From the President
From the Statehouse
From the Third Party Payer Consultant
From the Legal Counsel
From the President...Gary
Smotrich, MD, FACS
To
My Fellow NJSPS members:
On May 5 I found myself in the Longworth House Office Building
in Washington for the annual ASPS Northeast Fly-In (or train-in,
in my case), when my Blackberry went off with a message from Bev
Lynch that a petition from the state's dermatologists had been
sent to the Board of Medical Examiners. The petition deals with
the oversight of physician assistants performing dermatologic
procedures, and was written in response to the state
dermatologic society's concerns about a large "dermatology"
group in New Jersey in which many of the physicians are not
dermatologists. More about this later. The irony of that day is
that while many of the issues that we deal with on a federal
level such as Medicare reform and the CARES bill that addresses
insurance coverage of congenital deformities are important, the
bread and butter issues are always closer to home. That is why
your Society needs your support. Membership in NJSPS is
approaching about three-quarters of the state's ASPS members,
far better than other specialty societies. Nothing short of one
hundred percent membership is our goal, given our
ever-increasing educational and advocacy agenda.
Back to the dermatology petition. As of this writing, we have
been in contact with the Dermatologic Society of New Jersey, and
our counsel Bob Conroy has spoken with his dermatology
counterpart, to address our concerns that the wording of the
petition may negatively impact plastic surgeons who employ
physician assistants. The petition asks the SBME to mandate that
a board-certified dermatologist supervise a PA performing
dermatologic procedures. As plastic surgeons, many of the office
procedures we perform are, by definition, dermatologic in
nature. It is our being lumped together with all
"non-dermatologists" that drew our attention.
The concerns of board-certified dermatologists about other
physicians calling themselves dermatologists parallels our
experience with nonsurgeons calling themselves cosmetic
surgeons, to say nothing of them performing cosmetic surgery.
The newer liposuction technologies performed in the office
setting under "mild sedation" escape all detection by the Board
of Medical Examiner's radar, and we will be examining this in
the coming months. Scope of practice issues in New Jersey to
date have generally involved non-MD's encroaching on the field
of medicine. Nonsurgeons are physicians, and this presents an
entirely new set of challenges. Surgery By Surgeons has been
promoted by the American College of Surgeons, and this national
initiative needs to be reinvigorated on a state level. The
Aesthetic Society recently sent a survey to members asking if
ASAPS members should teach aesthetic procedures to physicians
outside of the "cores" (ENT, oculoplastic and dermatologic
surgery).
Strategies are being developed on the national and state levels,
and as always, we will keep you informed.
Have a relaxing and safe summer.
From the Statehouse....Beverly
J. Lynch
Hearings ordered on Horizon executives' pay
New Jersey Senate President Stephen M. Sweeney today called for
legislative hearings to look into the compensation packages of
executives for Horizon Blue Cross Blue Shield of New Jersey. The
request came after the Asbury Park Press, citing documents filed
with the New Jersey Department of Banking and Insurance,
reported William J. Marino, Horizon's president and chief
executive officer, received a compensation package of $8.7
million in 2009, or 59 percent more than the previous year.
(Diamond, Gannett)
http://www.app.com/article/20100519/NEWS03/5200325/1007/Hearings-ordered-on-Horizon-executives-pay
Call to Action! Important medical liability legislation
Assembly bill A-1982, sponsored by Assemblyman Herb Conaway, Jr.
(D-Burlington/Camden) and Assemblyman Declan J. O'Scanlon, Jr.
(R-Mercer/Monmouth) and Assemblyman Jay Webber
(R-Morris/Passaic), and Co-Sponsored by Assemblywoman Handlin
(R-Monmouth) and Assemblyman Conners (D-Burlington/Camden), is
expected to be heard in the Assembly Health and Human Services
Committee on Thursday, June 10, at 10 am.
The bill is expected to be heard "for discussion only" at this
time, which means it will not be voted on by the committee
members. Testimony will be accepted by some members of the
public. The agenda for the June 10 meeting has not yet been
filed, so dates/times are still fluid.
All supporters will not be permitted to speak, but can submit
written testimony to the committee, and any press that is
present.
It is important that the New Jersey physician community voice
its support for this measure, and ask for the bill to be heard
on the regular agenda (meaning the committee can vote on it and
move the bill forward in the legislative process).
Please call the Chairman of the Health Committee (and sponsor of
the bill), Assemblyman Herb Conaway at 856/461-3997, and call
the Assembly Majority Leader, Assemblyman Joe Cryan (D-Union) at
908/624-0880.
If you prefer to attend the hearing (not sure how many
physicians will be permitted to speak on the bill), you can
email me for more information.
Below please find a summary of the bill's key provisions:
The bill provides for various revisions to the laws governing
lawsuits and insurance coverage for medical malpractice.
The bill also provides that a malpractice action against a
health care provider shall be commenced within two years after
the plaintiff or patient discovers, or through the use of
reasonable diligence should have discovered, the injury, but not
more than four years after the date of the alleged act,
omission, neglect or occurrence that is the basis of the action,
except that in the case in which the allegation of malpractice
against the health care provider is that a foreign object has
been wrongfully left within a patient's body, the claim shall be
barred unless commenced within one year after the plaintiff or
patient discovers, or through the use of reasonable diligence
should have discovered, the existence of the foreign object
wrongfully left in the patient's body, whichever first occurs.
The bill also revises the requirements for an affidavit by an
appropriately licensed person to be provided by a plaintiff in
certain negligence and malpractice actions, by further requiring
that the affidavit state that the care, skill or knowledge used
in the treatment, practice or work that is the subject of the
complaint did not meet a commonly recognized reasonable standard
of care. In the case of an action for medical malpractice, the
affidavit shall further: (1) establish that there was a
provider-patient relationship and identify the specific act by
the defendant which is the basis for the cause of action against
the defendant, or, if there was no provider-patient
relationship, identify the specific act by the defendant which
is the basis for the cause of action against the defendant; and
(2) be based on and refer to objective scientific clinical
evidence. The person executing the affidavit shall include in
the affidavit a certification, under penalty of perjury, that
the patient's chart and other pertinent information submitted
has been personally reviewed. A person shall be guilty of a
crime of the fourth degree if the person purposefully or
knowingly makes, or causes to be made, a false, fictitious,
fraudulent, or misleading statement of material fact in, or
omits a material fact from, or causes a material fact to be
omitted from, any such affidavit.
The bill also provides that in an action alleging medical
malpractice, a person shall not give expert testimony or execute
an affidavit on the appropriate standard of practice or care
unless the person is licensed as a physician or other health
care professional in New Jersey, as opposed to the current
requirement that the physician or professional be licensed in
the United States, provided however, that a court may waive the
requirement that a person providing testimony as an expert
witness be licensed in New Jersey upon sufficient evidence that
no person licensed in New Jersey meets the qualifications set
forth in section 7 of P.L.2004, c.17 (2A:53A-41).
The bill further provides with respect to medical malpractice
actions, that expert testimony shall be based on and refer to
objective scientific clinical evidence, as defined in the bill.
A person testifying as an expert witness in such an action shall
be guilty of a crime of the fourth degree, and shall be forever
barred from presenting expert testimony in this State if the
person purposefully or knowingly makes, or causes to be made, a
false, fictitious, fraudulent, or misleading statement of
material fact in, or omits a material fact from, or causes a
material fact to be omitted from, any expert testimony.
The bill also provides that an insurer shall not increase the
premium of any medical malpractice liability insurance policy
based on a claim of medical negligence or malpractice against an
insured unless the claim, as defined in the bill, results in a
medical malpractice claim settlement, judgment or arbitration
award against the insured. The bill also prohibits an insurer
from increasing medical malpractice insurance premiums, if the
alleged malpractice occurred in certain charitable or emergency
situations.
The bill also provides that every claim or demand filed against
an insured for damages in excess of $100,000 per occurrence for
economic loss and non-economic loss shall document the economic
loss for which relief is sought and shall set forth in detail
the economic loss incurred at the time the case is subject to a
complementary dispute resolution proceeding, at the time
settlement negotiations are entered into, or at the time a case
is tried, as well as a detailed statement of claimed prospective
economic loss resulting from the allegation of medical
malpractice, which documentation shall be updated from time to
time as necessary and shall be provided to the court, the
complementary dispute resolution agent or, in the case of
settlement, the defendant, as applicable.
The bill also provides, that in every trial in which damages are
awarded in an action alleging medical malpractice, the trier of
fact shall separately itemize damages awarded for economic loss
and damages awarded for non-economic loss and the judge
presiding over the proceeding shall review each verdict to
determine whether the award is clearly inadequate, excessive, or
disproportionate in view of the nature of the medical condition
or injury that is the cause of action or because of passion or
prejudice by the jury.
The bill also provides that it shall be presumed that a person
who signs an informed consent form or document for a medical
procedure or other form of health care has read that form or
document.
The bill also provides that if an attorney representing a
plaintiff in a medical malpractice action files the complaint
using fictitious names for one or more persons who may be
determined to be parties to the action but whose role is unknown
at the time of the filing of the complaint, there shall be no
time limitation within which the attorney may substitute the
name of any person or persons for a fictitious name nor any
other bar to such substitution if the person or persons are
subsequently determined to be joined as a party to the action.
Finally, the bill provides that a physician licensed to practice
medicine in this State shall not be liable for civil damages as
a result of any act or omission in connection with the rendering
of any treatment or procedure for illness or injury if the
treatment or procedure is rendered while the physician is
performing the treatment or procedure as a volunteer, in good
faith and without consideration, at a clinic, other health care
facility, or any other location where the treatment or procedure
is being rendered.
From the Third Party Payer
Consultant....James McNally, CPC
Medicare Administrative
Contractors Post Updated Fees to Reflect Revisions to
Certain Codes
Medicare has revised the payment files for the 2010 Medicare
Physician Fee Schedule Database (MPFSDB) based on retroactive
provisions under the Patient Protection and Affordable Care Act
(Pub.L.111-148) (the Affordable Care Act).
The most recent files have been posted to their website on May
19, 2010.
The revised fees are effective May 19, 2010 for claims with
dates of service on or after January 1, 2010 and should be used
until such time as the controversy over the 21.2% reduction is
resolved.
PHYSICIANS MUST KEEP IN MIND THAT THESE FEES ARE REVISED TO
REFLECT CHANGES IN RELATIVE VALUES AND A SLIGHT CHANGE TO THE
CONVERSION FACTOR ONLY.
THE 21.2% REDUCTION IN THE CONVERSION FACTOR WITH SUBSEQUENT
REDUCTIONS IN FEES MAY STILL TAKE EFFECT ON JUNE 1, 2010 UNLESS
CONGRESS ACTS TO HALT THESE CUTS!
To download these files, go to Highmark Medicare Services:
https://www.highmarkmedicareservices.com/partb/reimbursement/feedb-2010.html#nj
Medicare Advantage Fraud,
Waste, and Abuse (FWA) Training no longer Mandatory
As reported previously and expected, the Center for Medicare and
Medicaid Services (CMS) has published a rule about Medicare
Advantage and Part D plans requiring that physicians take a
formal course on an annual basis in Fraud, Waste and Abuse (FWA)
training.
The rule explains that physicians and suppliers, by virtue of
their being enrolled in the Medicare program do not need to
obtain fraud, waste and abuse-compliance training from Medicare
Advantage plans.
For guidance on this issue, contact us through the Third Party
Insurance Help Program.
United Healthcare UCR
Settlement Documents are on the Way
A record breaking settlement has been reached in organized
medicine’s action against United Healthcare (UHC) and their use
of artificially low payments via their UCR fee schedules in the
payment for out of network services to physicians.
More than $350 million is available to compensate physicians and
their patients for 15 years of artificially low payments for
these out-of-network services.
The deadline for filing a claim to share in the settlement fund
is October 5, 2010. The settlement claims administrator began
mailing the settlement notice and claim forms to physicians on
April 16, 2010.
Physicians should be on the lookout for a plain white mailer
with “United Healthcare” written on the bottom and with the
return address referencing the Settlement Claims Administrator:
United Healthcare Class Action Litigation c/o Berdon Claims
Administration LLC, P.O. Box 15000, Jericho, NY 11853-1001.
In order to assist you in this effort, the American Medical
Association (AMA) is providing a new on-line resource that will
help affected physicians with step-by-step guide to and help in
determining eligibility, assembling documentation and filing a
claim under the terms of the settlement.
Go to the link here and read more about what needs to be done in
regard to this record-breaking settlement reached in the AMA’s
legal victory against UnitedHealth Group—the nation's largest
health insurer and parent company of UHC.
http://www.ama-assn.org/ama/pub/advocacy/current-topics-advocacy/private-sector-advocacy/health-insurer-settlements/unitedhealth-ucr-settlement.shtml
AMA physician members can also get personal assistance with
filing a claim by going to the AMA Practice Management Center at
the link here or by calling (800) 621-8335.
http://www.ama-assn.org/ama/pub/physician-resources/solutions-managing-your-practice/practice-management-center.shtml
For guidance on this issue, contact us through the Third Party
Insurance Help Program.
Reminder on PQRI Feedback
Reports
For questions with regard to the PQRI program, you may contact
Quality Net at:
(866) 288-8912
E-mail:
qnetsupport@sdps.org
Web Site:
https://www.qualitynet.org/portal/server.pt
Individual EPs can call their respective carrier or A/B MAC
Provider Contact Center to request 2007 Re-Run and 2008 PQRI
feedback reports that will contain data based on their
individual NPI. This means that EPs who are part of a group
practice can get their individual feedback reports as well.
When requesting feedback reports, EPs will be asked to provide
an e-mail address. EPs can then expect to receive the e-mailed
feedback report within 30 days of the request. If no report is
available, the provider will receive an e-mail notification.
EPs Requesting Reports Based on Taxpayer Identification
Number (TIN) for Group Practice Information
EPs who request feedback reports based on TIN or group practice
information will still be required to access their PQRI feedback
reports via the PQRI Portal after first registering in IACS. An
IACS user identification and password is required to access the
PQRI Portal. The PQRI Portal may be found at
http://www.qualitynet.org/pqri on the Internet.
CMS Releases Guidance on Signature
Requirements
The Centers for
Medicare & Medicaid Services (CMS) has issued Change Request
(CR) 6698 to clarify for physicians how Medicare claims review
contractors review claims and medical documentation submitted by
providers.
CR 6698 outlines
the new rules for signatures and adds language for
E-Prescribing. See the rest of this article for complete
details. These revised/new signature requirements are applicable
for reviews conducted on or after the implementation date of
April 16, 2010.
To read more, go
to the link here.
http://www.cms.gov/MLNMattersArticles/downloads/MM6698.pdf
For guidance on
this issue, contact us through the Third Party Insurance Help
Program.
Horizon BCBS Revises Modifier 25 & 59
Policy
As reported
previously, Horizon Blue Cross Blue Shield of New Jersey (HBCBSNJ)
had released a February 2010 memo detailing changes to their
modifier payment policy. Two commonly used modifiers, 25 and 59,
had changes that had negatively impacted their reimbursement
levels.
As a result, the
Medical Society of New Jersey (MSNJ) had filed a compliance
dispute against Horizon alleging multiple violations of the
national class-action settlement agreement concerning these
modifiers.
Subsequent to this
action and after “significant feedback” from panel physicians,
HBCBSNJ has revised their policy to better reflect the
appropriate use of these modifiers.
For your
information and review, the full HBCBSNJ policies on the
modifiers in controversy are located at the links below.
Modifier 25 -
Modifier 25 will allow an E&M service at 100% of the applicable
Horizon BCBSNJ fee schedule when performed with a separate and
distinct non-E&M procedure/service on the same date of service.
The other service will also be considered at 100%. The 50%
reduction will only apply to non preventive E&M and preventive
E&M services on the same day. To read more, go to:
https://services5.horizon-bcbsnj.com/eprise/main/horizon/tsnj/tsweb/uploadimages/upload/Modifier_25.pdf
Modifier 59 –
Horizon will no longer automatically reduce the second service
prior to multiple surgery pricing if it meets the definition of
modifier 59. Multiple surgery pricing reductions/rules will
still apply as they have in the past. To read more, go to:
https://services5.horizon-bcbsnj.com/eprise/main/horizon/tsnj/tsweb/uploadimages/upload/Modifier_59.pdf
For guidance on
this issue, contact us through the Third Party Insurance Help
Program.
CMS Issues Conflicting
Deadlines on PECOS Enrollment
In February, CMS
announced a new deadline of January 3, 2011 for the
implementation of phase 2 of the enrollment requirements for
getting ordering, referring providers into the PECOS system.
According to the
Federal Register published May 5, 2010, the date has been moved
up to July 6, 2010. The change is in interim status, with
a 30 day comment rule, so we will not know for certain that July
6 is the new effective date until early June.
As more
information becomes available, we will keep you apprised.
Claims with an
ordering/referring physician name and NPI number require that
the ordering/referring physician be enrolled in the Provider
Enrollment, Chain and Ownership System (PECOS). Without this,
claims will be denied.
To determine if
you are already in the system, review the file found at:
http://www.cms.hhs.gov/MedicareProviderSupEnroll/06_MedicareOrderingandReferring.asp
If you are on this
list, no action is necessary.
If you are not on
this list, you will need to set up a record in the PECOS system.
Legal Report...Kern
Augustine Conroy & Schoppmann, P.C.
Red Flags Rule - The FTC Cries Wolf Again
On the last business day before they were to begin enforcing the
Red Flags Rule, the Federal Trade Commission (FTC) again
extended the enforcement deadline - this time until December 31,
2010. The Red Flags Rule was promulgated by the FTC to address
the risk of identity theft. In announcing the latest delay, the
FTC Chairman blamed Congress for the uncertainty concerning the
Rule, saying the FTC developed the Rule because Congress
directed it to develop regulations requiring "creditors" as well
as "financial institutions" to address the risk of identity
theft when it passed the Fair and Accurate Credit Transactions
Act. Because the Act applied to "creditors" the FTC claims it
was obligated to include in its Red Flags Rule all entities that
have "covered accounts", including medical practices. Numerous
efforts to get the FTC to alter its opinion have proven
unsuccessful.
When it last delayed enforcement, in October of 2009, the FTC
announced that it was doing so to allow Congress time to
finalize legislation that would limit the scope of businesses
covered by the Rule. Since then, Congress has failed to act.
However, according to the FTC, it has received another request
from "certain Members of Congress" for another delay in
enforcement of the Rule beyond June 1, 2010. In announcing the
latest delay, the FTC urged Congress to act quickly to pass
legislation that will resolve any questions as to which entities
are covered by the Rule and obviate the need for further
enforcement delays. If Congress passes legislation limiting the
scope of the Red Flags Rule with an effective date earlier than
December 31, 2010, the FTC will begin enforcement as of that
effective date to those entities still within the scope of the
new legislation.
Just one week before the latest announcement the AMA and the
American Osteopathic Association filed a lawsuit asking the
courts to declare that the legislation which resulted in the Red
Flags Rule was not intended to apply to physician offices.
However, neither organization asked the courts to immediately
enjoin enforcement. The delay in enforcement by the FTC does not
delay enforcement of New Jersey's Identity Theft Prevention Act.
New Disclosure Requirement for Stark In-Office Ancillary
Services
Among its many provisions, the recently signed Patient
Protection & Affordable Care Act (the "Health Care Reform Act"),
has imposed a new requirement on physicians who rely on the
Stark "in-office ancillary services" exception for certain
imaging services. This exception generally allows physicians to
make referrals of certain designated health services within the
referring physician's own practice. Under the Act, physicians
who utilize this exception to make referrals for CT, MRI or PET
must provide patients with written notice, at the time of the
referral, that the patient may obtain the services from another
supplier, other than the referring physician/group practice. The
written notice also must include a non-exhaustive list of other
suppliers who furnish services in the area in which the patients
reside. Although the Act was signed into law in March 2010, the
effective date of this new requirement is January 1, 2010.
Therefore, affected physicians should comply with this new
requirement immediately.
Physicians May Be Eligible for FICA Tax Refund
The IRS recently determined that medical residents who earned
wages before April 1, 2005 (when new IRS rules went into effect)
are now excluded from Federal Insurance Contributions Act (FICA)
taxes. Up until now, there was a dispute as to whether medical
residents who filed FICA refund claims were eligible for the
student FICA exception. As a result of the IRS' recent
determination, individual medical residents may be eligible to
receive refunds if they filed FICA refund demands or if their
employer filed a refund claim for the period in which they were
residents. Similar to other FICA refund claims, these refund
claims are subject to verification by the IRS. The IRS will
contact individuals affected by the IRS' new ruling and who
filed a FICA refund claim. Individuals who are covered under a
claim filed by their previous employers will be contacted by
those employers. However, it is recommended that all individuals
who may be eligible for the refund directly contact their
residency programs to see if they qualify.
Data Breach Tied to Leased Copier Hard Drive
Affinity Health Plan, a New York managed care plan, is providing
notice to more than 400,000 persons regarding the potential
breach of customer, provider and staff personal information,
which may have included Social Security numbers, birth dates,
and medical information. It is believed that the data was leaked
as a result of the information being left on a leased office
copier hard drive that was returned to the leasing company.
Failure to properly dispose of medical information is a
violation of federal and state privacy laws and regulations
which could result in serious implications. Recently enhanced
enforcement of HIPAA through mandated periodic audits by the
Department of Health & Human Services and increased civil
monetary penalties for violations means it is more important
than ever for physicians to appropriately safeguard patients'
personal information (including information stored on copiers).
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