October 23, 2006

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MMA Executive Committee Votes to Oppose TABOR

At its meeting on Oct. 18, the 28-member Maine Medical Association Executive Committee voted to oppose the ballot question involving TABOR (taxpayer's bill of rights), believing that it has the potential to injure health care in Maine.  While acknowledging that it was a close call and that many MMA members would probably support the initiative, ultimately committee members felt that the negative implications of the legislation outweighed the positive.

In opposing the bill, MMA joins the Maine Hospital Association, the Maine State Chamber of Commerce and several other organizations.

Question 1 on the ballot this November 7th asks, "Do you want to limit increases in state and local government spending to the rate of inflation plus population growth and to require voter approval for all tax and fee increases."

You can find the question and the actual legislation on the web at:  http://www.state.me.us/sos/cec/elec/pets02/pets02-1.htm.

Unlike the constitutional provision in Colorado, Maine's TABOR is statutory.  The next legislature could amend it, though the experience with Maine's term limits and public campaign financing systems suggests that the legislature is very reluctant to touch laws enacted at referendum.  Under TABOR, if the state government or any local governmental entity or school entity wishes to spend beyond the prescribed growth threshold (determined by inflation with a population adjustment), it must achieve a super-majority (2/3) vote of its legislative body and then a majority vote of the citizens at referendum.  The majority (11 to 7) of the MMA Executive Committee voting to oppose TABOR seemed to be concerned that health care costs frequently rise faster than the inflation rate and that health care spending constitutes such a large portion of the state budget that it is almost unimaginable that TABOR would not have an impact on health care spending in the state.  The majority also found persuasive commentary and data on the impact of TABOR on health care in Colorado presented by Steve Berman, M.D., a pediatrician and Professor of Medicine at the University of Colorado.

You can find information about the opposition to TABOR on the web at:  www.mecep.org.

You can find information about the proponents of TABOR on the web at:  www.maineheritage.com.

Public Health Advisory: Pertussis Outbreaks in Western and Southern Maine

Background:  Maine CDC has been notified of a possible cluster of suspected Pertussis cases in a high school in Portland, Maine.  In the past two months, Maine CDC was also notified of small clusters in some daycares in western and southern Maine.

Pertussis is a highly communicable, vaccine-preventable disease that lasts for many weeks. It is transmitted through direct contact with discharges from respiratory mucous membranes of infected persons. Symptoms include apnea, paroxysmal spasms of severe coughing, whooping, and post-tussive vomiting.  Complications include hypoxia, apnea, pneumonia, seizures and encephalopathy.


  1. Consider Pertussis when evaluating any patient with an acute illness characterized by cough >2 weeks in duration, or cough with paroxysms, whoop, or post-tussive vomiting. Infants may present with apnea and/or cyanosis.
  2. 2. Report known or suspected cases promptly to the Maine CDC at 1-800-821-5821.
  3. 3. Persons who exhibit symptoms consistent with Pertussis should be tested for Pertussis with nasopharyngeal swab. The state Health and Environmental Testing Laboratory (HETL) tests specimens by culture and polymerase chain reaction (PCR). Serologic testing through private laboratories has not been well standardized and should not be used.
  4. 4. Individuals with suspected Pertussis should be treated after a nasopharyngeal specimen is collected for testing. The federal CDC has recently updated guidelines for antibiotic treatment for Pertussis cases and contacts (MMWR; December 9, 2005. RR-14). The guidelines are available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5414a1.htm
  5. 5. Individuals with symptoms of Pertussis should be considered to be infectious and should not attend school, work, or daycare until they have completed 5 days of an appropriate antibiotic treatment. This is especially important for persons working in medical settings or with infants and young children.
  6. 6.  Providers should be aware that the Azithromycin regimen recommended by CDC for the treatment and prophylaxis of Pertussis is five (5) days in duration. A shorter course of Azithromycin is not suitable for the treatment of and prophylaxis against Bordetella Pertussis infections.  
  7. 7.  Children under age 7 should be up-to-date for Pertussis immunization. Also, consider vaccinating patients 11-18 years of age with the Tdap vaccine if they have had their latest Td booster more than 5 years ago.  In an outbreak setting, Tdap may be given 2 years after the last Td booster.

    In 2005 two tetanus toxoid, reduced diphtheria toxoid and acellular Pertussis vaccine (Tdap) products were approved: Adacel ® (Sanoffi-Pasteur) for use in persons 11-64 years old and Boostrix ® (GlaxoSmithKline) for use in adolescents 10-18 years of age.

    In June 2005 ACIP recommended the use of a single Tdap dose instead of the usual Td toxoid booster vaccine for protection of adolescents 11-18.  This recommendation if implemented widely should result in the reduction of the number of adolescent cases and also reduce the number of outbreaks that are seen each year.

  8. 8. For more information on Pertussis control measures, please go to www.cdc.gov/nip/publications/Pertussis/guide.htm and http://www.cdc.gov/nip/publications/Pertussis/2005_summary_updates.pdf

For More Information:  Maine Immunization Program 1-800-867-4775 [return to top]

Physician Data Restriction Program Available

It has been three months since the AMA launched the Physician Data Restriction Program (PDRP). More than 4,000 physicians have taken advantage of the opportunity to restrict pharmaceutical sales representatives from accessing their prescribing data. The AMA created the PDRP to address the growing concern among physicians about inappropriate use of prescribing information by pharmaceutical sales representatives, while ensuring these data continue to be available for evidence-based medicine and research.

While the AMA does not collect, distribute, or have access to physician prescribing data of any kind, it does offer individual physicians a voice in how their prescription data may be accessed and used. The program enables physicians to make informed decisions about whether they want to deny all pharmaceutical sales representatives access to their prescribing habits. It also provides a mechanism for physicians to register a complaint against a specific company or representative who uses prescribing data inappropriately. The program is available to all physicians.

Visit http://www.ama-assn.org/go/prescribingdata to restrict pharmaceutical sales representatives’ access to your prescribing data or to learn more about the PDRP.

Note: For security purposes, you will be required to use your AMA User ID and password to enroll in the program. If you do not have an AMA User ID, you can establish one easily by providing your state and date of birth. [return to top]

The Coding Center's Coding Tip of the Week

New Versus Established Patient

A new patient is one who has not received any professional services from the physician or any physician of the same specialty in the same practice within the previous 3 years.

  • AMA = Professional Services defined as “those face-to-face services rendered by a physician and reported by a specific CPT code(s).”
  • CMS = further defines as face-to-face services reportable by an E/M code

Questions? Call the Coding Center: 1-888-889-6597 [return to top]

Web-based Tool Available for MaineCare Providers

A web-based tool has been developed to assist MaineCare providers and staff in describing and documenting MaineCare claims payment issues.  The tool is available to providers at the internet link below and requires the Provider ID and Vendor ID to begin.  It also requires the provider to describe claims payment problems and to estimate the dollar value of the problems, by calendar year.

Providers wishing to discuss specific claims or issues should continue to contact the Billing and Information Unit at 1-800-321-5557, Option 8 or 287-3094.  If a provider wishes to discuss interim payments, they can call the interim payment staff at 287-5001.

<https://portalxw.bisoex.state.me.us/oms/iprtnew/login.aspx> [return to top]

MMA to Meet with ME CDC on Flu Vaccine Distribution: Your Input Sought

Next Wednesday, Nov. 1, representatives of the Association will meet with Dora Mills, MD, MPH and others in the Maine CDC office about MMA concerns regarding the distribution this year of flu vaccine.  The vaccine is being distributed by the state to community health centers, but not to private offices, although many private offices buy from the private market.

MMA would like to know before going to the meeting where Maine physicians are getting their flu vaccine, if in fact, they have any and would welcome member input on how you think the distribution is working.

Comments may be addressed to either Gordon Smith at gsmith@mainemed.com or President Kevin Flanigan, MD at flanmansvcp@pol.net. [return to top]

Dirigo Blue Ribbon Commission to Meet on Tuesday in Augusta

The Blue Ribbon Commission on Dirigo Health will meet tomorrow  (Tuesday) in Conference Room 105 in the Cross Office Building in Augusta.  Included on the agenda are the following presentations:

  1. Presentation of Information on the Uninsured Population in Maine (Beth Kilbreth, Muskie School of Public Policy, USM)
  2. Presentation of Requested Data on DirigoChoice Spending (Karynlee Harrington, Dirigo Health Agency)
  3. Presentation of State Employees'  Health Plan (Frank Johnson, Executive Director, Employee Health & Benefits, State of Maine)
  4. Presentation on Maine Quality Forum (Karynlee Harrington & Dennis Shubert, M.D., PhD, Executive Director, Maine Quality Forum)
  5. Presentation on Risk Management - Health Insurance Market (Steve Tringale, Hinkley, Allen & Tringale).

The prepared materials describing the most recent work on determining the general make-up of the uninsured population in Maine was presented on Monday afternoon to the Dirigo Health Agency Board of Directors.  With respect to adults between the ages of 18 and 64, there are an estimated 115,765 individuals who are uninsured, with the highest percentage being in the income braket of 300% or higher above the poverty level.  That fact will, no doubt, be the subject of considerable interest at the meeting of the study commission tomorrow.

Most of the reports presented to the Commission are available at www.dirigohealth.maine.gov [return to top]

Learn About Disability Determinations at the Next First Friday Seminar, Nov. 3, 9:00am at MMA

The Maine Medical Association will offer on November 3 at the Manchester office a seminar entitled "Social Security Disability - Then and Now".  The program will be offered from 9:00 am to Noon with a continental breakfast served and is accredited for 3 CME.  This program will define "disability" as used by the Social Security Administration, educate attendees on the Social Security "Listing" manual, discuss criteria of the listing and show attendees how to  access the Social Security website.  The presenters for this program are Lizabeth Jameson, RN who has been with the Maine Disability Determination Services since 1992, first as an examiner, then supervisor in 2000.  Also presenting, Dr. Richard T. Chamberlain a Medical Consultant for Disability Determination Services, he has served as Vice President and Chief Medical Officer for BCBS.  If you would like to sign up for this program please call Gail Begin at the MMA office at 622-3374 ext. 210 for the registration materials or visit our website at www.mainemed.com. [return to top]

MMA/OSA Program on Preventing Prescription Drug Diversion in York on Nov. 17

The Maine Medical Association along with the Office of Substance Abuse will be offering a program entitled "Preventing Prescription Drug Abuse" on November 17th from 4:00 - 7:00 p.m. at the York Harbor Inn, York Maine.  The featured speaker is Nathaniel Paul Katz, MD, President of Analgesic Research in Needham, MA.  Dr. Katz will provide a provider's perspective and share "best practices" in the area of pain control, addiction treatment and abuse prevention.  Also presenting are Chris Baumgartner, Coordinator of the PMP program at the Office of Substance Abuse, who will discuss the state's Prescription Monitoring Program and Gordon Smith, Esq. Executive Vice President of the Maine Medical Association who will explain the laws and regulations (state and federal), governing the sharing of prescribing information with other health professionals and law enforcement.  If you would like more information or registration materials for this program, please call Gail Begin at the Maine Medical Association at 622-3374 ext. 210 or visit us on our website at www.mainemed.com.
[return to top]

MMA Submits Brief in Key Screening Panel Case Before Law Court

In a brief of amicus curiae ("friend of the Court") prepared by Christopher C. Taintor, Esq., the MMA recently has weighed in on the Law Court's consideration of the admissibility of "split" panel findings in court.

Section 2855 of the Maine Health Security Act directs the medical malpractice pre-litigation screening panel to make findings by answering 3 questions:

  1. Whether the acts of omissions complained of constitute a deviation from the applicable standard of care by the health care practitioner or health care provider charged with that care (the "negligence" question);
  2. Whether the acts or omissions complained of proximately caused the injury complained of (the "proximate cause" question); and
  3. If negligence on the part of the health care practitioner or health care provider is found, whether any negligence on the part of the patient was equal to or greater than the negligence on the part of the practitioner or provider.

Section 2857 of the Act provides that if the panel findings are unanimous and unfavorable to the defendant on both the negligence and proximate cause questions, they are admissible in subsequent court action against the defendant.  If the panel findings are unanimous and unfavorable to the claimant on either the negligence or the proximate cause questions, they are admissible in subsequent court action against the defendant.

In Smith v. Hawthorne, 2006 ME 19, 892 A.2d 433 (Me. 2006), the Law Court found constitutional defects with the Superior Court's admission of the panel's finding in favor of the physician on the probable cause question without admission of the panel's finding in favor of the plaintiff on the negligence question.  You can find the Law Court's opinion in the first review of Smith v. Hawthorne (Smith v. Hawthorne I) on the web at:  http://www.courts.state.me.us/opinions/2006%20documents%20/06me19sm.htm.

This case is now going back to the Law Court on appeal by the defendant for consideration of which party has the right to control the admission of the panel finding evidence.  The following is the Summary of Argument from the MMA's amicus brief.

Summary of Argument

In Smith v. Hawthorne, 2006 ME 19, 892 A.2d 433 (Smith v. Hawthorne I), this Court held that a prelitigation screening panel's finding in favor of a physician on the issue of causation could not, consistent with Article I, Section 20 of the Maine Constitution, be submitted to the jury in a medical malpractice case unless it was put in "context."  The required "context," the Court said, was the panel's finding in favor of the patient on the issue of negligence.  The Court was not confronted with the question of whether these "split" panel findings would be admissible if offered by the Plaintiffs, over the Defendant's objection, and the lead opinion did not address that question.

On retrial the Defendant, Dr. Hawthorne, decided in light of the Court's decision that she would not offer evidence of the split panel findings.  The Plaintiffs argued that under logic of Smith v. Hawthorne I, they were entitled to submit the panel findings for the jury's consideration, and the Court agreed.  The Plaintiffs' argument and the Superior Court's ruling both appear to have been based largely on the concurring opinion authored by Justice Alexander, and specifically the final sentence of that opinion, which says:

"In our view, at least on remand, if either party wishes to offer the answers to one or more of the unanimous findings of the panel, either all should be admitted or none should be admitted."

As explained below, the Superior Court's reasoning and result are erroneous.  The concurring opinion in Smith v. Hawthorne I, in which only two Justices joined, is not part of and does not reflect the Law Court's holding.  In Smith v. Hawthorne I, this Court only prohibited, on constitutional grounds,  the admission of one part of a split panel finding divorced from its "context."  The Court did not say that the Smiths were constitutionally entitled to offer the split panel findings if Dr. Hawthorne elected not to offer them, and over her objection; indeed, the Court lacks the power to rewrite the statute in this fashion.  Therefore, insofar as the Superior Court interpreted Smith v. Hawthorne I are requiring the result it reached below, it erred.

Furthermore, the Smiths may be expected to argue that even if the ruling below was not required by Smith v. Hawthorne I, it is justified as a matter of statutory interpretation.  Although they have not previously advanced the position that the language of 24 M.R.S.A. sec. 2857(1)(C) allows either party to submit split panel findings, they may now argue, in light of the concurrence in Smith v. Hawthorne I, that the Court should adopt this interpretation of the statute.  And, because the statutory construction issue was not even briefed in Smith v. Hawthorne I - it was raised in the concurring opinion as a way to avoid the constitutional challenge - the Smiths might plausibly argue that it has not been conclusively resolved against them.  As explained below, however, the concurring  Justices' interpretation of section 2857(1)(C) is flawed because it disregards the plain language of the statute, it renders section 2857(1)(B) superfluous, and it is at odds with the purpose of the prelitigation screening panel process generally.  Accordingly, if the Plaintiffs now take the position that the full Court should adopt the interpretation of section 2857(1)(C) that was espoused in the concurring opinion in Smith v. Hawthorne I, the Court must reject it.

Attorney Taintor practices with the firm Norman, Hanson & DeTroy, LLC in Portland.  The MMA will keep you informed about the status of Smith v. Hawthorne II before Maine's Law Court. [return to top]

MMA Submits Brief in Workers' Comp Fee Dispute

In previous communications, the MMA has alerted members to efforts by the Maine business community to cut the conversion factor in the workers' compensation medical fee schedule (WCB Rule Chapter 5, Medical Fees; Reimbursement Levels; Reporting Requirements) and to institute a fee schedule for hospitals and ambulatory surgical facilities.  Also, several prominent employers in Maine routinely are reducing facility charges submitted by health care providers by as much as half, claiming that they have a right to determine the "reasonableness" of such charges.  One practice, Central Maine Orthopaedics, P.A. of Auburn, has countered these claims in litigation before hearing officers of the board.

Recently, one hearing officer asked the full board to consider the legal issues in a case involving Bath Iron Works Corp. and in a case involving Shaw's Supermarkets, Inc.  The principal legal issue is the interpretation of section 209 of the Workers' Compensation Act.  Health care providers argue that, in the absence of a fee schedule applicable to facilities, section 209 requires the employer/insurer to pay the provider's "usual and customary charge."  The insurers and others in the business community argue that "usual and customary charge" means the rate at which commercial third party payers in the state are reimbursing providers.  You can read the text of section 209 on the web at:  http://janus.state.me.us/legis/statutes/39-A/title39-Asec209.html.

The MMA and the Maine Hospital Association have submitted amicus briefs in support of CMO's position.  The Maine State Chamber of Commerce, the Maine Council of Self-Insureds, and the Worker's Compensation Coordinating Council have submitted an amicus brief on behalf of the business community's position.

The MMA will keep you informed about the status of this matter before the Workers' Compensation Board.  If you would like a copy of the MMA's amicus brief, please contact Andrew MacLean, Deputy Executive Vice President, at amaclean@mainemed.com. [return to top]

U.S. Medical School Enrollment Continues To Increase

The number of students enrolling in medical schools in the United States increased in 2006 for the second consecutive year, with 17,400 first-time enrollees—a 2.2 percent increase over 2005. According to the Association of American Medical Colleges, 2006 was the fourth consecutive year in which the number of applications submitted increased; there were more than 39,000 applicants, compared to 37,373 in 2005. One in five medical schools reported a 5 percent or higher increase in the number of entering students. With a number of studies predicting a future shortage of physicians, some experts see the increase as an encouraging trend. For more information:


  [return to top]

Panel Recommends Extending HIPAA Privacy Protections To All Personal Health Records

An advisory panel to the Department of Health and Human Services recommends extending Health Insurance Portability and Accountability Act (HIPAA)-style privacy protection to all personal health records. Currently, HIPAA applies primarily to doctors, hospitals and health plans, but does not protect health information data exchanged among non-covered entities. The panel also recommended allowing a patient’s or physician’s preferences concerning specific data to be extended across a nationwide health information network (NHIN). For example, a patient could request keeping mental health records confidential, no matter who has a copy of the patient’s data. The recommendations are part of a draft report on functional requirements for the establishment of the NHIN. Finally, the report supports a series of policies to ensure that patients can be accurately matched to their medical records, although it would not require a national system of health identification numbers. For more information:


A PDF file of the draft report can be downloaded here:

http://www.ncvhs.hhs.gov/061003p1.pdf [return to top]

Adverse Childhood Experiences & Resilience- Open Forum Nov. 4

Open Forum: From Risk to Resilience to Practice: ACEs & Resilience
November 4, 2006, 8:15 am to 4:30 pm Black Bear Inn, Orono, ME

Every now and then there is a “once in a lifetime” opportunity that presents itself as a benefit to you personally, your work and your community. Now, five reasons to attend this event:

  1. Hear Dr. Vincent Felitti present scientific data that he and the Center for Disease Control have published in over 30 peer review articles linking ADVERSE CHILDHOOD EXPERIENCES (ACEs) and the health/mental health outcomes of teens and adults
  2. Hear Dr. Emmy Werner (by speaker phone) and Dr. Robert Blum present their research on RESILIENCE: its role in preventing ACEs and reducing risk of harmful outcomes
  3. Appraise newly developed ACEs and RESILIENCE questionnaires
  4. Identify community allies, plan prevention of ACEs and building Resilience, infancy through adulthood
  5. Carry back Three Key Messages to others in your community
    • There are 10 ACEs which harm infants, children and teens. Adults appear to be helped, not harmed, by recalling their own ACEs.
    • Building resilience, good parenting, good teaching, and preventing ACEs and their harmful impact may be one in the same, from birth throughout adulthood.
    • Hundreds of billions of dollars are spent annually paying the costs of chronic disease in adults, in many cases resulting from the ACEs they experienced decades ago. Only a small fraction of that sum is spent to prevent ACEs in the current generation, especially years one through three.

The long term cost of DOING SOMETHING, starting the very first year of life is effective and relatively inexpensive by assisting parents, not blaming them. Hear about accessible and affordable opportunities for our communities at the Forum. Talk about and propose options that might be feasible right now in your own work.

The cost of "doing little or nothing" about ACEs prevention is very high. Why: ACEs occur in approximately 60% of the population in every community. ACEs hurt each affected child, affect their family members, have lifelong consequences, and are costly to communities, schools, businesses, and our entire state. Given the data, it is no longer ethical to ignore ACEs prevention or building protective Resilience factors from the first year of life.

The cost of ACEs does not go away. For many, the cost accumulates year by year given that ACEs have been proven to be a major contributory factor in alcohol abuse, smoking, family violence, depression, illicit drug use, obesity, sexual promiscuity, and suicide.

The consequences of failing to prevent ACEs means that individuals and society pay dearly in broken health, broken hearts, broken families, broken lives, and economic outflow.

Dr. Felitti's presentation provided for me a paradigm shift in my medical thinking unmatched by any other presentation in my now 50 years since medical school entry. I'm expecting that others will gain the same exciting insights…. (Dr. Burtt Richardson, Oct 2006.)

CME: CME 6.5 units; Certificates of attendance for non medical professionals will be available.
Registration Fee includes lunch: Non-physicians $85;
(Pediatric Chapter members $100; Physician Non-Chapter members: $125)
SCHOLARSHIPS are AVAILABLE if funds are not accessible through your coalition, your community, local personal sponsors (e.g., walk-a-thon), or your own personal account.

SCHEDULE: In keeping with the pace of a pediatrician's day, the Forum starts early and "packs it in," from 7:30-8:15 am registration to 4:30 pm. Opening by First Lady Karen Baldacci and Attorney General Steve Rowe, a full schedule of speakers, interactive discussions, presentations of ACEs and Resilience questionnaires, Family Networks, and Community Planning. Closing remarks by Dr. Felitti and Dr. Werner 3:30 pm, networking and planning 3:30-4:30 pm.

SPONSORS TO DATE: Maine Chapter American Academy of Pediatrics; Mid-Maine Child Trauma Network (MEGeneral/HealthReach Network); Governor's Children's Cabinet; Home Visiting Program, Early Childhood Initiative, and Maternal & Child Health Program of DHHS; United Way of Eastern Maine; and the Bingham Program.

Questions: Contact Gladys 377-2427; gladys.richardson@gmail.com, or Aubrie Entwood (agridleyentwood@aap.net). [return to top]

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