that myths about the two-midnight rule and its effect continue to spread through mainstream media, such as that observation outpatient status means higher out-of-pocket costs for Medicare patients than inpatient status. He pointed to a 2013 study by the U.S. Health & Human Service’s Office of Inspector General that found Medicare patients paid nearly two times more out-of-pocket expenses as inpatients than as observation patients*.

“The best thing a physician can do to control a patient’s outpatient observation costs is to manage them in a protocol-driven observation unit,” said Dr. Ross, former chair of the CMS Advisory Panel on Ambulatory Payment Classification Group’s Visits and Observation Subcommittee. “These units have consistently been shown to decrease health care costs safely, which impacts a patient’s out of pocket costs.”

While the two-midnight rule is fast approaching, Dr. Flansbaum believes there is still time for CMS to change or delay the policy. He does not foresee the rule going into effect April 1.

“It’s still possible the rules will be changed or CMS will push (the enforcement date) to a later point in the calendar,” he said. “There’s too many loose ends. All the complications and difficulties that forced [CMS] to put the rule into freeze way back when – they’re not solved. How can they flip the switch?”

In a proposed rule issued in 2014, CMS raised the possibility of creating a new payment method under Medicare for short, but intensive inpatient hospital stays. But a final rule governing payment policies for general acute care hospitals and long-term care hospitals for fiscal year 2015 did not yield any new policies. The Association of American Medical Colleges has called on CMS to issue supplemental guidance that would allow hospitals to bill certain short stays as inpatient, under Medicare Part A, when the physician determines that the stay is medically necessary. A lawsuit by the American Hospital Association against CMS over the policy continues. In April 2014, the AHA filed two federal lawsuits challenging the rule and its reduction in payments to hospitals. At this article’s deadline, the U.S. District Court for the District of Columbia has not decided whether to grant the AHA’s requests for oral argument.

“With regard to the two-midnight rule, we would like to see the partial enforcement delay extended,” AHA spokeswoman Carly Moore said in an interview. “We are urging both CMS and Congress to extend. Hospitals are doing their best to comply with the two-midnight policy, but CMS has not provided any update on its probe and educate audits.”

Meanwhile, draft legislation that aims to reform Medicare’s hospital admissions policies, including the two-midnight rule, is in the works. The Hospitals Improvements for Payment (HIP) Act addresses short inpatient stays, outpatient observation stays, auditing, and appeals. The draft legislation offers reforms for a new hospital prospective payment system, a new per diem rate for short lengths of stay, repeal of the two-midnights payment reduction, and improvements to the RAC program. The House Ways and Means Committee is currently accepting public comment on the draft HIP Act. Doctors expect the bill to be introduced by March. Several other bills addressing short inpatient stays and the recovery audit process stalled during the last congressional session.

The Medicare Payment Advisory Commission (MedPAC) is also considering alternative policy options to improve short inpatient stays. The group has emphasized the need to balance oversight of proper billing with administrative burden on Medicare providers. MedPAC’s proposed options include creating new Medicare severity diagnosis-related groups (MS-DRGs) for short-stay cases, targeting RAC reviews to those hospitals with the highest rate of short-stay admissions, and revising the RAC contracts to take into consideration the percentage of denials that are overturned on appeal.

But Dr. Flansbaum stressed that the issues surrounding the two-midnight rule and admissions designations are not easy problems to solve.

“While a lot of the solutions sound good at the macro level, [they] are still difficult to implement at the micro level,” he said.

[email protected]

On Twitter @legal_med

*Correction, 3/3/2015: An earlier version of this article misstated the findings of the study by the U.S. Health & Human Service’s Office of Inspector General.

Physicians will have to wait another year to learn how far back the Centers for Medicare & Medicaid Services will search to collect overpayments they may have received from the Medicare program.

CMS has delayed the publishing of its final rule on procedures and policies for reporting and returning Medicare overpayments for at least another year, according to a notice published Feb. 13 in the Federal Register. The complexity of the rule and scope of comments warrants the extension of the timeline for publication, according to the notice.

thinkstockphotos.com

“Based on both public comments received and internal stakeholder feedback, we have determined that there are significant policy and operational issues that need to be resolved in order to address all of the issues raised by comments to the proposed rule and to ensure appropriate coordination with other government agencies,” CMS officials wrote.

The proposed rule, published in 2012, recommended that overpayments be reported and returned if a provider identifies the overpayment within 10 years of the date the payment was received. The American Hospital Association and others criticized the proposal, arguing the 10-year time frame was unreasonable and would be burdensome for providers. Under the Affordable Care Act, doctors already must return overpayments within 60 days of identification.

In the notice, CMS officials reminded physicians and health care providers that even with the final rule’s delay, they are still subject to False Claims Act liability for failure to report and return overpayments under current regulations. The notice extends the publication time of the final rule until Feb. 16, 2016.

[email protected]

On Twitter @legal_med

Physicians will have to wait another year to learn how far back the Centers for Medicare & Medicaid Services will search to collect overpayments they may have received from the Medicare program.

CMS has delayed the publishing of its final rule on procedures and policies for reporting and returning Medicare overpayments for at least another year, according to a notice published Feb. 13 in the Federal Register. The complexity of the rule and scope of comments warrants the extension of the timeline for publication, according to the notice.

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“Based on both public comments received and internal stakeholder feedback, we have determined that there are significant policy and operational issues that need to be resolved in order to address all of the issues raised by comments to the proposed rule and to ensure appropriate coordination with other government agencies,” CMS officials wrote.

The proposed rule, published in 2012, recommended that overpayments be reported and returned if a provider identifies the overpayment within 10 years of the date the payment was received. The American Hospital Association and others criticized the proposal, arguing the 10-year time frame was unreasonable and would be burdensome for providers. Under the Affordable Care Act, doctors already must return overpayments within 60 days of identification.

In the notice, CMS officials reminded physicians and health care providers that even with the final rule’s delay, they are still subject to False Claims Act liability for failure to report and return overpayments under current regulations. The notice extends the publication time of the final rule until Feb. 16, 2016.

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Physicians will have to wait another year to learn how far back the Centers for Medicare & Medicaid Services will search to collect overpayments they may have received from the Medicare program.

CMS has delayed the publishing of its final rule on procedures and policies for reporting and returning Medicare overpayments for at least another year, according to a notice published Feb. 13 in the Federal Register. The complexity of the rule and scope of comments warrants the extension of the timeline for publication, according to the notice.

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“Based on both public comments received and internal stakeholder feedback, we have determined that there are significant policy and operational issues that need to be resolved in order to address all of the issues raised by comments to the proposed rule and to ensure appropriate coordination with other government agencies,” CMS officials wrote.

The proposed rule, published in 2012, recommended that overpayments be reported and returned if a provider identifies the overpayment within 10 years of the date the payment was received. The American Hospital Association and others criticized the proposal, arguing the 10-year time frame was unreasonable and would be burdensome for providers. Under the Affordable Care Act, doctors already must return overpayments within 60 days of identification.

In the notice, CMS officials reminded physicians and health care providers that even with the final rule’s delay, they are still subject to False Claims Act liability for failure to report and return overpayments under current regulations. The notice extends the publication time of the final rule until Feb. 16, 2016.

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On Twitter @legal_med

A group of physicians and patients are suing the state of California over a law that they say exposes doctors to criminal prosecution for providing terminally ill patients aid in dying.

Three doctors and three cancer patients – two of whom are also doctors – filed suit against the state Feb. 11, calling on California to clarify a portion of its assisted-suicide statute. The law makes it a felony to deliberately help a person commit suicide.

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In their suit, the plaintiffs claim physicians who write prescriptions for mentally competent, terminally ill patients should not face legal penalties. The choice for a peaceful death by a dying patient is not suicide, nor is a physician assisting such a patient in “committing suicide,” the complaint argues. Additionally, the physicians assert that patients facing the end of their lives have a right under the California State Constitution to make autonomous decisions about their bodies and how they will die.

In a February statement, plaintiff Dr. Robert Brody, professor of medicine at the University of California, San Francisco, said competent, terminally ill adults have the right to a peaceful death in a controlled and clinically sound way.

“The current murky legal landscape means that physicians are placed at risk and must choose between potentially skirting the law to respect their patients’ choices or abandoning them to bad information, uncertainty, or violence,” he said in the statement.

The lawsuit comes after the high-profile death of terminally ill patient Brittany Maynard, who moved from California to Oregon to take advantage of that state’s Death with Dignity law.

The Disability Rights Legal Center, which is representing the plaintiffs in the California case, also recently filed suit in New York over the same issue. In that case, several physicians and patients are asking New York judges to clarify the ability of mentally competent, terminally ill New York patients to obtain aid in dying from their physician.

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On Twitter @legal_med

A group of physicians and patients are suing the state of California over a law that they say exposes doctors to criminal prosecution for providing terminally ill patients aid in dying.

Three doctors and three cancer patients – two of whom are also doctors – filed suit against the state Feb. 11, calling on California to clarify a portion of its assisted-suicide statute. The law makes it a felony to deliberately help a person commit suicide.

©Comstock/thinkstockphotos.com

In their suit, the plaintiffs claim physicians who write prescriptions for mentally competent, terminally ill patients should not face legal penalties. The choice for a peaceful death by a dying patient is not suicide, nor is a physician assisting such a patient in “committing suicide,” the complaint argues. Additionally, the physicians assert that patients facing the end of their lives have a right under the California State Constitution to make autonomous decisions about their bodies and how they will die.

In a February statement, plaintiff Dr. Robert Brody, professor of medicine at the University of California, San Francisco, said competent, terminally ill adults have the right to a peaceful death in a controlled and clinically sound way.

“The current murky legal landscape means that physicians are placed at risk and must choose between potentially skirting the law to respect their patients’ choices or abandoning them to bad information, uncertainty, or violence,” he said in the statement.

The lawsuit comes after the high-profile death of terminally ill patient Brittany Maynard, who moved from California to Oregon to take advantage of that state’s Death with Dignity law.

The Disability Rights Legal Center, which is representing the plaintiffs in the California case, also recently filed suit in New York over the same issue. In that case, several physicians and patients are asking New York judges to clarify the ability of mentally competent, terminally ill New York patients to obtain aid in dying from their physician.

[email protected]

On Twitter @legal_med

A group of physicians and patients are suing the state of California over a law that they say exposes doctors to criminal prosecution for providing terminally ill patients aid in dying.

Three doctors and three cancer patients – two of whom are also doctors – filed suit against the state Feb. 11, calling on California to clarify a portion of its assisted-suicide statute. The law makes it a felony to deliberately help a person commit suicide.

©Comstock/thinkstockphotos.com

In their suit, the plaintiffs claim physicians who write prescriptions for mentally competent, terminally ill patients should not face legal penalties. The choice for a peaceful death by a dying patient is not suicide, nor is a physician assisting such a patient in “committing suicide,” the complaint argues. Additionally, the physicians assert that patients facing the end of their lives have a right under the California State Constitution to make autonomous decisions about their bodies and how they will die.

In a February statement, plaintiff Dr. Robert Brody, professor of medicine at the University of California, San Francisco, said competent, terminally ill adults have the right to a peaceful death in a controlled and clinically sound way.

“The current murky legal landscape means that physicians are placed at risk and must choose between potentially skirting the law to respect their patients’ choices or abandoning them to bad information, uncertainty, or violence,” he said in the statement.

The lawsuit comes after the high-profile death of terminally ill patient Brittany Maynard, who moved from California to Oregon to take advantage of that state’s Death with Dignity law.

The Disability Rights Legal Center, which is representing the plaintiffs in the California case, also recently filed suit in New York over the same issue. In that case, several physicians and patients are asking New York judges to clarify the ability of mentally competent, terminally ill New York patients to obtain aid in dying from their physician.

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On Twitter @legal_med

Physicians hope a coding change for cryopreservation will drive more insurers to cover the procedure.

Starting in 2015, cryopreservation of mature oocytes can be reported using a Category I CPT code, rather than a Category III code, which is associated with experimental procedures.

The shift will hopefully lead to the procedure becoming more accessible to patients by influencing insurers to pay for the treatment, said Dr. George Hill, a Nashville reproductive endocrinologist and former chair of the American Society of Reproductive Medicine’s (ASRM) coding committee.

The new CPT code is 89337 for cryopreservation of mature oocytes. It was previously reported with code 0059T, which has been deleted. Details about the coding change were announced by ASRM in late January.

“This is a real advantage to physicians that this has been recognized as a mainstream procedure,” said Dr. Hill, who is ASRM’s current treasurer. “When you’ve got a Category I code, it takes away a little of the stigma of being experimental.”

The American College of Obstetricians and Gynecologists (ACOG) said in a January 2014 opinion that cryopreservation of oocytes should no longer be considered experimental for women facing infertility as a result of chemotherapy or other gonadotoxic therapies.

The ACOG guidelines endorsed a joint 2013 document from ASRM and the Society for Assisted Reproductive Technology that also advocated removing the experimental label. The decisions were fueled by improvements in mature oocyte cryopreservation and the increasing survival rates of cryopreserved mature egg cells, according to the opinions, but both policy statements stopped short of recommending oocyte crypreservation solely for delaying childbearing in healthy women.

The popularity of cryopreservation has exploded in recent years, with more women seeking the service for various reasons, said Dr. Mitchell Rosen, director of the University of California, San Francisco’s fertility preservation center, which specializes in helping cancer patients preserve their fertility prior to treatment.

“It is now almost common practice to see patients coming in electively wanting to freeze their eggs,” he said in an interview. “More and more women are delaying child bearing. They want to have opportunities to expand their reproductive potential so they’re not forced into situations or possibly not able to have children in the future.”

Despite the demand and removal of the experimental designation, however, Dr. Rosen has not seen more insurance companies opt to cover the procedure. Only 15 states mandate benefit coverage for certain infertility services, including cryopreservation, but the laws vary widely. Most states require coverage only after a patient has been diagnosed as infertile.

“For patients who are undergoing medical treatment that would render significant reproductive impairment, that doesn’t matter to insurance companies,” Dr. Rosen said. “This is [considered] a completely elective procedure.”

Dr. Hill said he is optimistic that the coding change could move more insurers to cover cryopreservation, especially in states that already mandate in-vitro fertilization coverage. “If more insurers companies cover the procedure, certainly, it’s going to help patients access the treatment,” he said.

Dr. Rosen is not certain if the coding difference will change how frequently the procedure is covered, but he strongly supports coverage for cryopreservation in cases in which women are likely to have significant reproductive impairment because of medical treatment.

“If it’s one step in the right direction of it ultimately being covered, then that’s great,” he said. “But I don’t know if changing the CPT code is going to make a difference.”

Meanwhile, the cryopreservation of immature oocytes remains experimental because there is insufficient clinical data to support its use in many clinical applications, according to ASRM. A new Category III CPT code (0357T) has been introduced for reporting cryopreservation of immature oocytes.

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On Twitter @legal_med

Physicians hope a coding change for cryopreservation will drive more insurers to cover the procedure.

Starting in 2015, cryopreservation of mature oocytes can be reported using a Category I CPT code, rather than a Category III code, which is associated with experimental procedures.

The shift will hopefully lead to the procedure becoming more accessible to patients by influencing insurers to pay for the treatment, said Dr. George Hill, a Nashville reproductive endocrinologist and former chair of the American Society of Reproductive Medicine’s (ASRM) coding committee.

The new CPT code is 89337 for cryopreservation of mature oocytes. It was previously reported with code 0059T, which has been deleted. Details about the coding change were announced by ASRM in late January.

“This is a real advantage to physicians that this has been recognized as a mainstream procedure,” said Dr. Hill, who is ASRM’s current treasurer. “When you’ve got a Category I code, it takes away a little of the stigma of being experimental.”

The American College of Obstetricians and Gynecologists (ACOG) said in a January 2014 opinion that cryopreservation of oocytes should no longer be considered experimental for women facing infertility as a result of chemotherapy or other gonadotoxic therapies.

The ACOG guidelines endorsed a joint 2013 document from ASRM and the Society for Assisted Reproductive Technology that also advocated removing the experimental label. The decisions were fueled by improvements in mature oocyte cryopreservation and the increasing survival rates of cryopreserved mature egg cells, according to the opinions, but both policy statements stopped short of recommending oocyte crypreservation solely for delaying childbearing in healthy women.

The popularity of cryopreservation has exploded in recent years, with more women seeking the service for various reasons, said Dr. Mitchell Rosen, director of the University of California, San Francisco’s fertility preservation center, which specializes in helping cancer patients preserve their fertility prior to treatment.

“It is now almost common practice to see patients coming in electively wanting to freeze their eggs,” he said in an interview. “More and more women are delaying child bearing. They want to have opportunities to expand their reproductive potential so they’re not forced into situations or possibly not able to have children in the future.”

Despite the demand and removal of the experimental designation, however, Dr. Rosen has not seen more insurance companies opt to cover the procedure. Only 15 states mandate benefit coverage for certain infertility services, including cryopreservation, but the laws vary widely. Most states require coverage only after a patient has been diagnosed as infertile.

“For patients who are undergoing medical treatment that would render significant reproductive impairment, that doesn’t matter to insurance companies,” Dr. Rosen said. “This is [considered] a completely elective procedure.”

Dr. Hill said he is optimistic that the coding change could move more insurers to cover cryopreservation, especially in states that already mandate in-vitro fertilization coverage. “If more insurers companies cover the procedure, certainly, it’s going to help patients access the treatment,” he said.

Dr. Rosen is not certain if the coding difference will change how frequently the procedure is covered, but he strongly supports coverage for cryopreservation in cases in which women are likely to have significant reproductive impairment because of medical treatment.

“If it’s one step in the right direction of it ultimately being covered, then that’s great,” he said. “But I don’t know if changing the CPT code is going to make a difference.”

Meanwhile, the cryopreservation of immature oocytes remains experimental because there is insufficient clinical data to support its use in many clinical applications, according to ASRM. A new Category III CPT code (0357T) has been introduced for reporting cryopreservation of immature oocytes.

[email protected]

On Twitter @legal_med

Physicians hope a coding change for cryopreservation will drive more insurers to cover the procedure.

Starting in 2015, cryopreservation of mature oocytes can be reported using a Category I CPT code, rather than a Category III code, which is associated with experimental procedures.

The shift will hopefully lead to the procedure becoming more accessible to patients by influencing insurers to pay for the treatment, said Dr. George Hill, a Nashville reproductive endocrinologist and former chair of the American Society of Reproductive Medicine’s (ASRM) coding committee.

The new CPT code is 89337 for cryopreservation of mature oocytes. It was previously reported with code 0059T, which has been deleted. Details about the coding change were announced by ASRM in late January.

“This is a real advantage to physicians that this has been recognized as a mainstream procedure,” said Dr. Hill, who is ASRM’s current treasurer. “When you’ve got a Category I code, it takes away a little of the stigma of being experimental.”

The American College of Obstetricians and Gynecologists (ACOG) said in a January 2014 opinion that cryopreservation of oocytes should no longer be considered experimental for women facing infertility as a result of chemotherapy or other gonadotoxic therapies.

The ACOG guidelines endorsed a joint 2013 document from ASRM and the Society for Assisted Reproductive Technology that also advocated removing the experimental label. The decisions were fueled by improvements in mature oocyte cryopreservation and the increasing survival rates of cryopreserved mature egg cells, according to the opinions, but both policy statements stopped short of recommending oocyte crypreservation solely for delaying childbearing in healthy women.

The popularity of cryopreservation has exploded in recent years, with more women seeking the service for various reasons, said Dr. Mitchell Rosen, director of the University of California, San Francisco’s fertility preservation center, which specializes in helping cancer patients preserve their fertility prior to treatment.

“It is now almost common practice to see patients coming in electively wanting to freeze their eggs,” he said in an interview. “More and more women are delaying child bearing. They want to have opportunities to expand their reproductive potential so they’re not forced into situations or possibly not able to have children in the future.”

Despite the demand and removal of the experimental designation, however, Dr. Rosen has not seen more insurance companies opt to cover the procedure. Only 15 states mandate benefit coverage for certain infertility services, including cryopreservation, but the laws vary widely. Most states require coverage only after a patient has been diagnosed as infertile.

“For patients who are undergoing medical treatment that would render significant reproductive impairment, that doesn’t matter to insurance companies,” Dr. Rosen said. “This is [considered] a completely elective procedure.”

Dr. Hill said he is optimistic that the coding change could move more insurers to cover cryopreservation, especially in states that already mandate in-vitro fertilization coverage. “If more insurers companies cover the procedure, certainly, it’s going to help patients access the treatment,” he said.

Dr. Rosen is not certain if the coding difference will change how frequently the procedure is covered, but he strongly supports coverage for cryopreservation in cases in which women are likely to have significant reproductive impairment because of medical treatment.

“If it’s one step in the right direction of it ultimately being covered, then that’s great,” he said. “But I don’t know if changing the CPT code is going to make a difference.”

Meanwhile, the cryopreservation of immature oocytes remains experimental because there is insufficient clinical data to support its use in many clinical applications, according to ASRM. A new Category III CPT code (0357T) has been introduced for reporting cryopreservation of immature oocytes.

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On Twitter @legal_med

Fewer than 1 in 10 oncology patients demand specific tests or procedures, and their physicians do not often concede when such demands are inappropriate, according to a study published Feb. 12 in JAMA Oncology.

Dr. Keerthi Gogineni and her colleagues at the University of Pennsylvania, Philadelphia, interviewed clinicians working in outpatient oncology clinics at three Philadelphia area hospitals regarding patient encounters between October 2013 and June 2014. A total of 34 oncologists, 11 oncology fellows, and 15 nurse practitioners/physician assistants were interviewed. Among the 5,050 patient encounters, patients demanded or requested treatments in 9% of cases. About 72% were clinically appropriate requests, while 11% were deemed clinically inappropriate by the health providers (JAMA Oncology doi:10.1001/jamaoncol.2014.197).

Of the 440 patient requests, 216 (49%) were for imaging studies; 68 (16%) for palliative treatment of pain, insomnia, or other symptoms; 60 (14%) were for laboratory tests; 23 (5%) were for genetic or chemosensitivity analyses; 30 (7%) were for a clinical trial or experimental treatment; and 16 (3.6%) were for a specific chemotherapy, drug, or biologic agent. (The remaining requests were categorized as “other.”)

Oncology team members agreed to 310 (98%) of the 316 clinically appropriate requests. Of the equivocal ones, they complied with 48 (65%). And among the 50 clinically inappropriate demands or requests, physicians and other providers complied with 7 (14%). Of the total 5,050 patient encounters, clinicians ordered tests or procedures based on improper demands in less than 1% of encounters.

Researchers found no association between patient demands and patient sex, age, race, type of insurance, approximate household income, disease stage, treatment intent, visit type, clinician type, clinician race, or hospital.

Given the rarity of clinically inappropriate demands or requests and that few were complied with, such improper requests are unlikely to add significantly to health care costs, Dr. Gogineni and her colleagues concluded, adding that even requests for clinically appropriate interventions could suggest lack of trust between the doctor and patient and threaten the therapeutic relationship.

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On Twitter @legal_med

Fewer than 1 in 10 oncology patients demand specific tests or procedures, and their physicians do not often concede when such demands are inappropriate, according to a study published Feb. 12 in JAMA Oncology.

Dr. Keerthi Gogineni and her colleagues at the University of Pennsylvania, Philadelphia, interviewed clinicians working in outpatient oncology clinics at three Philadelphia area hospitals regarding patient encounters between October 2013 and June 2014. A total of 34 oncologists, 11 oncology fellows, and 15 nurse practitioners/physician assistants were interviewed. Among the 5,050 patient encounters, patients demanded or requested treatments in 9% of cases. About 72% were clinically appropriate requests, while 11% were deemed clinically inappropriate by the health providers (JAMA Oncology doi:10.1001/jamaoncol.2014.197).

Of the 440 patient requests, 216 (49%) were for imaging studies; 68 (16%) for palliative treatment of pain, insomnia, or other symptoms; 60 (14%) were for laboratory tests; 23 (5%) were for genetic or chemosensitivity analyses; 30 (7%) were for a clinical trial or experimental treatment; and 16 (3.6%) were for a specific chemotherapy, drug, or biologic agent. (The remaining requests were categorized as “other.”)

Oncology team members agreed to 310 (98%) of the 316 clinically appropriate requests. Of the equivocal ones, they complied with 48 (65%). And among the 50 clinically inappropriate demands or requests, physicians and other providers complied with 7 (14%). Of the total 5,050 patient encounters, clinicians ordered tests or procedures based on improper demands in less than 1% of encounters.

Researchers found no association between patient demands and patient sex, age, race, type of insurance, approximate household income, disease stage, treatment intent, visit type, clinician type, clinician race, or hospital.

Given the rarity of clinically inappropriate demands or requests and that few were complied with, such improper requests are unlikely to add significantly to health care costs, Dr. Gogineni and her colleagues concluded, adding that even requests for clinically appropriate interventions could suggest lack of trust between the doctor and patient and threaten the therapeutic relationship.

[email protected]

On Twitter @legal_med

Fewer than 1 in 10 oncology patients demand specific tests or procedures, and their physicians do not often concede when such demands are inappropriate, according to a study published Feb. 12 in JAMA Oncology.

Dr. Keerthi Gogineni and her colleagues at the University of Pennsylvania, Philadelphia, interviewed clinicians working in outpatient oncology clinics at three Philadelphia area hospitals regarding patient encounters between October 2013 and June 2014. A total of 34 oncologists, 11 oncology fellows, and 15 nurse practitioners/physician assistants were interviewed. Among the 5,050 patient encounters, patients demanded or requested treatments in 9% of cases. About 72% were clinically appropriate requests, while 11% were deemed clinically inappropriate by the health providers (JAMA Oncology doi:10.1001/jamaoncol.2014.197).

Of the 440 patient requests, 216 (49%) were for imaging studies; 68 (16%) for palliative treatment of pain, insomnia, or other symptoms; 60 (14%) were for laboratory tests; 23 (5%) were for genetic or chemosensitivity analyses; 30 (7%) were for a clinical trial or experimental treatment; and 16 (3.6%) were for a specific chemotherapy, drug, or biologic agent. (The remaining requests were categorized as “other.”)

Oncology team members agreed to 310 (98%) of the 316 clinically appropriate requests. Of the equivocal ones, they complied with 48 (65%). And among the 50 clinically inappropriate demands or requests, physicians and other providers complied with 7 (14%). Of the total 5,050 patient encounters, clinicians ordered tests or procedures based on improper demands in less than 1% of encounters.

Researchers found no association between patient demands and patient sex, age, race, type of insurance, approximate household income, disease stage, treatment intent, visit type, clinician type, clinician race, or hospital.

Given the rarity of clinically inappropriate demands or requests and that few were complied with, such improper requests are unlikely to add significantly to health care costs, Dr. Gogineni and her colleagues concluded, adding that even requests for clinically appropriate interventions could suggest lack of trust between the doctor and patient and threaten the therapeutic relationship.

[email protected]

On Twitter @legal_med