December 24, 2007

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Congress Enacts Medicare-SCHIP Package: Six-month Fix for Physician Fees
On Dec. 19, Congress passed legislation that would replace the scheduled 10.1% (actually 12 to 13% in Maine) cut in 2008 Medicare physician payments with a 0.5% increase through June 30,2008.  In the bill, which is expected to be signed by President Bush, Congress increased spending for Medicare physician payments by $3.1 billion.  It is disappointing that Congress failed to provide a longer-term solution that is paid for and that creates a pathway for the long-term replacement of the flawed payment formula based upon the Sustainable Gowuth Rate (SGR).  On the other hand, the 0.5% increase is better than a cut.  Details of the package are below.
Key Elements of 2007 Medicare-SCHIP Package

  • Replaces 10.1 percent cut with 0.5 percent increase through June 30,2008.  If Congress fails to take action before the end of next June, physicians will face a cut of approximately 10.6 percent
  • Authorizes additional 1.5 percent bonus for Medicare physician quality reporting initiative (PQRI activities) through Dec. 31, 2008
  • Extends floor for work geographic adjustment and physician scarcity bonus through June 30, 2008 (very important for Maine)
  • Budget offsets; removes $1.5 billion from Medicare Advantage stabilization fund; eliminates physician payment fund carried over from 2006 Medicare package and reduces payments for some Part B drugs
  • Extends therapy cap exceptions, pathology billing exception and premium assistance for some low-income seniors for six months
  • Extends SCHIP funding through March 31, 2009 (additional funding provided for current enrollment)

Key Elements NOT  Included in Senate Medicare Package  (Several items that were opposed by medicine were, fortunately, not included in this scaled down package.)

  • Electronic prescribing requirement or reductions in payments for paper scripts
  • Imaging provisions to reduce payments, mandate accreditation or establish appropriateness demonstration projects
  • Change direction of Medicare's Quality Improvement Organization (QIO) program to focus on enforcement and require changes in QIO Boards
  • Provisions to alter or supplant the role of the Relative Value Update committee and provide Medicare with authority to make arbitrary payment cuts for rapidly growing services
  • Create specialty specific expenditure targets

Challenge for the Future

      Passing legislation by the June 30, 2008 deadline with a narrowly divided Senate will be difficult.  In the next few weeks, the AMA will be working closely with state and national specialty societies to develop, coordinate and execute the 2008 campaign to provide a permanent fix to the annual challenge.


Volunteers Sought to Serve as Physician of the Day at State House
The 123rd Maine Legislature will re-convene for its Second Regular Session on January 2, 2008.  As has been the custom for several years, the Maine Medical Association and the Maine Osteopathic Association will provide a physician each day to provide emergency medical assistance should the need arise.  Physicians are needed in all specialties.  If you are able to give a few hours, usually in the morning, please contact Andrew MacLean at 622-3374, ext. 214 or via e-mail to

       "Being the Doctor of the Day at the Legislature is not only enjoyable, it is a great opportunity to meet our lawmakers.  It is not unusual for a lawmaker, even one who is not in your district, to seek out the doctor and ask an opinion about a particular bill.  The physician has great visibility and can have an impact on measures that are important to the profession." 

                                                                    Adele Carroll, D.O.    

                                                                     York County


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Deadline for Medicare Participation Decision Extended
CMS officials have confirmed that, in light of last week's Congressional legislative intervention, the Medicare Participation decision period is being reopened for an additional 45 days.  There was previously a deadline of Dec. 31, 2007 for physicians to decide if they would be "participating" or "non-participating" physicians for 2008; the new deadline to notify carriers of changes in participation status is Feb. 15, 2008.

The AMA has inquired as to whether the participation decision for 2008 will be binding for the entire year or only for six months, and whether there will be another participation period before the 0.5 percent payment update expires on June 30, 2008.  For now, CMS has indicated that participation decisions made by Feb. 15, 2008 will be binding for the entire year. 

See the "Medicare Participation Options" document at reflecting the extension of the deadline and the six-month payment update. [return to top]

Happy Holidays from the Maine Medical Association
The leadership and staff of MMA wish all our Weekly Update readers and their families a happy holiday and a happy and healthy 2008.  Whether members, non-member physicians, corporate affiliates, or friends, we appreciate your support and interest.  A special thank you to the physicians who provide the medical care for Mainers all year long and to those members who generously give of their time to serve as officers, committee members, or otherwise volunteer for MMA.

We sincerely hope that you have time over the holidays to enjoy your family and friends.  Our thoughts and prayers go out  to those soldiers and others who are unable to be with their families this holiday season. 

In order to give our employees an opportunity to spend more time with family and friends, the MMA office will be closed Dec. 24 and 25th.  We wish you all the Peace and Joy that you so richly deserve in the coming year. [return to top]

Maine Meets 8 of 10 Indicators for Pandemic Flu Preparedness
Maine is one of 14 states that met eight of the ten indicators based upon research and a report issued last week by the Trust for America's Health, a research group.  The  Trust measured the extent to which states have prepared for public health emergencies.  The report concluded that states have made significant progress since the terrorist and anthrax attacks in 2001.

The top scores went to Illinois, Kentucky, Nebraska, New Jersey, Pennsylvania, Tennessee, and Virginia.  Maine was among 14 states that met eight of the 10 indicators.  In addition to lacking an adequate plan for vaccine distribution, Maine was cited in the report for failing to have at least 14 Medical Reserve Corps volunteers for each 100,000 residents.  Dora Anne Mills, M.D., MPH, Director of the Maine Center for Disease Control and Prevention, said the two areas in which Maine fell short are being addressed and the state's performance should achieve adequacy within a matter of months.

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U.S. District Court Judge Woodcock Issues Preliminary Injunction in Maine Prescriber Data Law Challenge
On Friday, December 21, 2007, U.S. District Court Judge John A. Woodcock, Jr. issued an order granting the plaintiffs' (3 prescription drug information intermediaries or "data mining" companies) motion for a preliminary injunction against enforcement of L.D. 4, An Act to Amend the Prescription Privacy Law, enacted by the 123rd Maine Legislature earlier this year and scheduled to become effective on January 1, 2008.  While some portions of the new law will take effect, they are largely restatements of current law on patient information privacy.   

Judge Woodcock decided that the ability to "opt out" of pharmaceutical companies' use of prescriber data for marketing purposes, the principal distinction between Maine's law and the New Hampshire law struck down on First Amendment grounds in the U.S. District Court for the District of New Hampshire earlier this year and on appeal before the U.S. Court of Appeals for the First Circuit [IMS Health, Inc. v. Ayotte, 490 F.Supp. 2d 163 (D.N.H. 2007)], made no difference in the First Amendment analysis.  Acknowledging that the "opt out" provision made the question "closer," Judge Woodcock concluded, "[n]evertheless, at its heart, the Law operates by making illegal the transfer of truthful commercial information for particular uses and disclosures and, as such, the Law must withstand intermediate scrutiny" (a constitutional standard of review).  "Tracking the prescribed intermediate scrutiny analysis, the Court concludes that the provisions of the Maine Law that seek to restrict the use and disclosure of commercial information violate the free speech guarantee of the First Amendment."

It is likely that no further action will take place in the Maine litigation on these issues until the First Circuit Court of Appeals issues a decision in the New Hampshire case.

The Court recognized the patient's interest in the privacy of his or her prescription data, but concluded that L.D. 4 does little to further that legitimate state interest.  However, observers in organized medicine have been particularly interested in a recognition of the prescriber's interest in the privacy of their own data and, like the New Hampshire District Court, Judge Woodcock was very skeptical of any such privacy right.  He found that the Maine law provides Maine prescribers with a "limited right of confidentiality" and that "insurance companies, governmental agencies, quality assurance committees, utilization reviewers, and others have the right and responsibility to assess their prescribing patterns."  He found that "the Law only marginally advances the governmental interest in prescriber privacy."

Responding to one of L.D. 4's stated purposes of decreasing the influence of drug representatives, the Court stated, "[b]y far the most effective tool that the prescriber possesses to reduce the influence of detailers is to refuse to see them."   

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State Delays Announcement of Award of MaineCare Claims Management Fiscal Agent Project
On Friday, December 21, 2007, DHHS, OMS Director of Communications Patricia Negron issued a statement that the announcement of an award of the MaineCare claims management work, expected that day, would be delayed until this week.  The MMA understands that the top two contenders are Unisys and ACS. [return to top]

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