2017 Announcements

CMS extends Meaningful Use attestation deadline
The Centers for Medicare & Medicaid Services (CMS) has extended the date eligible professionals (EPs) have to register and attest to meeting the Meaningful Use EHR Incentive Program requirements for 2016. EPs now have until Monday, Mar. 13, 2017, at 11:59 p.m. PT to register and attest in order to avoid the 2018 penalty. Those participating in the Medicaid portion of the EHR Incentive Program should refer to your state's deadlines for attestation information. Note that EPs eligible to participate in both the Medicare and Medicaid EHR Incentive Programs must attest to meeting the criteria for one or the other to avoid the 2018 Medicare penalty. The Medicare Meaningful Use program for physicians sunsets after this reporting period. EHR use will continue to be measured under the Merit-Based Incentive Payment System (MIPS). The MGMA Meaningful Use Resource Center includes links to the CMS 2016 registration and attestation website, as well as helpful MGMA and CMS resources. 

Anthem-Cigna Merger Blocked
In a significant win last night for organized medicine and the nation’s patients, federal judge Amy Berman Jackson blocked the proposed Anthem-Cigna merger. The judge found that the merger would have substantially lessened competition for the sale of health insurance to national employers resulting in higher prices and diminished prospects for innovation. In a historic, stunning affirmation of the position urged by the AMA and consequently adopted by the government, Judge Jackson concluded that an enhanced ability to coerce physicians to accept lower reimbursement is not a merger efficiency defense.  She determined that it would not benefit consumers and “would erode the relationship between insurers and providers” and “reduce the collaboration” that is essential to innovation in payment and delivery.

The decision affirms the position urged by AMA and the 17-state medical association antitrust coalition members, particularly our partners in CA, CO, CT, GA, FL, IN, ME, MO, NY, OH, and VA. The AMA/coalition position was adopted in the plaintiffs’ complaint, and the judge rejected the insurers’ arguments that lowered physician reimbursement would benefit consumers and justify the merger.

The AMA and its coalition partners worked tirelessly to oppose this merger: updating our gold standard Competition in Health Insurance: A Comprehensive Study of U.S. Markets; preparing detailed market analyses specific to the proposed Anthem-Cigna merger; sending comprehensive, evidence-based advocacy letters to the US Department of Justice (DOJ) and state regulators after the merger was announced in July 2015; engaging like-minded stakeholders like the American Hospital Association and various patient coalitions, as well as the National Association of Attorneys General; conducting extensive physician surveys to gauge physician concern about the merger and presenting the DOJ and state regulators with compelling survey results; testifying in or submitting memoranda in various state insurance department hearings and/or attorney general investigations, and making that, and other evidence and testimony, available to the DOJ and state regulators; securing outside experts to buttress our arguments and strip down those of the insurers -- all demonstrating how the merger would harm patients and physicians.

This victory is the result of our relentless, focused and collaborative advocacy. We want to take this opportunity to thank all of our coalition partners for helping us achieve this historic victory on behalf of our physician members and their patients. The impact of blocking both mega-mergers cannot be overstated. Our collective work on both mergers is, without a doubt, a model for future advocacy success.

Senate Confirms Price As HHS Secretary
The New York Times (2/10, Pear, Kaplan, Subscription Publication) reports that “the Senate early Friday approved the nomination of Representative Tom Price to be secretary of health and human services.”

The AP (2/10, Fram) reports, “Until recently chairman of the House Budget Committee, Price has proposed repealing” the Affordable Care Act “and replacing it with tax credits, health savings accounts and high-risk pools for sick, costly consumers.”

USA Today (2/10, Hjelmgaard). points out that “senators confirmed his nomination by a strictly party-line 52-47 vote.”

AMA will work with Congress and the Administration to improve care, achieve better outcomes for patients, and reduce regulatory burden on physicians. AMA recently urged Congressional leaders that before any action is taken through reconciliation or other means that would potentially alter coverage, they should lay out for the American people, in reasonable detail, what will replace current policies, so patients and other stakeholders should be able to clearly compare current policy to new proposals so they can make informed decisions about whether they represent a step forward in the ongoing process of health reform. A core principle is that any new reform proposal should not cause individuals currently covered to become uninsured. See the AMA website to learn the latest about our ongoing efforts. (courtesy of the AMA).
Repeal the Independent Payment Advisory Board 

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New Jersey Residents Who Are Current/Former Patients at Tomorrow’s Medicine in New York Encouraged to Get Tested for Hepatitis and HIV
The New York State Department of Health is advising current and former patients who received intravenous infusions, injections or blood draws at Tomorrow Medicine’s two Westchester County locations to get tested for hepatitis B (HBV), hepatitis C (HCV) and human immunodeficiency virus (HIV), which is spread through exposure to blood. 
Tomorrow’s Medicine is at the center of a hepatitis C investigation being conducted by the New York State Department of Health and the Westchester County Department of Health. Four patients from the practice with HCV were identified during an ongoing investigation. The investigation revealed that some patients might have become infected with HCV due to lapses of infection control and concerns regarding the preservation, preparation, handling and administration of medication. The practice’s patient list includes residents from multiple states, including New Jersey. The medical license of Tomorrow’s Medicine owner, Dr. Timothy Morley, has been suspended and he has been ordered to stop practicing medicine, pending a formal hearing, by the New York Health Commissioner.
Tomorrow’s Medicine has two locations:
  • 37 Moore Avenue, #3, Mount Kisco, NY
  • 1133 Westchester Avenue, White Plains, NY
Patients should also be tested if they received services at a previous medical practice known as Advanced Medicine of Mount Kisco.
Individuals who are current or former patients of Tomorrow’s Medicine and received intravenous infusions, injections or blood draws are recommended to contact their health care provider to get tested. Testing is also available at no cost for patients through the Westchester County Department of Health (NY) by calling (914) 995-7499 Monday through Friday from 9 a.m. to 4:30 p.m. Representatives from the New York State Department of Health are available to answer questions at 1-888-364-4902, Monday through Friday from 9 a.m. to 5 p.m.


Are you interested in volunteering in Texas? Please contact the Texas Disaster Volunteer Registry or the NJ Red Cross.
Texas Disaster Volunteer Registry

The Texas Disaster Volunteer Registry allows volunteer health professionals and lay volunteers wishing to support medical preparedness and response to register as a responder with participating organizations to provide services during a disaster or public health emergency. The registration system will collect basic information about you and your professional skills. To register you will need to click on the "Register Now" button to begin the registration process. It will allow you to register with a group that is already an established responder organization. If you have completed the registration process or would like to return to continue or change information you will need to click the Log In button using the password and user name you selected when you created your account.
The Texas Disaster Volunteer Registry web site is maintained by the Department of State Health Services but is used as a local volunteer registration and management tool for local responder organizations. The Volunteer Registry provides a secure database with readily available, verifiable information regarding each volunteer's identity, qualifications, training and experience. The Registry helps provide a timely, effective response to disasters and ensures the appropriate match of a volunteer's skills and abilities with the needs of the emergency situation.

The New Jersey Red Cross
Christy Hodde
(908) 273-2076

The President recently directed federal agencies to use all appropriate emergency and other authorities to respond to the crisis caused by the opioid epidemic.  The federal InterAgency Board (IAB) publication “Recommendations on Selection and Use of Personal Protective Equipment and Decontamination Products for First Responders Against Exposure Hazards to Synthetic Opioids, Including Fentanyl and Fentanyl Analogues” establishes guidance for personal protective equipment selection and use, decontamination, detection, and medical countermeasures for first responders who may be exposed to opioids in the course of their occupational activities.

Given these events, knowing that we’re two weeks away from the Labor Day weekend and closing in on some important anniversaries (such as 9/11), and understanding that we’ve yet to enter the peak of our “hurricane season,” now is the opportune time to review emergency plans, policies, and procedures; test equipment; check supplies and other resources; reinforce organizational structures and emergency job responsibilities; and, drill/exercise to test capabilities.  Attached you will find an updated version of our “Preparedness Briefing” with links to resources critical for your emergency preparedness and operations; also attached are the two posters we’ve published on initial steps during emergency operations, and considerations for different types of emergencies (hard copies are available by emailing [email protected]).
You should also be reminded to be on alert for any unusual disease activity.  NJDOH reviews data from emergency departments statewide to facilitate the recognition of disease outbreaks.  However, the NJDOH always relies on clinicians to report by telephone those conditions that require immediate notification, including any suspected cluster or outbreak of disease or any unusual clinical presentation.  Report immediately notifiable conditions, or other issue of public health concern, to the local health department (LHD) where the patient resides, or to the local health department of the event or outbreak.  If LHD personnel are unavailable, healthcare providers should report the case to the NJDOH Communicable Disease Service at 609-826-5964, (normal business hours) or 609-392-2020 (weekends, evenings, and holidays).
Lastly, The American Hospital Association (AHA) recently conducted a comprehensive study on the financial impact of violence to hospitals and healthcare systems, the first research of its kind. It studied both community or public violence as well as in-facility violence, prevention and preparedness costs, and post-incident costs.  The AHA estimates proactive and reactive violence response cost hospitals and health systems in the United States approximately $2.7 billion in 2016 (PDF, 341 kb), broken down as such:
  • $280 million in preparedness and prevention addressing community violence.
  • $852 million in unreimbursed medical care for victims.
  • $1.1 billion in prevention of violence within hospitals.
  • $429 million spent as a result of violence against hospital employees.
These numbers are further broken down in the study results. The AHA presents this data to highlight the enormity of the problem and the demands placed on the medical community and make the information available for further research and action; it does not make any recommendations on addressing the issues.

To download emergency posters click here and here 

To download preparedness briefing click here



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Tip of the Week
Question: Just How Seriously Do the Authorities Treat Indiscriminate Prescribing of CDS?
Answer: Very seriously. In an opinion issued on April 27, 2017 in the case of United States v. Enmon, No. 14-13258, slip op. (11th Cir. Apr. 27, 2017), the United States Court of Appeals for the Eleventh Circuit upheld the conviction, and twenty (20) year federal prison sentence, of a Georgia physician convicted on 92 counts, including conspiracy to unlawfully dispense controlled substances, unlawful dispensation of controlled substances, and money laundering. The physician was prosecuted based upon his nine-month participation in two pain clinics which had purportedly operated as “pill mills.” On appeal, the physician argued the trial court plainly erred (a) by instructing the jury that his good faith belief that he was acting in the usual course of professional practice was irrelevant and (b) by giving the jury a general verdict form. Second, he challenged the trial court’s decision to allow him to represent himself at trial and at sentencing. Third, he claimed the government presented insufficient evidence regarding the standard of medical care in Georgia. Finally, he argued that his twenty (20) year sentence was substantively unreasonable. The appeals court rejected all these arguments. The doctor’s practice consisted of writing prescriptions, at the cost of $275 per visit, after performing only “cursory” examinations of patients, and that long lines of people waiting for prescriptions formed outside his clinics every day. The Court rejected the physician’s claim that he had a subjective belief he was practicing within the usual standard, and held that such determination must be made by an objective standard.  Under an objective standard, the evidence supported the conclusion that the physician was not operating within the usual course of professional practice in prescribing the large amounts of CDS in the manner in which he had done so. Although the facts of this case were particularly egregious, both federal and state criminal enforcement authorities take the prescribing of CDS extremely seriously indeed, and practitioners need to be particularly careful to dispense CDS only in cases where they are actually medically necessary, as determined by a thorough and proper medical examination of the patient.

Weekly Charting Tip: OSHA, the Occupational Safety and Health Administration is quite alive and well when it comes to enforcing its regulations against physicians.  The seven rules that apply to physicians involve:

  1. Having a plan to reduce exposure to bloodborne pathogens.
  2. You must have a safety plan for exiting your office.
  3.  You must have a plan for hazard communication; this involves hazardous chemicals of any kind. There must be a written list along with several other requirements.
  4. Electrical safety rules must be observed.
  5. New York does not require reporting occupational injuries and illnesses. There is a federal exemption for medical office reporting.
  6. Every practice must display an approved OSHA poster showing the employee rights to a safe working environment.
  7. For practices that use x-rays and imaging services, there are rules, such as radiation exposure badges.

 Do NOT ignore the OSHA requirements as the fines may be substantial. Until next week, Larry Kobak, Esq.
 If you have any questions, please contact Kern Augustine, P.C. at 1-800-445-0954 or via email at [email protected].

 Weekly Charting Tip: March 21, 2017

In order to comply with three different federal laws, it is very important that you document the fair market value (FMV) and commercial reasonableness of the “arrangement” at issue. Fair Market Value is “the value in arm’s length transactions, consistent with the general market value”. In other words, if I were a stranger, and I wanted a similarly situated arrangement, what would it be worth? There are professional people who actually will prepare a FMV report for you. This is the safest way of doing it. What do rents go for in the same area for a similar amount of space? You can factor in closeness to public transportation, parking lots and the like. Commercial reasonableness encompasses both the series and payment for them. Is it reasonable to pay a neurologist say $300,000 for the 40 hours a week you are offering? That depends on the location and what is expected of the neurologist. Areas with many neurologists tend to offer less. Rural areas may offer more. Think supply and demand. If a deal is too good to be true, it probably is!
Kern Augustine, PC - Stat Law, 3/21/17

Summary of American Health Care Act 
Click here to download a summary of the American Health Care Act  as of March 2017 

Weekly Charting Tip: March 8, 2017
Every practice should have a written employee handbook. It should include your office policy as to dress, use of drugs/medication, sexual harassment, vacation, work hours, holidays, discipline and any other office policy you want memorialized. Then, follow it, review it with your staff on a regular basis! If used, and followed, it will protect you from all sorts of employee litigation. Your word to the wise!    -Larry Kobak, Esq.

DEA Reverses Announced Change to Registration Renewal Process
The Drug Enforcement Administration (DEA) has announced that effective January 1, 2017, the DEA is changing its long-standing policy of allowing a grace period for registrants who failed to file a timely renewal application. The DEA reversed its decision and posted a notice that it is retaining its current policy and procedures, with one minor change, regarding registration renewals. The revised announcement states the following:
Starting January 2017, DEA will no longer send its second renewal notification by mail. Instead, an electronic reminder to renew will be sent to the email address associated with the DEA registration. At this time, DEA will otherwise retain its current policy and procedures with respect to renewal and reinstatement of registration. This policy is as follows:
  • If a renewal application is submitted in a timely manner prior to expiration, the registrant may continue operations, authorized by the registration, beyond the expiration date until final action is taken on the application.
  • DEA allows the reinstatement of an expired registration for one calendar month after the expiration date. If the registration is not renewed within that calendar month, an application for a new DEA registration will be required.
  • Regardless of whether a registration is reinstated within the calendar month after expiration, federal law prohibits the handling of controlled substances or List 1 chemicals for any period of time under an expired registration.
You will receive an update when more information is available.
Repeal the Independent Payment Advisory Board 

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