On July 29, 2019, the Centers for Medicare and Medicaid Services (CMS) issued the proposed Medicare Physician Fee Schedule (PFS) changes for the 2020 calendar year. 

A. Payment for evaluation and management (E/M) services

The E/M proposals will probably be the most complicated and will impact the most physicians. I will outline them here and then present a later Bulletin article dedicated specifically to E/M Services.

  • The CPT coding changes retain five levels of coding for established outpatient, but reduce the number of levels to four levels of E/M visits for new patients.
  • The code definitions are revised, as well as the times and medical decision-making process for all codes.
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Scenario #1. Your nurse is teaching an incontinent male patient to self-catheterize. His wife wants to record the encounter on her cell phone to “help” her husband perform the task in the future. The male nurse does not want to be recorded; he is concerned with his own privacy. Moreover, he is not sure that the patient actually wants his wife to film this. The wife is adamant that filming is necessary. The practice has plenty of other resources to assist the patient in completing this self-care task.

 

Scenario #2. You operate an OB/GYN practice. In your waiting room, a 12-year-old girl, whose mother is a patient of the practice, covertly snaps a photo of a 13-year-old patient when she is called back to the treatment area.

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The legal landscape for non-compete restrictions has been undergoing change. Legislatures and courts have been taking a renewed look at these restrictions, and in some cases aggressively limiting the type and scope of non-competes including those for physicians. While limitations are springing up, non-competes continue to be valid in most states. As a result, physicians must still be mindful and strategic when entering into contracts containing non-compete clauses. 

 

What is a non-compete?

 

Non-competes are a type of contract provision known as a restrictive covenant which can apply during employment and after employment ends.1 Non-competes are designed to restrict physicians from competing by precluding them from working for a competitor, or setting up a competing medical practice, usually for a specified time period after employment ends within a designated geographic area.

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A Federal law enacted nearly six decades ago to combat interstate organized crime has become the latest weapon in the government’s arsenal against healthcare fraud. The Travel Act, signed by President John F. Kennedy in 1961, prohibits interstate or foreign travel, or use of the mails or any facility in interstate or foreign commerce, for the purpose of distributing the proceeds of an unlawful activity, committing a crime of violence in furtherance of an unlawful activity, or to promote, manage, establish, or carry on an unlawful activity. It makes travel or the use of the mails or other interstate facilities in furtherance of a state or federal crime a separate federal offense.

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The Pennsylvania Commonwealth Court, on remand from the Pennsylvania Supreme Court, has again decided that the previously agreed termination date of the access provisions contained in the UPMC/Highmark Consent Decrees, i.e. June 30, 2019, is not a term subject to the modification provisions of those Consent Decrees, and is definite. The adjudication of the Commonwealth Court, attached hereto, discusses the history of the negotiation of the terms, especially the termination date, and confirms the Consent Decrees will expire on June 30, 2019.

PA vs. UPMC 6-14-19 Adjudication

The Pennsylvania Supreme Court decided Mitchell v. Shikora in favor of Pennsylvania’s physicians. 

All seven justices agreed and held that evidence regarding risks and complications of a surgical procedure may be admissible in medical negligence actions to assist in establishing the standard of care. In a dissenting/concurring opinion, however, two of the justices essentially opined that risks and complications evidence is not always germane and should be considered on a case-by-case basis.

PAMED action: On Dec. 1, 2017, the Pennsylvania Medical Society (PAMED) Executive Committee approved the filing of an amicus curiae brief with the American Medical Association (AMA) in the state Supreme Court case Mitchell v.

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Quality of care and efficiency are elusive concepts that third-party payors have been struggling to measure as they attempt to transition away from traditional fee-for-service reimbursement models. One recent local approach may impact both primary care physicians (PCPs) and specialists depending on how the payor uses the data it has gathered.

Highmark launched a program entitled “True Performance” in January 2017, stating that its goal was to improve healthcare quality outcomes for members, reduce annual increases in total healthcare costs and help physicians engage in patient care coordination and population health management. This approach measures quality and cost control both at the primary care and specialist levels.

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It’s no secret that Pennsylvania is ground zero in the national opioid crisis, and in fact Allegheny County is seeing more overdoses than the rest of the state. The Drug Enforcement Agency reported 4,642 total fatal drug overdoses in Pennsylvania in 2016, a 37% increase from the prior year. 2016 represented the third consecutive year in which the number of fatal overdoses exceeded all prior years. Drugs contributing to the crisis include heroin as well as prescription pain medications such as morphine, codeine, methadone, oxycodone, hydrocodone, fentanyl, and hydromorphone. 

 There is plenty of blame to go around.  Although street drugs like heroin remain a factor, opioid manufacturers are under increased scrutiny for their marketing practices.

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  1. Introduction

CMS has been actively promoting telehealth since 2000, when Social Security Act §1834(m) was adopted, and CMS has continued to expand the covered telehealth services. Pennsylvania is a late comer to the telehealth legislative field, but its proposed Telemedicine Act is a comprehensive payment parity and state licensing/enabling piece of legislation.

This article will provide summaries of both developments, and access to the foundational documents.

  1. New Telemedicine Act in Pennsylvania

A new Telemedicine Act is wending its way through the legislative process in Pennsylvania. Senate Bill 780 of 2017 has been unanimously passed by the Senate and referred to the House Professional Licensure Committee on June 19, 2018.

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