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Lame Duck 2013 Gubernatorial Action – Two Successes for Physicians

Lame Duck 2013 Legislative Action
(the Governor has 10 days to sign or pocket veto all bills signed at the end of the two year legislative session)

APN Scope of Practice

Despite our protest, both houses have passed a bill that would permit Advanced Practice Nurses to certify cause of death.  MSNJ opposes this bill because cause of death is in fact a medical diagnosis and should be provided only by a physician. Read MSNJ’s opposition letter. We are hoping for a pocket veto by the Governor, as he did two years ago when the Legislature rushed the bill through in an identical manner.

Pharmacy Vaccines

A3251, the bill allowing pharmacies to administer vaccines has passed both houses and awaits action by the Governor. The bill allows pharmacies to administer to patients 18 and older a vaccine (1) pursuant to a prescription, (2) in immunization programs authorized by a prescriber’s standing order for the vaccine or (3) in immunization programs and programs sponsored by governmental agencies that are not patient specific .  Under the bill, a pharmacist may administer an influenza vaccine to a patient who is seven years of age or older.  For a patient who is under 18 years of age, a pharmacist shall not administer a vaccine except with the permission of the patient’s parent or legal guardian.  For a patient who is under 12 years of age, a pharmacist shall not administer a vaccine unless pursuant to a prescription by an authorized prescriber.  A patient 12 years of age or older does not need a prescription for an influenza vaccine. MSNJ, NJAFP and NJAAP opposed this bill in its original form, but softened when the vaccines for children were limited to flu. This bill still represents a scope of practice expansion of concern to MSNJ.

Physician Loan Redemption

The Legislature passed S162, which establishes a Physician Loan Redemption Program. The bill awaits action by the Governor. MSNJ, along with NJ AFP and COTH worked expediently to improve the bill that was passed by the Senate in a skeletal, flawed form.  With our input, the bill now provides for redemption of eligible qualifying loan expenses for physicians who work for no less than four years at an approved site in the clinical practice of primary care or in the clinical practice of specialized care if the specialty is projected to experience a significant shortage.

Pain Medicine Restrictions

The Senate Budget Committee approved a bill that would limit insurers from using step therapy protocols for pain medication. Though the bill had already passed the Assembly, the Senate failed to vote on it, so it died at the end of the legislative session. MSNJ supported this bill and will work with legislators on the issue in 2014.  Our larger goal is to balance drug abuse reduction with proper access to pain medicine for patients who need it.

Medicaid Provider Rates

Both houses passed S2241, which would prohibit Medicaid managed care organizations from reducing certain provider reimbursement rates without approval from DHS.  The bill stems from an attempt by Horizon last year to slash home care provider rates after the Governor began moving most Medicaid services from fee for service to managed care. The insurance companies oppose the bill and stated that the bill would create a regulatory situation that is not used by any other state and that it will ultimately increase costs to the state. They also stated that the record of managed care in New Jersey is very good and the system is fair. MSNJ supports the bill, which awaits action by the Governor.

Higher Education Epinephrine Emergency Treatment Act

Both houses passed S2448, which allows public and independent institutions of higher education in New Jersey to develop a policy for the emergency administration of epinephrine to a member of the campus community for anaphylaxis when a medical professional is not available.  Institutions of higher education that develop such policies must designate an appropriately licensed physician, physician assistant, advanced practice nurse, or registered nurse to serve as the “licensed campus medical professional,” who will oversee the institution’s epinephrine administration and train designees in the administration of epinephrine via a pre-filled auto-injector mechanism.  The Secretary of Higher Education is to establish guidelines for the development of a policy for the emergency administration of epinephrine, which will be disseminated to the president of each institution of higher education.  In addition, the bill provides immunity for a licensed campus medical professional, a trained designee, and a prescribing physician for good faith acts or omissions committed in accordance with the bill’s provisions.   MNSJ supports this bill, which awaits action by the Governor.

State Trauma Plan

Both houses passed a bill that provides for the establishment of a formal Statewide trauma care system plan, which will include all health care facilities in the State providing care to injured patients in the State, to the extent that their resources and capabilities allow.  The Department of Health sought counsel with the American College of Surgeons Trauma System Evaluation and Planning Committee regarding the State’s trauma system.  This bill incorporates the recommendations that resulted from that interaction.  The commissioner is required to appoint a State Trauma Medical Director to oversee the planning, development, ongoing maintenance, and enhancement of the formal trauma system in collaboration with a multidisciplinary advisory body called the State Trauma System Advisory Committee (STSAC).  The STSAC is required to study the State’s trauma care system, collect data, and provide a report on the development of a formal Statewide trauma system plan.  The STSAC’s recommendations will provide the basis for the commissioner’s development of regulations implementing the plan.  The STSAC’s initial report, containing the formal Statewide trauma system plan, is due within one year.  Thereafter, the STSAC will be required to systematically review strategies to maintain and improve the State trauma system, submit an annual report to the commissioner and the director on its activities, and provide recommendations it determines are necessary to improve the State trauma system.  MSNJ is neutral on this bill, which awaits action by the Governor.

Breast Density

Both houses have finally passed the final version of A2022/S792, which now awaits action by the Governor.  MSNJ worked on this bill in great detail. The bill 1) requires insurance companies to cover certain screenings, 2) requires physicians to provide information to  certain patients regarding breast density and 3) requires study of breast cancer risk factors. Radiology facilities must distribute to certain patients a notice that reads as follows: “Your mammogram may show that you have dense breast tissue as determined by the Breast Imaging Reporting and Data System established by the American College of Radiology.  Dense breast tissue is very common and is not abnormal.  However, in some cases, dense breast tissue can make it harder to find cancer on a mammogram and may also be associated with a risk factor for breast cancer. Discuss this and other risks for breast cancer that pertain to your personal medical history with your health care provider.  A report of your results was sent to your health care provider. You may also find more information about breast density at the website of the American College of Radiology,” The bill states that it does not impose a standard of care obligation upon a patient’s health care provider.  The bill requires the Mandated Health Benefits Advisory Commission to prepare a report regarding the implementation and administration of the bill, including analyses of social, medical and financial impact. The bill requires the Department of Health, in conjunction with the Medical Society of New Jersey, to convene a work group to review and report on strategies to improve the dialogue between patients and health care professionals regarding risk factors for breast cancer and breast imaging options.  Though we may have improved the bill, MSNJ remains concerned about legislative interventions into the physician-patient relationship, in general, and notification mandates, specifically.

For Profit Hospital Reporting

After two years of amendments and negotiations, a bill regarding for profit hospitals is finally settled. The Governor rejected a bill in 2012 that would have required detailed financial reports by for profit hospitals, which were growing in numbers at the time.  On the last day of the two year session, the Legislature accepted the watered down rewrite of the bill by the Governor.  The bill now requires the Commissioner of Health to undertake a review of New Jersey’s hospital financial reporting requirements and shall report any findings and recommendations directly to the Governor no later than six months from the date of enactment of.  Specifically, the Commissioner shall examine the impact of, and make recommendations on, the following areas for all entities receiving Health Care Subsidy Fund payments from the State: Internal Revenue Service filings, Securities and Exchange Commission filings, and audited financial statements. The bill takes effect immediately.

Vaccines for Healthcare Workers

Both houses passed A2172, sponsored by Chairman Herb Conaway, which requires health care facilities to annually offer influenza vaccination to their health care workers and require the implementation of an annual influenza vaccination program in accordance with the current recommendations of the Advisory Committee on Immunization Practices of the federal Centers for Disease Control and Prevention and any rules and regulations adopted by the Commissioner of Health.  In lieu of receiving the vaccine at work, a health care worker would be permitted to present acceptable proof, including an attestation by the health care worker, of a current influenza vaccination from another vaccination source, or sign a written declination statement.  Each facility would be required to maintain a record of influenza vaccinations, retain each signed attestation and declination statement, and report to the Department of Health (DOH) the vaccination percentage rate of its health care workforce as part of its program or by other means as attested to by the health care worker.  Each facility would also be required to provide an educational component to its influenza vaccination program and annually evaluate the program with the goal of improving the rate of vaccination among its health care workers. The bill awaits action by the Governor, who pocket vetoed the bill last year.

Newborn Screenings

Both houses passed S2318, a bill that requires newborn infant screening for tongue tie. MSNJ was neutral on the bill.  The bill awaits action by the Governor.

Stillbirth Education

Both houses passed the  “Autumn Joy Stillbirth Research and Dignity Act,” which requires DOH to establish protocols for stillbirths and establishes a stillbirth research database. The bill awaits action by the Governor.

Pediatric Respite Care

Both houses approved A3558, which would provide for licensure of pediatric respite care facilities.  The facilities will provide end-of-life care for children up to age 21 with limited life expectancies or complex, life-limiting illnesses and support for their families, and employ interdisciplinary teams to assist in providing curative treatment when possible, palliative care, and supportive services to meet the physical, emotional, spiritual, social, and economic needs of children and their families during illness, as well as during dying and bereavement if no cure is attained. The bill awaits action by the Governor.

Drug Adherence Efforts

Both houses passed A1214, which requires the State Health Benefits Commission and the State Health Benefits Plan Design Committee to establish a three-year pilot program to provide benefits coverage to select employees with chronic health conditions using a value-based benefit design under the State Health Benefits Program (SHBP).  The value-based benefit design will target the following chronic health conditions: diabetes, high cholesterol, hypertension, and asthma. The coverage design will utilize explicit financial incentives to increase the employee’s interaction with appropriate health care providers, and encourage use of those health benefits that specifically relate to the employee’s chronic health condition.  The value-based benefit design pilot program will assign a participating employee to a pharmacist, who, in collaboration with the employee’s primary treating physician, will be responsible for coordinating medication therapy management services within the scope of the pharmacist’s license to practice pharmacy in the State of New Jersey.

The following financial incentives directly related to the diagnosis, care, mitigation, or treatment of the condition for which the employee is participating in the program will be provided:

(1) all tuition costs for any education class attended by the employee which provides medical condition self-management, recommended to the employee by the primary treating physician or assigned pharmacist;

(2) all costs for private visits with the employee’s assigned pharmacist;

(3) all costs for a medical device or supply deemed medically necessary by the primary treating physician or assigned pharmacist;

(4) all costs for laboratory testing; and

(5) waiver of all copayments for any prescription drug..

This bill is based on the well-known Ashville Project.  The bill will most likely be approved by the Senate and head to the Governor’s desk in lame duck.

Reconstructive Breast Surgery

Both houses passed S374, which grants a state sales tax exemption for services prescribed by a doctor in conjunction with reconstructive breast surgery. The procedures, currently subject to the 7 percent tax rate, are utilized to restore the appearance of the breast.  The bill addresses a current loophole where insurance providers cover the costs of the procedures but pass on the cost of the sales tax to the patient.  The bill awaits action by the Governor.

Medical Marijuana

Both houses passed A765, which requires that a registered qualifying patient’s authorized use of medical marijuana be considered equivalent to using any other prescribed medication and not the use of an illicit substance that would otherwise disqualify a qualifying patient from needed medical care, including organ transplantation.  The bill awaits action by the Governor.

Lame Duck 2013 Veto Action

Gender Changes on Birth Certificates

The Senate and Assembly have both passed A4097/S2876, which allows more people to change their birth certificates.  To obtain the amended certificate, a person would be required to submit:  1) a form provided by the State registrar of vital statistics and completed by the person’s licensed health care provider which indicates that the person has undergone clinically appropriate treatment for the purpose of gender transition, based on contemporary medical standards, or that the person has an intersex condition; and 2) a certified copy of a court order indicating the person’s name change, if the person has changed his or her name.  Under current law, a person is required to undergo sex reassignment surgery to receive an amended birth certificate.

Declarations of Death

The Governor signed a bill that removes the statutory authority of the Department of Health (DOH) and the State Board of Medical Examiners (BME) over medical standards governing declarations of death upon the basis of neurological criteria.  The bill requires that a declaration of death upon the basis of neurological criteria be made by a licensed physician professionally qualified by specialty or expertise, based upon the exercise of the physician’s best medical judgment and in accordance with currently accepted medical standards.  Joint DOH/BME regulations would no longer be needed to set forth currently accepted medical standards (including criteria, tests, and procedures) to govern declarations of death upon the basis of neurological criteria.  If they are used, the regulations concerning the declaration of death upon the basis of neurological criteria may not require the use of any specific test or procedure in the declaration of death upon the basis of such criteria. MSNJ supports this bill.

Self-Referral Laws

The Governor signed a bill which allows practitioner with financial interest in health care service providing lithotripsy to refer patients to that health care service if certain conditions are met. MSNJ and New Jersey urologists support this bill, which is a “clean up” to the reforms made to self-referral laws (the Codey Act) in 2009. Lithotripsy was left out of the exemptions in 2009.

2014 Medicare Physician Fee Schedule Issues

It was recently brought to our attention that Novitas has yet to post the correct 2014 conversion factor for anesthesia. We also have concerns that the ambulatory surgery center and vaccine fee schedules are not up to date. MSNJ asked Novitas about the timeline for posting the corrected fee schedules. We were advised that they are in the process of updating the anesthesia conversion factor on the website. We are still awaiting information on the ASC and vaccine fee schedules.

Novitas also advised MSNJ that it has loaded the regular 2014 fee schedule and is prepared to accept 2014 claims. Novitas is still working on posting the 2014 physician fee schedule in the file formats that may be imported into billing software. For now, Novitas is posting the files in a basic text only format to give practices an opportunity to review the 2014 fees. Likewise, these fees are not yet available in Novitas’ interactive fee calculator.

We believe that if you bill Medicare less than the 2014 fee schedule amount, Medicare will pay the lesser amount based on past experience. Likewise, in the past, Medicare would not reconsider claims that were paid at a billed amount that is less than the current Medicare fee schedule. We have requested clarification on this issue from Novitas since it appears from the web site that these fees are up to date and physicians may have charged less than what they are entitled to through no fault of their own. To avoid this issue, physicians may want to consider billing Medicare at the practice’s regular fee schedule to ensure that the amount billed is above the Medicare fee schedule amount. Another option is to hold claims until the correct information is posted on the Novitas website.

Please stay tuned to e-News for more information as it becomes available.

Medicaid Expansion Update—Enrollment Glitches

In November, the NJ Medicaid program advised that for individuals applying through the federal Marketplace there would be a lag time between federal and New Jersey approval. It further advised that it was able to handle the lag and that New Jersey had the second highest number of Medicaid enrollments of states using the federal Marketplace.

On December 20th, a story broke indicating that State officials said that those who applied for health coverage using the federal government’s website are actually unable to be enrolled because the State cannot process the eligibility information from the federal web site.  Per the article, “New Jersey Medicaid said in­formation it received from the federal insurance marketplace for about 25,000 residents who qualify for free health coverage from New Jersey’s program for the poor is ‘unusable.’  Their applications can’t be processed, and they can’t yet be enrolled for coverage that is supposed to begin on January 1.” See more.

But, MSNJ was recently informed that though,

“the flat file sent to NJ Medicaid by the federal Marketplace still is unusable…individuals who applied to the Marketplace between October 1 and December 31, who are verified as Medicaid eligible, will have their coverage backdated to January 1.

MSNJ immediately asked the Division for guidance and was given the following advice:

-This problem actually affects about 60,000 patients.

-Patients in this category will have letters from CMS stating that they are considered eligible by CMS. This letter only confirms eligibility; it does not place the patient in a plan or provide an ID number. Please be advised that CMS is telling patients that physicians will be able to confirm enrollment, but that is not the case.  The following advice that CMS is giving to patients is not accurate for enrollees in New Jersey:

“If you received a letter telling you that you have been enrolled in Medicaid or CHIP, but you haven’t received an enrollment card from your state agency or from one of its health plans, you should still be able to get health care services. If you need care, show your provider a copy of your eligibility letter. Your provider can verify your enrollment when you go for care.”

– As such, these patients will be treated much like presumptively eligible patients are already treated in New Jersey: they will be considered traditional Fee for Service (FFS) until the State has been able to confirm their eligibility and enroll them in a plan.

-True Medicaid HMO plan enrollment cannot be done until February 1st, which is the next enrollment period for Medicaid plans.

-While other states are asking patients to re-enroll directly with the State Medicaid program, New Jersey is not doing so.  NJ Medicaid will work to process the applications that came through the federal exchange as soon as possible.

View the CMS FAQs.

Bottom line for our members: You may wish to see a patient who presents a CMS letter, but there is no obligation to do so.  The clients will be considered traditional FFS until they select and are enrolled in an HMO, so a provider would bill Medicaid and get paid the FFS rate.  Once enrolled in a health plan, the client will have to go to a provider within that network.

UHC Terminations of Physicians in Medicare Advantage Plan

In mid-October UHC began terminating physicians in their Medicare Advantage plan. We immediately reached out to UHC when it appeared that the terminations were not isolated, but rather part of a   broad initiative. This week, UHC responded to some of our questions. We are disappointed that there was no warning of this termination initiative which appears to be a significant redesign of the UHC Medicare Advantage network, nationwide, and that information is sparse. For example, UHC would not tell us how many physicians in New Jersey were terminated or whether any specialties were immune to the termination initiative. Yet, UHC assured us that the network had been “tested and retested” for network adequacy and that there would not be a specialty access issue.

Network Adequacy: Obviously, MSNJ has no way of evaluating the impact on the network without more information. Therefore, we are asking all physicians who received termination letters, to provide us with information so that we can better evaluate network adequacy concerns. CMS has agreed to help us with that assessment.

Lack of Transparency: In addition to our network adequacy concerns, we are troubled that patients may be enrolling or re-enrolling in the UHC Medicare Advantage plan now, because seniors are in the middle of open enrollment, believing that they will be able to continue to be treated by physicians who are currently in the plan. UHC agreed to consider our complaint on lack of transparency on the 2014 network, given that seniors are enrolling now based on the current network. It is important to note that patients may change their network selection. CMS will honor the last selection made by the patient by December 7 when open enrollment ends.

Continuity of Care: We expressed our concerns about continuity of care and a disruption of established physician-patient relationships.  We urged UHC to carve out an exception for patients who wish to continue to see their current physician. UHC agreed to consider this request. We believe that patients should have the right to choose their physicians and must know their network status to make those choices.

Discussions with CMS: With a reopening of the federal government, we have contacted CMS about our network adequacy and continuity of care concerns. Our Region 2 office has been facilitating communication with the Region 9 office which is responsible for the UHC Medicare Advantage network. CMS Region 9 is charged with ensuring network adequacy and transparency for Medicare beneficiaries in their selection of a Medicare product. CMS has offered to test areas for network adequacy. Please provide us with information so that we can identify geographical and specialty areas of concern.

What to do: Last week we urged physicians who wished to stay in the Medicare Advantage network to appeal and provided suggestions for those appeals. We will continue to update our advice to members as more information becomes available to us.  Visit our web site for a list of Do’s and Don’ts, Appeal Suggestions, a template letter to inform patients of your imperiled status in the UHC Medicare Advantage Network.

Visit MSNJ’s UHC Webpage for more information.

Save the date for MSNJ’s UHC Termination Update webinar on Tuesday, October 29 at 7:00PM. Details to follow on

Medicaid Agrees to Retroactive Payment to January 1

Medicaid has agreed to pay certain resubmitted claims retroactive to January 1 in response to an MSNJ request. In January 2013, the Medicaid program required that all physicians who order, refer, or attend Medicaid beneficiaries, but do not bill for their services, enroll in the program as non-billing providers. The program confirmed to MSNJ that enrolling will not cause a physician to become a participating provider, but it will allow participating providers to be paid and will bring the program into compliance with the Affordable Care Act.

MSNJ subsequently received complaints from Medicaid participating providers who are not being paid due to the ordering/referring physician’s failure to enroll as a non-billing provider. In April MSNJ requested that the Medicaid program “consider making an exception that allows for resubmission of claims for payment once the non-billing provider has enrolled.”  The program recently advised that the treating physician may resubmit denied claims after the ordering/referring physician enrolls as a non-billing provider.

In 2013, non-billing provider enrollment will be retroactive to January 1, 2013. In 2014 and going forward, non-billing provider enrollment will be retroactive to one year prior to receipt of the enrollment application. For instance, a non-billing provider who submits an enrollment application on March 15, 2014 will be retroactively enrolled back to March 15, 2013. This is to allow participating physicians enough time to resubmit claims within the timely filing limit (up to one year).

MSNJ appreciates the Medicaid program’s response to our request.

Medicaid Primary Care Incentive Payment Attestation: Deadline Extended to April 30th

The Division of Medical Assistance and Health Services (DMAHS) confirmed that all physicians who qualify for the ACA enhanced payments to Medicaid primary care providers must complete an attestation form indicating board certification status in a primary care specialty. The deadline for submission of the ACA Self-Attestation Form for traditional fee-for-service Medicaid has been extended to April 30, 2013.

Physicians must submit the attestation by April 30th in order to be eligible for retroactive incentive payments going back to January 1, 2013. Physicians who submit the attestation after April 30th will receive incentive payments starting from the first day of the month the attestation was submitted. For example, if the attestation is submitted on July 17, 2013, then the incentive payments will apply to claims starting July 1st. An original signature is required; therefore the form must be mailed to: Molina Medicaid Solutions, P.O. Box 4804, Trenton, NJ 08650. Please note: the fee-for-service deadline does not apply to physicians in the MCOs; a deadline will be provided in a letter to the physician from the MCO.

Medicaid Primary Care Incentive Payment Attestation: March 15th Deadline for FFS Physicians

CMS clarified that all physicians who qualify for the ACA enhanced payments to Medicaid primary care providers must complete an attestation form indicating board certification status in a primary care specialty. The deadline for submission of the ACA Self-Attestation Form for traditional fee-for-service Medicaid is March 15, 2013. An original signature is required; therefore the form must be mailed to: Molina Medicaid Solutions, P.O. Box 4804, Trenton, NJ 08650. Fee for service physicians who do not file the attestation form by March 15th will not receive the retroactive payments. Fee-for-service physicians are also being “reminded of the importance of reporting their true usual and customary charges on these claims” to “ensure that adjustment payments for eligible claims can be processed correctly.” Please see the DMAHS newsletter for details. The fee-for-service deadline does not apply to physicians in the MCOs; a deadline will be provided in a letter to the physician from the MCO. Read more.