October 20, 2003

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HIPAA Transaction and Code Set Rules Now in Effect: Trainwreck Averted
The Oct. 16th deadline for compliance with the two-year old Transaction and Code Set Rule has come and gone so quietly that one can wonder what all the commotion was about. Because virtually all health plans followed the lead of CMS (Centers for Medicare and Medicaid Services) in continuing to allow claims to be processed in either the existing format or the new HIPAA compliant format, there was little if any problem on the 16th.
CMS decided to implement this contingency plan because it found its carriers and fiscal intermediaries were submitting "unacceptably low numbers" of compliant claims as of mid-September.  CMS intends to regularly assess its carriers and fiscal intermediaries' readiness to determine how long the contingency plan should stay in place.  In the coming weeks, the agency also will clarify parts of the implementation guides that have been confusing, review how payer companion guides are used and examine which payers are requiring unnecessary data elements.

Although Medicare has for several months been set to accept and pay electronic claims in the new format, only about 14% of claims received in the first two weeks of September were HIPAA-compliant. One week prior to the effective date, still only 22 percent of claims received by Medicare were transmitted using the new standard.  Note that the contingency plan will allow old formats in electronic form only.  Paper claims will still be prohibited for Medicare, except in certain circumstances such as physician practices with fewer than 10 full-time employees.

"We do not have statutory authority to provide an extension of the compliance date," HHS Deputy General Counsel Paula Stannard recently told a group of  health lawyers. "But we do have authority to exercise discretion in enforcement."  And although CMS and HHS can determine how long Medicare will accept noncompliant claims, they cannot compel private health plans to do the same.

In its enforcement capacity, CMS will not penalize covered entities - providers, health plans and clearinghouses - if they employ a contingency plan to process noncompliant plans after Oct. 16th.  However, to avoid a potential penalty, the covered entity may have to demonstrate that it made a good-faith effort to become compliant.

Stannard also reiterated that CMS's enforcement approach would be complaint-driven.  In other words, the agency would react to complaints it received and would rarely initiate investigations on its own.

HHS is continuing to work on a substantive enforcement rule for the transaction and code set rule and the privacy rule.  The agency has already issued a procedural rule but the substantive rule would define what is a violation, how to determine the number of violations and what affirmative defenses might be available to a covered entity.

The AMA's Top 12 Fictions & Facts About Medical Liability Reform: #9
FICTION #9:  For every malpractice claim filed against a physician, nearly 8 acts of malpractice are committed without a claim being filed.

Fact:  The trial bar has tossed around this statistic as if it were grounded in reality.  This extremely dated and misleading statistic is based on a Harvard study of New York hospital inpatients in 1984.  It was never intended to reflect the experience of patients in other care settings, other states or subsequent decades.  Furthermore, the same study found that negligence actually occurred in only one out of every six incidents of alleged malpractice, i.e., over 80% of claims were without merit.  The study concluded that "a substantial majority of malpractice claims filed are not based on actual provider carelessness or even iatrogenic injury," and that "in its initial filing stage, the tort system is even more error-prone than the medical care system." [return to top]

MMA Continues Advocacy on MaineCare PDL Issues
The MMA staff has discussed issues with the implementation of the new MaineCare Preferred Drug List (PDL) drug management program with many physicians and their staffs since implementation began on July 1, 2003.  We have related your stories to the DHS staff and we will continue to work with the DHS staff to improve the Department's communication with physicians about changes in the program and to reduce the administrative burden on practices.  We have heard several practices say that they have one FTE employee dedicated to handling the required prior authorizations.

On October 8, 2003, MMA EVP Gordon Smith, General Counsel Andrew MacLean, and Maine Osteopathic Association Executive Director Kellie Miller met with Jude Walsh, Bureau of Medical Services Director of Quality Improvement and Acting DHS Commissioner Peter Walsh to discuss the PDL implementation issues and physician concerns.  The DHS staff agreed to meet periodically between now and the end of the year to try to resolve the administrative and communication concerns.

Several physicians have expressed frustration with trying unsuccessfully to contact Timothy Clifford, M.D., the physician with primary responsibility for the PDL management at GHS Data Management, Inc., the third-party administrator hired by the State to run the PDL program.  Dr. Clifford's responsibility is to ensure that the prior authorization requests are processed in a timely manner in accordance with federal law.  If you have comments, complaints, or problems with the PDL process, please contact Jude Walsh, Director of Quality Improvement at jude.e.walsh@maine.gov or by phone at 287-1815.

The MMA staff will join representatives of the American Academy of Pediatrics - Maine Chapter at a meeting with DHS staff this Thursday morning to discuss issues of particular concern to pediatricians.

Ms. Walsh mentioned the following statistics or facts during our recent meeting with her or during briefings for the Appropriations and HHS Committees last week:

  • GHS has processed 25,000 PA requests since 7/1/03;
  • GHS is processing approximately 800 requests per day, up from 150 under the old PA program;
  • GHS is averaging 3 hours to process a request;
  • Any request received by GHS before 2 p.m. will be processed that day;
  • 22% of the PA requests are for psychotropic medications;
  • GHS is approving 79% of PA requests received;
  • Physicians have no appeal rights, but may assist patients with their appeals of PA denials;
  • Many more patients are pursuing their appeal rights through the DHS "fair hearing" process than under the old PA program;
  • DHS will review the results of the program after the first quarter of 2004 and will establish standards for exempting physicians from the PA process.

Also, NAMI - Maine is using its toll free line to collect data about adverse patient outcomes caused by the program's control of psychiatric drugs.  Soon you will see ads in the state's major newspapers alerting physicians and patients to the NAMI hotline.  If you wish to tell your experience with the PDL program to the MMA staff, please contact Gordon Smith, EVP, gsmith@mainemed.com, Andrew MacLean, General Counsel, amaclean@mainemed.com, or Charyl Smith, Legislative Assistant, csmith@mainemed.com.  You may reach us by phone at 622-3374. [return to top]

MMA Hospital Medical Staff Section to Meet Wednesday, Oct. 29th
The Hospital Medical Staff Section of the Maine Medical Association will hold a combined education program/business meeting on Wednesday, Oct. 29th at the Association office in Manchester.  The Section includes all elected medical staff officers in the state and there is no registration fee.  The educational program, for which two hours of CME will be available, will be presented by Mary Dufort from the Bureau of Medical Service Division of Licensing and Certification.  Ms. Dufort will discuss the proposed changes to the Medical Staff Chapter of the state hospital licensing regulations and will also discuss new Joint Commission standards of particular interest to medical staffs.  The presentation will begin at 3:00pm.  At 5:00pm. a light dinner will be served and a business meeting held concerning staff activities and issues around the state.  Some out of state guests will be present including Michael Vitek , staff to the AMA Organized Medical Staff Section in Chicago.

Many important medical staff issues are arising in hospitals across the state.  Help ensure that your staff is represented at this important meeting.  More information can be obtained by calling the MMA office at 622-3374 or through e-mail to gsmith@mainemed.com. [return to top]

U.S. Supreme Court Declines Review of Appeals Court Decision on Medical Marijuana
The United States Supreme Court last week declined to review a federal appeals court decision on medical marijuana leaving standing an opinion that allows physicians to discuss medical marijuana use with their patients.  The appeals court decision had come after the government appealed a Sept. 2000 permanent injunction entered to protect doctor's first amendment rights in this controversial area.  Maine is one of six states where voters have enacted laws permitting the medical use of marijuana under some circumstances.

The lower court ruling said the federal drug policy which threatened to revoke a physician's DEA license if the physician discussed any potential medical benefit from marijuana use improperly sought to punish physicians on the basis of the content of their communications and improperly condemned the expression of a certain viewpoint that medical marijuana likely could help specific patients.  The Ninth Circuit Court of Appeals stated in its opinion: "Such condemnation of particular views is especially troubling in the First Amendment context."  Being a member of a regulated profession, the court said, "does not, as the government suggests, result in a surrender of First Amendment rights.  To the contrary, professional speech may be entitled to "the strongest protection our Constitution has to offer." [return to top]

Androscoggin and Penobscot County Medical Societies Meet
Last week both the Androscoggin and Penobscot County Medical Societies met.  The Penobscot County Society met in Bangor with Maroulla Gleaton, M.D., MMA President as its guest.  Dr. Gleaton informed members and guests attending of the association's activities surrounding the implementation of Dirigo Health and of the plans for celebrating the Sesquicentennial at a Gala in Portland on Nov. 8th.  The meeting was chaired by County Society President Vickie Sidou, M.D.  Members voted to lower annual county society dues to $60.00.

In Auburn, Androscoggin Society members met at the new Hilton Garden Inn and heard from MMA EVP Gordon Smith.  Mr. Smith discussed the pending MMA Constitutional amendment, to be voted upon next September, which would de-link the county medical societies from MMA.  Such action would permit physicians to belong to a county society without belonging to the Maine Medical Association and vice versa.  The topic brought about a lively discussion and members were urged to attend next year's Annual Meeting to lend their vote to the issue. [return to top]

Get Tickets Now for Anniversary Gala
Tickets are going fast for the Association's Sesquicentennial Gala to be held in Portland on Saturday evening, November 8th.  Beginning with a reception at the Portland Museum of Art at 5:30pm, the event moves to the Holiday Inn by the Bay for a dinner and program at 7:30pm, followed by dancing to the Tony Boffa band until midnight.  Proceeds will benefit the Maine Medical Education Trust, a non-profit, 50l c 3 Foundation operated by MMA.  A silent auction will also be held to benefit the Trust.  Also featured will be a display of period artifacts and materials from the Archives of the Maine Medical Center Library.

The evening will feature the debut of a video presentation on the history of the Association through its one hundred fifty years.  Guests include AMA President Donald Palmisano, M.D., J.D., members of the AMA Board of Trustees, Governor and Mrs. Baldacci and members of Maine's Congressional delegation.

Tickets may be reserved by calling Susan Feener at MMA at 622-3374 or via e-mail to sfeener@mainemed.com.  Tickets can also be ordered and advertising in the evening's printed program purchased through the MMA website at www.mainemed.com [return to top]

Medicare Drug Benefit Conferees Extend Deadline to November 7th
Members of the House and Senate conference seeking compromise on a Medicare drug benefit bill that would also address provider reimbursement issues missed their self-imposed deadline of October 17th and set a new target of November 7th.  Observers of the negotiations in Washington still feel confident that an agreement may be reached before the end of the year.  The key issues remaining include proposals permitting reimportation of cheaper drugs from Canada, means testing higher-income beneficiaries, offering a tax credit to employers to entice them not to drop Medicare eligible employees from their plans, and resolving the provider reimbursement issues.

Recently, Senator Frist and Senator Grassley, the Senate chairman of the conference, told medical society representatives that they believe something will happen within the next 7-10 days and that "some brand of rural equity would be part of the bill."  Conferees are considering an increase in provider payments ranging from $25 to $28 billion in the next decade which would be the largest boost in rural health care spending in the Medicare program's recent history.  Approximately $15 billion would go to rural hospitals, $5 billion to physicians, and the rest to home health care companies and other providers of medical services in rural areas.  The Geographic Equity in Medicare Coalition, a group of 25 state medical societies including the MMA, has long advocated for increased rural health care spending, including a floor of 1.0 for the practice expense and physician work GPCI in the final bill. [return to top]

For more information or to contact us directly, please visit www.mainemed.com l ©2003, Maine Medical Association