FROM: AMC/NOMA Staff
SUBJECT: AMC/NOMA Notables
Date: February 21, 2002
AMC/NOMA
provides print materials through fax blasts, our magazine – The Cleveland Physician,
fact sheets, mailers and through our Web site at www.amcnoma.org. Periodically the physician members with email
addresses will receive the AMC/NOMA Notables.
Medical Malpractice Insurance, Tort Reform
and Supreme Court Cases
Physicians
are experiencing large increases in their renewal of malpractice premiums. Higher
jury awards, losses by insurance reinsures, the downturn in the stock market in which
insurance companies have invested their reserves, and unusually low rates for the past ten
years are factors which have contributed to driving up the cost of professional liability
insurance. Premium increases appear to be highest in the northeastern part of Ohio.
Ohio law does require insurers to file rate increase requests with the Ohio Department of
Insurance. The Department reviews the requests to make sure they are actuarially sound and
meet the insurance standards established by law. According to the Director of the
Ohio Department of Insurance, Lee Covington, " the rate increases filed by the
professional liability insurance carriers in Ohio have been found to be actuarially sound
and with the regulations under Ohio law."
At the request of Governor Bob Taft, the Ohio Department of Insurance took a look at the
professional liability insurance situation and found that the market in Ohio to be
adequate and competitive and believes premium rates will continue to increase over the
next year. Governor Taft has requested the Department to continue to gather
information on the market, factors influencing the market and the consequences of various
types of governmental intervention. Currently, no legislation has been
introduce to address the liability insurance problem, however, some tort reform bills are
pending before the Ohio General Assembly.
The Academy of Medicine
of Cleveland/Northern Ohio Medical Association recently mailed a survey to 2,000
physicians in the greater Cleveland area asking about liability insurance costs and how
these costs have affected their practice. Based
on a nearly six percent rate of return, physicians are reporting rate increases as high as
233% for one group and increases of 100% or more were not uncommon. While approximately 18% of the physicians reported
no increase, the majority of respondents fell within the range of 25%-40% increase in
their malpractice rates for 2001, with some respondents expecting greater increases in
2002.
Many believe that tort reform will assist in keeping professional liability
premiums lower, however this cannot take place unless there is a change in the present
composition of the Ohio Supreme Court. The current justices have handed down a
number of decisions that have had a negative impact on the practice of medicine in
Ohio. The Ohio Supreme Court ruled the comprehensive tort reform package effective
January 1997 unconstitutional in August of 1999.
The Ohio electorate will have
one more chance this year to change the composition of the Ohio Supreme Court. Under
the current Supreme Court, Justices Alice Robie Resnick, Andrew Douglas, Francis Sweeney
and Paul Pfeifer have a judicial philosophy of "making law." Justices
Thomas Moyer, Deborah Cook and Eve Stratton carry the philosophy that justices should
"interpret the law." Many physicians and businesses believe Ohio needs to
get back to the traditional philosophy of having the courts "interpret the law"
written by the Ohio General Assembly.
In November of
this year, Supreme Court Justice Eve Stratton, a Republican is up for re-election.
Stratton will be running against Judge Janet Burnside, currently a judge in Cuyahoga
County with the Court tort reform package
was ruled unconstitutional in 1999.
Justice Andy Douglas will retire this year because of the age limits placed on Supreme
Court Justices in Ohio. Douglas, a Republican from Toledo, has not been on the side
of physicians or business in many of the court decisions that have
been handed down. Maureen O'Connor, Ohio's Lieutenant Governor and Director of the
Ohio Department of Public Safety, will run
for Douglas' Supreme Court seat. Opposing O'Connor will likely be judge Tim Black
from Cincinnati. Black ran against Justice Deborah Cook in 2000 and noted to several
constituency groups that he would follow Justice Resnick's philosophy.
The
AMA has also adopted resolutions seeking to make tort reform a legislative priority for
2002, with specific emphasis on capping non-economic damages. AMA representatives noted that tort reform has
already been proven effective based on legislation already in place in Indiana, California
and Louisiana where insurance rates have come down as a result. The AMC/NOMA will continue to monitor all
facets of this situation and bring you timely updates.
For additional information on the insurance situation, please contact: Elayne R. Biddlestone at 216-520-1000, extension
321 or at ebiddlestone@amcnoma.org.
CMS receives pressure from Congress for
instructions on self-administered drugs
House
Commerce Health Subcommittee Chairman, Michael Bilirakis (R-Florida), in a recent letter,
urged CMS Administrator Tom Scully to issue a new program memo clarifying national payment
policy on self-administered drugs. Bilirakis states that the agency has ignored a
law passed in 2000 calling for a new self-administered drug policy.
The congressional committee is urging Medicare to immediately instruct carriers to pay
doctors for administering drugs to patients who can't administer the drugs themselves,
even if a physician does not normally inject the drugs. Carriers currently continue
to deny claims for drugs that are normally self-administered, but because of the condition
of the patient, cannot be.
DNA Specimen Collections Bill Awaiting
Floor Vote in Ohio House
House
Bill 427 - Sponsored by State Representative Ann Womer Benjamin (R-Aurora), the bill
expands the offenses for which DNA specimens are collected from delinquent children and
criminal offenders. The cost of such collections would be paid from Ohio Crime
Victims Reparations Fund under the control of the Ohio Attorney General. The bill
also revises existing law to allow non-medical practitioners to perform specimen
collections when the procedure is non-evasive. When the DNA specimen submitted is
collected by withdrawing blood or is an invasive procedure, a physician, registered nurse,
licensed practical nurse, duly licensed clinical laboratory technician, or other qualified
medical practitioner is to conduct the collection procedure for the DNA specimen and such
practitioners are to collect the DNA specimen in a medically approved manner. If the
collection is by swabbing for buccal cells or a similarly noninvasive procedure, a
qualified medical practitioner is not required to perform the collection. House Bill
427 is awaiting a floor vote in the Ohio House of Representatives.
Home medical equipment and supplies -
sales and use tax exemption legislation
House Bill 457: Introduced
by State Representative Geoff Smith (R - Upper Arlington), the bill will exempt from the
sales and use tax prescription home medical equipment and supplies that are paid for or
reimbursed by Medicare, Medicaid, worker's compensation, or another federal or state
program. Under current law, certain medical-related items at retail are exempt from
state and county sales and use taxes, as prescription drugs, insulin, certain diabetes
testing materials, exporting alfa for persons with end-stage renal disease, artificial
limbs and prostheses, crutches, wheelchairs and related equipment, hospital beds if
medically necessary, and oxygen and related dispensing
equipment if medically necessary. This legislation will allow exemptions to
purchases of other home medical equipment and related supplies if two conditions are
satisfied: the equipment or supplies are prescribed for human use by a person who is
licensed to prescribe
such equipment or supplies; and the cost of the equipment or supplies is to be paid
under Medicare,
Medicaid, workers' compensation, or another federal or state government program. The
bills exemption does not apply to eyeglasses and contact lenses. The bill moves the
language concerning the exemption for medically necessary hospital beds and oxygen to the
same section of the law pertaining to exempted medical equipment and supplies. The
bill has been referred to the Ohio House Ways & Means Committee.
House leaders seek funding for physician
payment changes
Two key leaders in the House of Representatives recently addressed a letter to HHS
Secretary Tommy Thompson to gather specific information before crafting legislation that
would change the formula that sets doctors' annual Medicare payment rates. Ways
& Means Chairman, Bill Thomas (R-Calif.) and Health Subcommittee Chairman, Nancy
Johnson (R-Conn.) are demanding specifics from Sec. Thompson after Thompson's testimony
before the House Ways & Means committee Feb. 6. Thompson indicated that any
upcoming changes to the physician fee schedule payment formula should be "budget
neutral," meaning, the costs of boosting doctors’ pay would have to be
offset by cost-cutting in other areas of the Medicare program.
Representatives Thomas and Johnson are asking Sec. Thompson to clarify two main
points; which "provider problems" (including changes to the conversion
factor formula used to update physician fees) merit congressional action; and a specific
list of savings recommendations that could provide the funding for these needed
fixes. The letter also identifies a number of recent recommendations made by the
Medicare Payment Advisory Commission (MedPAC) that, if implemented would cost about $174
billion over ten years. Using MedPAC's recommended reforms to the conversion factor
formula would cost $128 billion over that period.
The letter further states, "Clearly, we are not suggesting that we could afford, or
that we should implement, every MedPAC recommendation. However, MedPAC has
identified serious problems, such as significant and successive payment cuts to
physicians, which are unsustainable and require reform."
Legislation declares suicides to be
against public policy
House Bill 474: Sponsored
by State Representative Merle Kearns (R-Springfield), the bill will declare that assisted
suicides are against the public policy of the State of Ohio and would create the
Compassion Care Task Force to study and make recommendations on treatment of intractable
pain. It would also make assisting a suicide grounds for disciplinary action by the
State Nursing Board and by the State Medical Board. The bill will also provide that
a court of common pleas is to grant an injunction enjoining any action related to
assisting suicide if it finds there is reason to believe that the person enjoined is
preparing to assist a suicide, is in the course of assisting a suicide, or has assisted a
suicide. The injunction is to prohibit the person from assisting any suicide in Ohio
regardless of who is being assisted.
"Assisted Suicide" or
"assisting suicide" means knowingly doing either of the following, with the
purpose of helping another person to commit or attempt suicide: providing the
physical means by which the person commits or attempts to commit suicide; or participating
in a physical act by which the person commits or attempts to commit suicide.
The bill does
not: prohibit a person who has the authority to do so from administering,
prescribing, or dispensing medications or treatments to relieve a patient's pain or
discomfort, even if the medication or treatment may hasten or increase the risk of death
unless the medication or treatment is administered, prescribed, or dispensed to cause
death; prohibit or affect the use of continuation, or the withholding or withdrawal,
of life-sustaining treatment, or comfort care to a principal under a durable power of
attorney for health care or any other health care decision made by an attorney in
fact; or affect or limit the authority of a physician, a health care facility, a
person employed by or under contract with a health care facility, or emergency service
personnel to provide or withhold health care to a person in accordance with reasonable
medical standards applicable in an emergency situation.
Medicare increases cardiovascular surgery
payment and ambulatory blood pressure equipment
As
of April 1, Medicare will double its payment to $765.61 (par., national,
non-facil.) for cardiovascular surgery procedure (code 36533, insertion of an implantable
venous access device), under its first-quarter update to the 2002-physician fee
schedule. Medicare will also pay for monitoring ambulatory blood
pressure equipment used on certain patients. Under a recently activated code,
93784, Medicare will pay physicians $43.08 for ambulatory blood pressure monitoring,
including recording, scanning analysis, interpretation and report; $34.03 for only
recording (coding 93786), and $9.05 for physician review with interpretation and report
(93790).
Physicians treating Medicaid patients with
Prilosec must use generic version first
A recent decision from the Ohio Department of Job and Family Services' drug and
therapeutic committee requires physicians to treat Medicaid patients with the generic
version of Prilosec before using the brand-name equivalent. The new requirement is
expected to save the state's Medicaid program close to $33 million annually.
Legislation for State Pharmacy Board to
maintain dangerous drugs database
House Bill 475: Sponsored
by State Representative Tom Raga (R-Mason), the bill will require the State Board of
Pharmacy to establish and maintain a dangerous drugs database to monitor the use, misuse
and diversion of dangerous drugs. Each licensed terminal distributor of dangerous
drugs would be required to submit prescription information electronically to the State
Board of Pharmacy all of the following information: patient identification;
identification of the drug dispensed; quantity of the drug dispensed; date of the
dispensing; directions for use; serial number assigned by the terminal distributor;
terminal distributor's license number issued by the Board; and identification of the
prescriber. Each wholesale distributor's of dangerous drugs would be required to
submit purchase information electronically to the State Board of Pharmacy and such
information is to include the following information: purchaser identification;
identification of the drug sold; quantity of the drug sold; date of sale; and the
wholesale distributor's license number issued by the Board. The Board is to specify
the dangerous drugs to be monitored in its rules.
Peer review legislation under review in
Ohio House and Ohio Senate
Senate Bill 179 -
Sponsored by Senator Lynn Wachtmann (R-Napoleon), the bill continues to be heard in the
Senate Health, Retirement and Aging Committee. The bill will modify and update the
law regarding peer review committees. It establishes that proceedings and records
within the scope of peer review or utilization review functions of a review board,
committee, or corporation are to be held in confidence and are not to be subject to
discovery or introduction in evidence in any civil action against any health care entity
arising out of matters that are the subject of evaluation and review by the review board,
committee or corporation.
House Bill 488 - Introduced
by State Representative Jim Aslanides (R-Coshocton), the bill is similar to Senate
Bill 179, but adds to the list of documents not subject to discovery or introduction as
evidence: patient outcome data developed by health care providers and any patient
information provided to the Joint Commission on the Accreditation of Healthcare
Organizations; and provides that certain records of the Ohio Department of Health
containing data and information pertaining to patients are not to be considered public
records under the state's public record law. House Bill 488 has been referred to the
House Commerce and Labor Committee.
House Bill 3569: Proposals to change the
Geographic Practice Cost Index (GPCI), which takes into account local differences in costs
to doctors, are currently making their way through Congress. Rep. Doug Bereuter
(R-Neb.) asked the House Commerce Health Subcommittee to support the bill. The bill
will remove use of time, intensity and effort from the current formula. It will also
set a “floor” of 1.000 for the work GPCI in rural states and do so without
adjusting the GPCI in metropolitan areas. By slowly increasing the
“physician work adjuster” (the work GPCI’s) over four years, the bill will
increase payments to doctors and other providers in rural areas by $384.8 million by 2006,
if passed this year.
S. 1020 and HR 2483: (S. 1020) the Medicare Fairness in
Reimbursement Act of 2001 is sponsored by Sen. Tom Harkin (D. Iowa) and its companion bill
in the House (HR 2483) sponsored by Rep. Leonard Boswell (D-Iowa), also seeks to change
the GPCI formula. Sen. Russ Feingold (D. Wisc.) also sponsored a bill, Feb. 15,
which seeks to change the payment formula. The bill, Physician Wage Fairness Act of 2002,
has not yet been assigned a number. This legislation promotes equity in payments to
physicians and other health professionals under Medicare Part B by reforming the current
formula used to determine Medicare payment rates.
According to a recent program memo from the Centers for Medicare and Medicaid
Services, any Medicare carrier or intermediary, as of July 1, 2002, won’t cover
Non-Contact Normothermic Wound Therapy (NNWT). CMS issued a national coverage
decision for the therapy on the grounds that there is insufficient scientific or clinical
evidence to consider it reasonable and necessary under the Medicare
program.
The therapy uses a device that reported to promote wound healing by warming a wound to a
predetermined temperature. Carriers and intermediaries that currently cover the
therapy must deny claims for those services provided on or after July 1, as not medically
necessary. For dates of service prior to
July 1, contractors should use individual consideration.
New codes had been issued for NNWT effective 1/1/2002:
FDA approves Gleevec to treat GIST
The
Food and Drug Administration recently approved the cancer drug Gleevec (imatinib mesylate)
for treatment of gastrointestinal stromal tumor (GIST). Gleevec has been approved
under accelerated approval regulations and under the orphan drug program, which provides
financial incentives for drugs, developed to treat rare diseases. Accelerated
approval requires continued patient follow-up and information from additional studies to
evaluate whether Gleevec provides an actual clinic benefit, such as improved survival.
First approved in May 2001 for treatment of chronic myeloid leukemia (CML), Gleevec
works by blocking enzymes that play a role in cancer growth. In CML, Gleevec blocks
the abnormal tyrosine kinase enzyme that plays a major role in the disease. In GIST,
Gleevec blocks a different abnormal enzyme found on the tumor cells. As the abnormal
enzymes are largely confined to cancer cells, there is relatively little damage to normal
cells while cancer cells are killed.
In the study that was the basis for Gleevec's approval for treatment of GIST, 147 patients
with unresectable or metastatic GIST received daily oral Gleevec treatment. While no
patient had complete disappearance of cancer, 56 patients had reduction in tumor size by
50% or greater (partial response). Patients have not been followed long enough to
determine the duration of the responses.
Side effects, which are commonly reported, include edema, nausea, vomiting, diarrhea, skin
rash, muscle cramps, liver toxicity, and lower blood cell counts. Side effects are
generally mild to moderate in severity and rarely require that Gleevec doses be decreased
or interrupted for prolonged periods of time. Seven GIST patients had hemorrhage
into the tumor or gastrointestinal tract that required red blood cell transfusions.
Novartis Pharmaceuticals Corp., East Hanover, New Jersey, manufactures the drug.
House Bill 221 - Drug collection program
House Bill 221 - Sponsored by Rep. Kirk Schuring (R-Canton) will establish a drug repository program for the collection and redistribution of prescription drugs. The bill will require the Ohio Department of Health and the State Board of Pharmacy to: adopt rules that govern the program, including safety standards; set the maximum amount of a dispensing fee that may be charged by a pharmacy or nonprofit clinic (The fee will be paid through the state Medicaid program.); create a list of donated drugs that may be accepted; and develop eligibility standards (based on economic need) for recipients. Donated drugs must be unopened and in their original packaging to be eligible for dispensing. Individuals as well as hospitals and nursing homes will be able to donate drugs.
Medicare bill gains support in Congress
Progress toward halting the recent 5.4% cut in Medicare payments to physicians and
replacing the payment formula was shown at a House Ways and Means Committee hearing held
last week. HHS Secretary Tommy Thompson acknowledged that changes should be made and
pledged to work with the Committee on the matter.
American Medical Association's President, Richard F. Corlin, MD, said, "The AMA
commends Congress members for their efforts to correct the problem and to prevent payment
cuts from further threatening the success of the Medicare program. It is critical
that Medicare remains strong for this generation of seniors-and for generations to
come."
In a recent decision from the Centers for Medicare and Medicaid services, PET scans
used to gauge a patient’s myocardial viability will now be covered. PET scans
will be covered: as a primary or initial diagnostic study to determine myocardial
viability prior to revasularization; or following an inconclusive single photon emission
computed tomography (SPECT) test.
Medicare will also continue to cover SPECT as an initial testing, but will not pay
for SPECT when used as a follow-up to an inconclusive PET scan because of PET’s
“greater specificity,” according to CMS. Physicians won’t begin to
see payment for these services until CMS issues transmittals that
officially update both the Coverage Issues Manual and Medicare Carriers Manual. This
process may take a few weeks to several months to complete.