Keystone Physician Magazine - Winter 2017

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For more information about PAFP membership, visit www.pafp.com Download the ‘PAFP Connect’ mobile app today!

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Winter 2017

David O'Gurek, MD PAFP President-Elect and Reading CME Conference Attendee

2017 AAFP Congress of Delegates Highlights

Mid-session Update on PAFP's Legislative Agenda

Representing Individual Physicians & Physician Groups

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CONTENTS Winter 2017

Volume 77

Number 4

PRESIDENT’S MESSAGE

4 As PAFP ramps up opioid education,

ON THE COVER: Once again, Pennsylvania came out in full force for the American Academy of Family Physicians’ (AAFP) National Conference, proving that the family medicine pipeline is as strong as ever, particularly in the Keystone State.

24

legislation in the offing

MEMBER NEWS

8 2018 PAFP Annual Meeting schedule; search is on for PAFP FP of the Year; PAFP President talks DPC; members named 'Top Physicians under 40'

FEATURES

12 PAFP member hopes innovative device will stem tide of opioid epidemic

14 Cover Story: PAFP Reading CME Conference: Wrap-up

24 Highlights of the 2017 AAFP Congress of Delegates Meeting in San Antonio

GOVERNMENT AFFAIRS & PRACTICE ADVOCACY

34 Government Affairs: Mid-session update on PAFP’s legislative agenda; PAFP’s Top Legislative Items: NP Independence, Prior Authorization Reform, Credentialing Reform, and DPC

36 Legal and Compliance Update:

37 36

Physician opioid overprescription: $200 million JUA raid enjoined by federal court

PRACTICE MANAGEMENT

42 Understanding ‘incident to’ services

PHYSICIAN OPIOID OVERPRESCRIPTION

VERDICT UPHELD

President’s Message PA Academy of Family Physicians & Foundation

EDWARD ZURAD, MD, President president@pafp.com

2704 Commerce Drive, Suite A Harrisburg, PA 17110 717-564-5365 • TOLL FREE 1-800-648-5623 • FAX 717-564-4235 www.pafp.com EDITOR-IN-CHIEF/CHIEF COMMUNICATIONS OFFICER Michael Zigmund (mzigmund@pafp.com) MANAGING EDITOR/DIRECTOR OF MEDIA AND PR Bryan Peach (bpeach@pafp.com) Keystone Physician, member magazine of the PA Academy of Family Physicians, is digitally published four times a year. Editorial opinions and advertisements in this publication do not necessarily reflect the views of the PAFP and Foundation, unless so stated. © 2016. Unless stated otherwise, nothing may be reproduced either wholly or in part without permission from the Editor-in-Chief.

As PAFP ramps up opioid education, legislation in the offing

EXECUTIVE VICE PRESIDENT John S. Jordan, CAE (jjordan@pafp.com) STAFF Deputy Executive Officer / Chief Operation Officer Brent Ennis (bennis@pafp.com) Chief Education Officer Janine Owen (jowen@pafp.com) Chief Financial Officer

The PAFP’s opioid education is firing on all cylinders to ensure that Pennsylvania’s family physicians have the latest, most advanced education and information we need to make this public health emergency a thing of the past. As I wrote in a media release highlighting the PAFP’s myriad opioid education offerings at the Reading CME Conference in November, “Rarely have family physicians faced a crisis of such a magnitude as the opioid abuse epidemic. As health care providers and caregivers for Pennsylvania’s nearly 13 million residents, family physicians are aware of our role in combating the disease of opioid addiction. The family physician community and the Pennsylvania Academy of Family Physicians have been out in front of this epidemic, taking a proactive approach in prescribing practices and treatments.”

Along with our educational investment on this critical topic, the PAFP and its government affairs team are closely monitoring legislation that would affect both the manner in which physicians treat acute and chronic pain patients and their prescription of opioid medications. In addition to mandatory CME requirements beginning in 2018, a number of bills in the offing could have further implications for family physicians in the future.

On the Senate side, Sen. Gene Yaw (R-Lycoming) has sponsored Senate Bill (SB) 472, “An Act amending Title 35 (Health and Safety) of the Pennsylvania Consolidated Statutes, in prescribing opioids to minors, providing for prescribing opioids to individuals and further providing for definitions, for prohibition and for procedure.” In effect, this bill would limit prescription opioids for minors not to exceed seven days.

4 | Keystone Physician | Winter 2017

Karen Runyeon (krunyeon@pafp.com) Director of Resident and Student Initiatives Molly Talley (mtalley@pafp.com) Director of Education Lindsey Killian (lkillian@pafp.com)

2015-16 OFFICERS PAFP President (president@pafp.com) Edward Zurad, MD (Tunkhannock) PAFP President-Elect David O’Gurek, MD (Philadelphia) Foundation President Mary Stock Keister, MD (Fogelsville) PAFP and Foundation Treasurer Chris Lupold, MD (Lancaster) PAFP Board Chair and Immediate Past President Robert Rodak, DO (Erie)

DELEGATES TO THE AAFP CONGRESS Bradley Fox, MD (Fairview) Madalyn Schaefgen, MD (Allentown) Alternate — Dennis Gingrich, MD (Hershey) Alternate — Kevin Wong, MD (Jeannette)

BOARD OF DIRECTORS D. Scott McCracken, MD (York) Pamela Valenza, MD (Bethlehem) James Joseph, MD (Cattawissa) - Foundation Vice President Mary Stock Keister, MD (Fogelsville) - Foundation President Tracey Conti, MD, (Monroeville) Jenna Fox, MD (Lancaster) - Resident Chair Kyle Gleaves - Student Chair

Yaw has also sponsored SB 728, “An Act amending the act of October 27, 2014, known as the Achieving Better Care by Monitoring All Prescriptions Program (ABC-MAP) Act, further providing for requirements for prescribers.” Under this act, when a patient is prescribed a non-narcotic Schedule V controlled substance to treat epilepsy or a seizure disorder, the prescribing physician does not need to query Pennsylvania’s prescription drug monitoring database.

Sen. Pat Browne (R-Lehigh) has sponsored SB 542, “An Act amending the act of September 27, 1961, known as the Pharmacy Act, further defining unlawful acts concerning emergency prescriptions.”

The initial 1961 act legislated that a pharmacist provide only a single, 72-hour refill of a non-controlled prescription; SB 542 adds that if the prescription is not dispensed or sold in a 72-hour supply, a 30-day emergency supply may be dispensed or sold.

Finally, we’re also monitoring SB 655, also sponsored by Yaw: “An Act amending the act of April 14, 1972, known as The Controlled Substance, Drug, Device and Cosmetic Act, further providing for definitions, providing for Pennsylvania Safe Effective Opioid Prescribing Advisory Council and further providing for promulgation of regulations.” This bill would establish an opioid prescription advisory council with sanction for the Pennsylvania Dept. of Health (DOH) to promulgate regulations mandating prescription guidelines under categories such as non-cancer pain, obstetrics and gynecology pain, anxiety and insomnia, geriatric pain, and more.

The PAFP Government and Practice Advocacy Committee (GPAC), as part of its 2017-18 official state legislative agenda, stands in opposition to House Bill (HB) 932, “An Act providing for licensure of buprenorphine office-based prescribers; limiting the use of buprenorphine; and establishing penal-

The Department of Family & Community Medicine, Penn State College of Medicine/Milton S. Hershey Medical Center, in Hershey, PA, seeks board-certified family physician applicants for faculty positions to join our expanding team near Hershey, PA. These positions involve patient care, teaching, and research opportunities. Competitive salary and benefits. Forward resume and references electronically or by mail to: Dr. Matthew Silvis, M.D.

Vice Chair Clinical Operations Department of Family and Community Medicine Penn State Health Milton S. Hershey Medical Center 500 University Drive, H154, Hershey, PA 17033 717-531-8187 | msilvis@pennstatehealth.psu.edu

The Penn State Health Milton S. Hershey Medical Center is committed to affirmative action, equal opportunity and the diversity of its workforce. EOE-AA-M/F/D/V.

Comments from attendees in 2017: “Wonderful course. I will definitely take it again even just for CME. It is a very good source for review.”

“After going to this conference, my confidence in passing the exam has measurably increased and I am less anxious about it.”

FAFP

“Overall great course. One of the best I have been to. Thank you!”

BOARD REVIEW

COURSE

For us to be successful in this battle – and trust me, we will succeed – we need to leverage all the resources that we can, not the least of which is our expertise, training, and personalized care that only www.fafp.org we can uniquely provide. That’s why it’s important for the PAFP to continue to be proactive on both the educational and legislative fronts to ensure that we have every opportunity to meet patients where they are and fight the opioid crisis “on the ground.”

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mine the most appropriate course of action for patients addicted to opioids. Some of these bills will give physicians greater freedom to treat their patients in the way they see fit; others attempt to legislate boundaries on this vital relationship. Policies are important and broad tools to help push back against the wave of addiction and overdoses plaguing Pennsylvania; as family physicians, these patients aren’t simply data points on a state map, but individuals with different treatment needs that family physicians are trained to understand.

ties.” This bill, which would require prescribers of buprenorphine to be licensed by the state and pay a $10,000 licensing fee, rests in the House Human Services Committee and was introduced by that committee’s Chairman, Rep. Gene DiGirolamo (R-Bucks). This bill places an undue burden on physicians committed to combating the opioid epidemic through buprenorphine treatment, a safe and effective way to help patients discontinue the use of prescription opioids and illicit drugs like heroin in the safety and privacy of their family physician’s office.

The physician-patient relationship provides a unique and personal avenue for a family physician to deter6 | Keystone Physician | Winter 2017

If you missed our Reading CME Conference, rest assured that we will be having many more opportunities for you to learn innovative approaches to pain management and opioid addiction treatment.

Registration is open now at www.pafp.com for the PAFP’s Philadelphia CME Conference, March 2-4, 2018, which will include the excellent education you’ve come to expect from the PAFP as well as updates on these legislative efforts from our GPAC team. I hope to see you there!

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Member News

Schedule set for PAFP 2018 Annual Meeting The schedule is set for the PAFP's 2018 Annual Business Meeting, coinciding with the upcoming Philadelphia CME Conference, March 2-4, 2018.

The business meeting will take place at the Hilton Philadelphia at Penn's Landing, Friday, March 2, beginning at 7:30 a.m. Breakfast will be served.

Stay tuned for details!

PAFP Annual Meeting

March 2-4, 2018 • Philadelphia

The search is on for the best family physician in the state The Pennsylvania Academy of Family Physicians has more than 5,000 members – but each year, only one of them is awarded the PAFP’s top award: the Family Physician of the Year. This year’s contest is now under way!

tions of multiple families, and come from a tradition of physicians in their own families. From poets to globe-trotters, small-town pillars of the community to big city leaders with a heart for underserved populations, winners of the PAFP Family Physician of the Year award all have one thing in common: a desire to The 2018 Family Physician of the Year award will treat patients with compassion and purpose. go to a family physician who plays a unique role in their community, in their practice, and in the lives of Visit www.pafp.com/topdoc for details, to meet their patients. Past winners have volunteered their past winners, and to nominate! The deadline is time and services abroad, cared for multiple genera- Jan. 26, 2018.

PAFP President talks DPC in local paper PAFP President Edward Zurad, MD spoke with Cumberlink (The Carlisle Sentinel) in October about the direct primary care (DPC) model of practice. In the piece, Independent Care: Direct primary care an option for physicians, patients, Zurad discussed the appeal of the model’s restoration of the physician-patient relationship, and said DPC is expected to become even more prolific amid constant changes to the traditional health care system.

dividuals and families in Pennsylvania,” said Zurad.

The Pennsylvania Academy of Family Physicians supports direct primary care legislation in Pennsylvania that specifies di“While currently only a small percentage of our rect primary care agreements are not insurance membership is engaged in DPC practices, we and therefore not subject to insurance laws or expect the model to grow in response to high regulations. For more information, visit the PAFP out-of-pocket deductibles now faced by many in- Government and Practice Advocacy webpage.

8 | Keystone Physician | Winter 2017

The Pennsylvania Academy of Family Physicians Foundation

PHILADELPHIA CME CONFERENCE March 1-4, 2018 • Hilton Penn’s Landing Register today - Click Here

NEMACOLIN CME CONFERENCE

November 2-4, 2018 • Nemacolin Woodlands Resort Watch www.pafp.com for details and registration

PAFP members make ‘Top Physicians Under 40’ The Pennsylvania Academy of Family Physicians would like to congratulate Dawn Karns, DO of Allegheny Health Network/Saint Vincent Hospital in Erie and Rahul Kapur, MD of Penn Family Care in Philadelphia for their recognition as 2017 Top Physicians Under 40 by the Pennsylvania Medical Society (PAMED)!

According to PAMED, Karns is is a leader in officebased procedures and the education of residents who recently became a faculty member for her Dawn Karns, DO Rahul Kapur, MD hospital's family medicine residency and routinely Penn Family Care volunteers at local homeless shelters. The group Allegheny Health Network/ Saint Vincent Hospital Philadelphia, PA describes Kapur as a consummate teacher of stuErie, PA dents, residents, and fellows who, amid his busy clinical daytime schedule, has committed count- Thank you, Dr. Karns and Dr. Kapur, for your dediless evenings and weekends to care for athletes. cation to Pennsylvania’s patients!

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To learn more, contact Recruitment Coordinator Eleanor Hertzler at 804-822-4478 or eleanor.hertzler@patientfirst.com, or visit www.patientfirst.com/PatientFirstCareers

pafp

Help us find the state's best family physician!

vorite a f r ou y e t Nomina ician today! s f a m il y p h y

The Pennsylvania Academy of Family Physicians (PAFP) is pleased to announce the exclusive You are a familyof physician the person patients endorsement MedPro– Group as the PAFP healthcare liability insurance carrier of choice. trust most when they’re not feeling well, when Jan. 19 is the deadline for entries to the PAFP’s they have questions about their health, when 2018 Family Physician of the Year contest – be they need everything from vaccinations to With the power of strength in numbers, this collaboration allows PAFP to work more effectively with the endorsed professional liability insurance company. MedPro Group’s sure to read the contest rules on www.pafp. prescriptions.

There are thousands of excellent expertise in risk management, claims and underwriting helps PAFP accomplish the mission of providing the best care to the patients in the population we serve. com/topdoc. While you’re there, read about family physicians in Pennsylvania, and we want PEACE OF MIND EXPERTISE HOICE past winners of theC award to learn more about to hear why you think you or a colleague is the • A Berkshire Hathaway company that has • 400,000+ claims managed over MedPro’s history • Customized insurance, claims what qualifies someone for this prestigious best defended of allphysicians – maybe you’ll be chosen as the since 1899 • 90% trial win rate; 80% of claims closed and risk management solutions • Unsurpassed financial strength ratings: without payment • Products and services individual to win honor. Only PAFP members are for eligible Pennsylvania Academy of Family Physicians’ A++ (A.M. Best) and AA+ (Standard & Poor’s) • 99% claims customer satisfaction healthcare professionals, medical facilities the leaders award!

2018 Family Physician of the Year! • 100+ physicians and healthcare on and complex health systems PEACE OF MIND

EXPERTISE

CHOICE

THE MEDPRO GROUP DIFFERENCE

MedPro’s Advisory Boards

• Nationwide coverage

Tell us why your favorite family physician deserves to be

Join your colleagues at PAFP today.

THE PAFP 2018 FAMILY PHYSICIAN OF THE YEAR! RANDY KINSEY

REGIONAL SALES LEADER, MEDPRO GROUP

717-761-2108

RANDY.KINSEY@MEDPRO.COM

Only members of the PA Academy of Family Physicians are eligible to become Family Physicians of the |Year. www.pafp.com 11 A.M. Best rating as of 7/21/2016. Standard & Poor’s rating as of 2/19/2016. All data is MedPro Group data; claims data range is 2006-2017 unless otherwise indicated. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are administered by MedPro Group and underwritten by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and regulatory approval and may differ among companies. Visit medpro.com/affiliates for more information. ©2017 MedPro Group Inc. All Rights Reserved.

Feature

PAFP member hopes innovative device will stem tide of opioid epidemic Myriad stakeholders, policy experts, law enforcement agencies, and medical organizations have offered solutions to the opioid epidemic facing the nation. From crackdowns on prescribers and prescription drug monitoring programs to medication-assisted treatment and even safe injection sites, there is no shortage of proposed fixes – but neither is there a silver bullet.

PAFP member Arthur David, MD has developed a novel approach to stopping the opioid epidemic before it starts by ensuring that prescription painkillers only reach their intended recipient.

The idea didn’t come to him through a dream, as these things often do in stories and movies – but rather in a sad wake-up call.

“I had one situation where I happily thought I’d bonded with this guy,” said David. “He was solid.

He was married, he had children. I prescribed him suboxone, and not two hours later, I got a call from the pharmacy saying that he could be seen in the parking lot, on the monitor, selling this stuff in the parking lot.

“I was bummed,” he said. “I thought, there’s got to be a way. It’s just too easy – that’s how they 12 | Keystone Physician | Winter 2017

get started. A report from the CDC (Centers for Disease Control and Prevention) shows where they get their pills, and it’s not from drug dealers. Ninety-five percent of them get the pills from their friends and family.”

So David, in what he calls “quite an undertaking,” went on a several-year journey meeting with developers, engineers, programmers, and electricians to work out the mechanics of a state-of-the

art device. It looks like something out of Star Trek and uses technology similar to that of smart devices like the iPhone, reading the thumbprint of the patient who has been prescribed the medication to release only a single dose.

“It was tough to get a number,” said David, but said initial production would come down to a paltry $20 per device – bound to go down if and when production is scaled to meet the demand of such a tool.

The benefits of a product like David’s are enormous. The USB-chargeable, tamper-proof box doesn’t merely prevent the patient from overdosing, but makes it nearly impossible for the medication to be shared in the friendly circles he mentioned: it’s as simple as a doctor refusing to refill a prescription for a patient if it’s clear the box has been meddled with in any way. And unlike many other broad interventions that cost tremendous amounts of time and money, the devices themselves, though they’re high tech, are relatively low-cost.

“We hope it’s going to be around $5” eventually, he said. Compared to the staggering financial toll of the opioid epidemic, that’s a drop in the bucket of the health care system – and of course, the device is reusable.

Would you use a device like this? Do you think it could help prevent patients from becoming addicted to prescription medications? Click here to let us know! We’ll share the results in our biweekly Progress Notes newsletter in January, so don’t forget to check your email!

The Pennsylvania Academy of Family Physicians (PAFP) is pleased to announce the exclusive endorsement of MedPro Group as the PAFP healthcare liability insurance carrier of choice.

PEACE OF MIND

EXPERTISE

CHOICE

THE MEDPRO GROUP DIFFERENCE

With the power of strength in numbers, this collaboration allows PAFP to work more effectively with the endorsed professional liability insurance company. MedPro Group’s expertise in risk management, claims and underwriting helps PAFP accomplish the mission of providing the best care to the patients in the population we serve.

PEACE OF MIND

EXPERTISE

CHOICE

• A Berkshire Hathaway company that has

• 400,000+ claims managed over MedPro’s history

• Customized insurance, claims

defended physicians since 1899 • Unsurpassed financial strength ratings: A++ (A.M. Best) and AA+ (Standard & Poor’s)

• 90% trial win rate; 80% of claims closed without payment

and risk management solutions • Products and services for individual

• 99% claims customer satisfaction

healthcare professionals, medical facilities

• 100+ physicians and healthcare leaders on MedPro’s Advisory Boards

and complex health systems • Nationwide coverage

Join your colleagues at PAFP today.

RANDY KINSEY

REGIONAL SALES LEADER, MEDPRO GROUP

717-761-2108

RANDY.KINSEY@MEDPRO.COM

www.pafp.com | 13

A.M. Best rating as of 7/21/2016. Standard & Poor’s rating as of 2/19/2016. All data is MedPro Group data; claims data range is 2006-2017 unless otherwise indicated. MedPro Group is the marketing name used to refer to the insurance operations of The Medical Protective Company, Princeton Insurance Company, PLICO, Inc. and MedPro RRG Risk Retention Group. All insurance products are administered by MedPro Group and underwritten by these and other Berkshire Hathaway affiliates, including National Fire & Marine Insurance Company. Product availability is based upon business and regulatory approval and may differ among companies. Visit medpro.com/affiliates for more information. ©2017 MedPro Group Inc. All Rights Reserved.

David O'Gurek, MD PAFP President-Elect and Reading CME Conference Attendee

14 | Keystone Physician | Winter 2017

Nearly 200 family physicians and health care providers rolled into Reading on Friday, Nov. 19, for an exceptional weekend of medical education. With support from Reading Hospital and the Caron Foundation, the opening session began with a question for attendees – “How did we get into this fix, and how do we get out?” – addressing the current opioid crisis and how to best improve communication between family medicine physician practices and inter-professional team members.

The weekend continued with three additional sessions presented by the Caron Foundation on the neurobiology of addiction, treatment alternatives for substance abuse, and the use of screening, brief intervention and referral to treatment.

The PAFP’s initiative on personal and professional wellness was in high gear throughout the weekend with an early morning yoga session, dedicated movement breaks and special sessions on ways of identifying stressors and how to best combat these roadblocks physicians often encounter on a daily basis. National Speakers Association (NSA) Hall of Famer Steve Gilliland engaged attendees to reflect on their pride, passion, and purpose, reminding attendees that the rewards of being a family physician are beyond measure.

The AAFP Foundation’s session on its Vaccinations 4 Teens program provided the latest update on vaccination recommendations for

adolescents. Attendees heard from a parent who lost her child from meningococcal meningitis, reinforcing the critical nature of keeping current with all vaccines. Click here to download the AAFP Toolkit and resources from the session.

Dr. Michael Gaudiose provided an update on fever and rash, always timely and critical for recognizing lesions that represent significant or life-threatening diseases as well as initiating timely treatment. Click here for the session’s monograph.

The Santander Arena Skybox hosted a PAFP Political Action Committee (PAFP PAC) fundraiser – becoming a tradition at CME conference event weekends – on the first night of the Reading CME conference. PAFP PAC Chair Dr. Michael Baxter welcomed our special guest, State Sen. Judy Schwank, Minority Chair of the Senate Health and Human Services Committee.

Handouts from the conference sessions are available online until Monday, February 19.

You can click here to download the master collection of handouts.

Remember to mark your calendars and join the PAFP this spring at our next conference, Thursday, March 2 through Sunday, March 4 at the Hilton at Penn’s Landing in Philadelphia. In autumn, the PAFP will travel to Nemacolin in Farmington on Friday, Nov. 2 through Sunday, Nov. 4. www.pafp.com | 15

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Pg. 16 (Top to bottom) Attendees sat in on sessions focusing on pain management, opioids, vaccines, fever and rash, and much more, including plenty of patient safety CME credits. || Jason Woloski, MD (left) talks to mentor and past-PAFP President Dennis Gingrich, MD in the vendors’ hall. || Wanda Filer, MD, PAFP member and past-president of the AAFP, hosts a session on intimate partner violence.

Pg. 17 (Top to bottom) The PAFP’s Government and Practice Advocacy Committee (GPAC) discusses policy and politics. || Keynote speaker comedian and author Steve Gilliland brings the CME conference to their feet and their knees with hilarious and humbling anecdotes. || Conference attendees enjoy a reception after a day of education, prior to dining around Reading’s hot spots.

16 | Keystone Physician | Winter 2017

FOCUS ON WELLNESS CONTINUES AT PAFP CME CONFERENCES

The Pennsylvania Academy of Family Physicians continued to focus on wellness – for physicians as well as patients – at the Reading CME Conference. It enlisted the aid of Doug Lentz, director of fitness and human performance for Summit Health, who trained family physicians at the conference on techniques to assess and enhance balance and movement.

This is the third time that Lentz has presented various topics on fitness and movement to the PAFP. Lentz has long been a member of the education and conference committee of the National Strength and Conditioning Association, a fitness consultant both nationally and internationally, and is at the forefront of the movement to promote great balance at all ages. The Pennsylvania Academy of Family Physicians appreciates Lentz’s expertise and his energetic and creative instruction! www.pafp.com | 17

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Pg. 18 (Clockwise from top) As always, the PAFP’s speakers kept audiences engaged and entertained with the latest, greatest information and education. || PAFP PAC Chair Mike Baxter, MD poses for a shot with Sen. Judy Schwank, who has worked with the PAFP on legislation supporting family physicians and their patients. || Dinner is served during a presentation on the PAFP’s partnership with the AAFP on its Highlight on Vaccinations 4 Teens program.

Pg. 19 (Clockwise from top) Baxter and PAFP Deputy Executive Vice President and COO Brent Ennis welcome Sen. Schwank to the PAC reception. || PAFP Foundation President Mary Stock-Keister, MD and incoming PAFP President David O’Gurek, MD chat at the PAFP’s evening reception. || There’s never any shortage of excellent CME at PAFP conferences – join us March 2-4 in Philadelphia for our next CME conference and annual meeting!

www.pafp.com | 19

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Left page: (clockwise from top left): The PAFP Board of Directors conducts its final in-person meeting of 2017. || Past-PAFP President Wanda Filer, MD conducts a session on intimate partner violence. || Keynote speaker Steve Gilliland discusses the “three P’s” – passion, pride, and purpose. || Sessions on alternative therapies for pain management included osteopathic approaches.

Right page: (clockwise from top left): Sessions were filled with PAFP members from across the state. || A member reception is always a standard part of PAFP CME events. || Receptions allow PAFP members to meet and greet outside of a clinical or educational setting.

Bottom splash: The PAFP Reading CME Conference included several videotaped sessions, as seen in this wide shot of a large educational session. They will be available online in early 2018.

www.pafp.com | 21

The Latest Health Care News...

The Pennsylvania Academy of Family Physicians’ PAFP Connect app is available no (iPhone, iPad) and Android (Samsung Galaxy, Google Nexus, Motorola Moto X, Ama

Scouring the latest headlines from reputable media sources across the globe, PAFP Connect brings you the most relevant, up-to-date news and information that affects your practice and your patients. At 1 p.m. daily, PAFP Connect posts the Afternoon Family Medicine news digest – headlines that take a deeper look at family medicine in the U.S., covering all the angles so that you can head into the rest of the day with a deeper understanding of the forces that impact you.

Available Now! Downloading the app is easy!

Just search for PAFP Connect on your iPhone’s app store to get started. Alternatively, click on the icon for the app store that matches your device.

Afternoon Family Medicine puts the news into context, telling you what it means and why you should care. In addition to collaborative groups, information, a schedule of events, and links to other PAFP resources like Keystone Physician, Afternoon Family Medicine is one more reason to log on to PAFP Connect daily.

PAFP Connect was built in-house exclusively for PAFP members.

To access the mobile app you will need to know your AAFP member ID number.

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Highlights of the 2017 AAFP Congress of Delegates Meeting in San Antonio American Academy of Family Physicians (AAFP) chapter delegates assembled in San Antonio this autumn for the 2017 AAFP Congress of Delegates. Five reference committees heard testimony related to limiting transgender troops in the military, paid sick leave for employees, the opioid crisis, physician burnout, physician resiliency, scope of practice, pharmaceutical drug pricing, and universal health insurance. Delegates also discussed many other issues related to patient care and practice management.

Michael Munger, MD of Kansas, was installed as the 70th President of the American Academy of Family Physicians. The AAFP Congress of Delegates elected John Cullen, MD, of Alaska, as the Academy's President-elect.

24 | Keystone Physician | Winter 2017

Others elected or chosen by acclamation for the following positions: • Speaker of the Congress – Alan Schwartzstein, MD of Wisconsin • Vice Speaker of the Congress – Russell Kohl, MD of Kansas • Board Directors – Windel Stracener, MD of Indiana; Erica Swegler, MD of Texas; Sterling Ransone, Jr. of Virginia • New Physician Board Director – Benjamin Simmons, MD of North Carolina • Resident Board Director – Alexa Mieses, MD of North Carolina • Student Board Director – John Heafner of Maryland

Highlights of a few resolutions are highlighted below. You can review all resolutions by going to the AAFP website at www.aafp.org.

Advocacy The New York Chapter introduced a resolution titled “Loser Pays” Tort Reform for Medical Malpractice and Personal Liability Cases whereby the plaintiff and plaintiff’s attorney shall be jointly and severally liable for the costs of defendant’s legal and related fees, up to a cap established by legislation. In addition, the AAFP would seek sponsors for legislation that establishes “loser pays” tort reform for medical malpractice and personal liability cases, whereby the plaintiff and plaintiff’s attorney shall be jointly and separately liable for the costs of defendant’s legal and related fees, up to a cap established by legislation.

The American Academy of Family Physicians would seek collaboration with other medical societies, hospital associations, municipalities and their associations, and other stakeholders to pursue “loser pays” tort reform for medical malpractice and personal liability cases, whereby the plaintiff and plaintiff’s attorney shall be jointly and separately liable for the costs of defendant’s legal and related fees, up to a cap established by legislation.

The reference committee heard testimony mainly in support, though a concern was voiced that the resolution could inadvertently limit access to the judicial system for low-resource populations. The reference committee acknowledges the significant support for the resolution but recommends referral to the Board of Directors due to the complexities (in particular the state vs. federal law nature of the Resolved clauses) and the need to determine an appropriate target for advocacy (state vs. federal governments).

The reference committee recommended the resolution be referred to the AAFP Board of Directors.

The Congress of Delegates approved the recommendation.

The American Academy of Family Physicians would attempt to educate government officials and law enforcement that a balanced approach to the opiate crisis is needed... *** The Mississippi Chapter introduced a resolution for the AAFP to support appropriate and individualized pain treatment by physicians as essential to quality medical care and to continue their efforts to encourage physicians to prescribe opiates responsibly.

The American Academy of Family Physicians would educate family physicians in evidencebased approaches to opiate prescribing and pain treatment, such as use of prescription monitoring programs, urine drug screens, cognitive behavioral therapy, and appropriate multi-modalities of pharmacologic treatment and therapy. The American Academy of Family Physicians would engage in professional public relations efforts to improve the public’s current perception of physicians and dispel the myth that places the blame on physicians for the current opiate epidemic. The American Academy of Family Physicians would attempt to educate government officials, law enforcement, and the public that medication-assisted therapy is an important aspect of solving the opiate epidemic and that the “stigma” associated with it needs to be removed, both for patients receiving it as well as for physicians prescribing it.

The American Academy of Family Physicians would attempt to educate government officials and law enforcement that a balanced approach to the opiate crisis is needed which focuses on prevention responses that aim to reduce the rates of nonmedical use and overdose while maintaining access to prescription opioids when medically indicated. www.pafp.com | 25

The reference committee heard mixed testimony regarding the resolution. Speakers discussed the shared responsibility for the epidemic. Two speakers noted the large fiscal note ($551,235 for a 12-month campaign) associated with the resolution’s adoption, and another mentioned the potential multi-year nature of the project. The resolution’s author expressed support for referral to the Board of Directors. The reference committee noted that the opioid crisis and the American Academy of Family Physicians’ response is active and ongoing.

The reference committee recommended the resolution be referred to the Board of Directors. The Congress of Delegates approved the recommendation. *** The New York Chapter introduced a resolution titled Universal Health Insurance. The American Academy of Family Physicians would endorse a national single-payer health care system that is paid for with general revenues of government and which might include copays; in which services are delivered by private health care providers pursuant to peer reviewed standards of care developed by each category of provider; that is administered by an existing government agency such as the Centers for Medicaid and Medicare Services, or by a new public benefit corporation whose board of directors would be independently selected by the provider community and consumer representatives.

The American Academy of Family Physicians would support a single-payer health care system in which payment for services and development of administrative rules and procedures are established through collective negotiation with provider representatives, with separate bargaining agents for each category of provider and which include consideration of provider operating costs and geographic and demographic factors, and that such negotiations include an appeals process for providers whose particular operating circumstanc26 | Keystone Physician | Winter 2017

es may warrant separate consideration; in which compensation for providers includes a specified rate of profit to permit providers to form capital for expansion and innovation and to maintain economic viability; that financially incentivizes appropriate use of primary and specialty care services by differential cost-sharing, such as copay waivers, tiered copays, or similar mechanisms; and in which collective negotiations between providers and the single-payer entity are completely transparent.

The reference committee heard mixed testimony regarding this resolution. While some testimony

The reference committee heard overwhelming support for the inclusion of the voice of the patient in the work of the AAFP, decisions, and policies was in strong support, other testimony expressed concern regarding ambiguous terminology and its understanding by the membership. The reference committee noted the Board of Directors and its conclusion that different system reforms would lead to both beneficial and detrimental results. The reference committee also discussed administrative burdens, heterogeneity of the U.S. population, and that the resolution itself offers eight different options.

The reference committee recommended the resolution be referred to the Board of Directors. The Congress of Delegates approved the recommendation.

Organization and Finance The Kansas Chapter introduced a resolution Voice of the Patient within the AAFP whereby

the AAFP investigate the process to represent the voice of the patient to the Board of Directors.

The reference committee heard overwhelming support for the inclusion of the voice of the patient in the work of the AAFP, decisions, and policies. There was agreement that including the perspective from patients is in alignment with a patient-centered approach to care and will provide valuable input and feedback that will help improve patient care. Individuals called on the AAFP to be a role model and “walk the talk.�

There was recognition that physicians can be limited in their knowledge and views of patient care because their training and knowledge is based on the physician perspective. Several individuals provided examples of success with including patient advocates on boards and committees, including three representatives from Family Medicine for America’s Health (two of whom were past presidents of the AAFP). There was concern expressed regarding the level of commitment this would require. Clarifications and recommendations were also provided that the voice of the patient should be provided by a trained patient advocate who can represent the diversity of patients that family physicians serve and that the individual not be a single-disease patient.

A representative from the Board of Directors shared that the patient perspective is currently provided through various avenues including the Patient-Centered Primary Care Collaborative and the National Coalition on Health Care. The representative of the Board of Directors recommended that the resolution be referred to the board for further investigation as there may be other opportunities to leverage the voice of the patient such as via social media. Based on the testimony, the reference committee supports the inclusion of a patient advocate as a member on the Board of Directors.

The reference committee recommended that the resolution be adopted. The Congress of Delegates approved the recommendation.

*** The Minnesota Chapter introduced a resolution titled Support Employed Physicians Involvement in the American Academy of Family Physicians: that the AAFP create tools that members can use to demonstrate the value of involvement in leadership roles with the AAFP. The reference committee heard testimony in support of the need for the AAFP to provide those in leadership positions a resource in the event these individuals need to justify the cost and explain the benefit to their employer. Those who testified shared challenges faced when requesting time away from practice to participate in leadership activities. Recognizing that the majority of members are now employed, the author of the resolution believes the AAFP needs to do more than just attract individuals to membership, they must also help members speak to the value of membership and participation in leadership at the AAFP to their employers.

A representative of the board acknowledged this need and recommended the resolution be referred to the board of directors as it appeared to encompass more than just justifying participation in AAFP leadership positions, but also reimbursement of dues.

The reference committee recommended a substitute resolution based on the overwhelming supwww.pafp.com | 27

port heard and testimony that provided clarification to the types of leadership positions that would benefit from such a resource. The reference committee recommended that the American Academy of Family Physicians create tools that members can use to demonstrate the value of involvement in leadership roles such as the Congress of Delegates, Board of Directors, and other national and chapter leadership positions. The Congress of Delegates approved the recommendation.

Practice Enhancement The Illinois Chapter introduced a resolution titled Direct Primary Care (DPC) Demonstration Project: that the American Academy of Family Physicians work with the Centers for Medicare and Medicaid Services and/or state Medicaid officials to set up a pilot project which demonstrates the value and outcomes that a panel of patients within a region receives through a direct primary care practice; that the American Academy of Family Physicians provide members updates on the Centers for Medicare & Medicaid Services’ (CMS) work regarding pilot projects which demonstrate the value and outcomes that a panel of patients within a region receives through a direct primary care practice.

The reference committee heard mixed testimony on the resolution. The testimony noted support for pilot programs that highlight unique payment models for primary care but had concerns about participation by DPC practices in a CMS program.

The reference committee agreed with the testimony provided and understood the significant fiscal impact that the AAFP would incur. The reference committee acknowledged that the AAFP is monitoring various DPC pilot programs in progress and encouraged staff to look for ways to communicate this information more readily with members.

The reference committee recommended the resolution not be adopted. The Congress of Delegates voted to support the recommendation.

28 | Keystone Physician | Winter 2017

*** The Connecticut Chapter introduced a resolution titled Responsibilities of Commercial and Government Insurers Involving Shared Savings Payments to Family Physicians: that the American Academy of Family Physicians meet with all 54 national insurers that undertake value-based contracts, including the Centers for Medicare & Medicaid Services (CMS), to advocate for adjustment of Risk Adjustment Factor (RAF) scores at least annually and for acceptance of all codes submitted by the providers of care for each patient without truncation of codes due to the insurer’s inability to accept an unlimited number of codes; that the American Academy of Family Physicians meet with all national insurers, including the Center for Medicare and Medicaid Services (CMS), to advocate for the acceptance of CPT-2 codes on claims as sufficient documentation to demonstrate closure of appropriate gaps in care; that the American Academy of Family Physicians meet with all national insurers, including the Center for Medicare and Medicaid Services (CMS), and advocate for allowance of a sufficient amount of time for providers of care to validate the data and reconciliation reports (which show care provided and gaps in documentation of care) on the basis of which value-based payments are to be made.

The American Academy of Family Physicians would meet with all national insurers, including the

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Centers for Medicare & Medicaid Services (CMS), to develop mechanisms for providers to correct inaccurate or incomplete reports through submission of supplemental data that may not be captured in payer claims; meet with all national insurers, including the Centers for Medicare & Medicaid Services (CMS), that provide these reports and advocate for fair compensation to providers by these payers to compensate the additional time, effort and administrative costs incurred to submit the appropriate supplemental data and/or CPT-2 codes to correct inaccurate reports; advocate to the United States Congress for the creation and passage of legislation to mandate at least annual calculation of Risk Adjustment Factor (RAF) scores, payer acceptance of all submitted CPT codes, acceptance of CPT-2 codes as sufficient documentation to close gaps in care, that payers

The reference committee heard testimony from the submitting chapter and another delegation around the common barriers to collection, accuracy, and validation of data related to value-based payment arrangements provide sufficient time for review and correction of inaccurate reports, acceptance of supplemental data in value-based arrangements, and fair compensation for activities required to satisfy payer requirements for reporting.

The reference committee heard testimony from the submitting chapter and another delegation around the common barriers to collection, accuracy, and validation of data related to value-based payment arrangements. Testimony acknowledged the response of national payers but emphasized that the experience of practicing physicians differed from 30 | Keystone Physician | Winter 2017

what payers reported. The submitting chapter worked with staff to modify the resolved clauses, so the fiscal impact would be negligible and incorporated into existing work with public and private payers. The reference committee agreed with the language submitted, and those changes are reflected in the substitute resolution.

The reference committee recommended that a substitute resolution be adopted in lieu of previous resolution which reads as follows: The American Academy of Family Physicians, as part of its ongoing advocacy efforts with public and private insurers that undertake value-based contracts, advocate for adjustment of Risk Adjustment Factor (RAF) scores at least annually and for acceptance of all codes submitted by the providers of care for each patient without truncation of codes due to the insurer’s inability to accept an unlimited number of codes. The American Academy of Family Physicians, as part of its ongoing advocacy efforts with public and private insurers, advocate for the acceptance of Current Procedural Terminology Category 2 (CPT-2) codes on claims as sufficient documentation to demonstrate closure of appropriate gaps in care. The American Academy of Family Physicians, as part of its ongoing advocacy efforts with public and private insurers, advocate for allowance of a sufficient amount of time for providers of care to validate the data and reconciliation reports (which show care provided and gaps in documentation of care) on the basis of which value-based payments are to be made. The American Academy of Family Physicians, as part of its ongoing advocacy efforts with public and private insurers, identify mechanisms for providers to correct inaccurate or incomplete reports through submission of supplemental data that may not be captured in payer claims. The American Academy of Family Physicians, as part of its ongoing efforts with public and private insurers, advocate for fair compensation to providers by these payers to compensate the additional time, effort, and administrative costs incurred to submit the appropriate supplemental data and/or Current Procedural Ter-

minology Category 2 codes to correct inaccurate reports. The American Academy of Family Physicians advocate to the United States Congress for the passage of legislation to mandate: at least annual calculation of Risk Adjustment Factor (RAF) scores, payer acceptance of all submitted Current Procedural Terminology (CPT) codes, acceptance of CPT Category 2 codes as sufficient documentation to close gaps in care, that payers provide sufficient time for review and correction of inaccurate reports, acceptance of supplemental data in value-based arrangements, and fair compensation for activities required to satisfy payer requirements for reporting.

The Congress of Delegates voted to support the recommendation.

Education The New York Chapter introduced a resolution titled Increasing Diversity in Family Medicine: that the American Academy of Family Physicians recommend that the Accreditation Council for Graduate Medical Education (ACGME) study the issue of the effect of American Board of Family Medicine certification exam pass rates on diversity in family medicine; the American Academy of Family Physicians Center for Diversity and Health Equity recommend policy to achieve greater rates of diversity in family medicine; and the American Academy of Family Physicians review the American Board of Family Medicine certification exam pass rate citation levels for various specialties and determine whether it is equitable.

Some underrepresented minority (URM) students may have lower performances on standardized examination and thus be adversely impacted

The reference committee heard support in favor of the spirit of this resolution. Nearly everyone offering testimony acknowledged the concern that the current Accreditation Council for Graduate Medical Education (ACGME) Family Medicine Program Requirements for the residency program pass rate of 90 percent on the American Board of Family Medicine (ABFM) initial board certification examination may have an unintended consequence of reducing diversity in family medicine residency programs.

The rationale for this perspective is that residency programs, whose accreditation depends upon successful meeting of a high pass rate on the ABFM initial certification exam, may not recruit students who might have difficulty passing the exam.

Some underrepresented minority (URM) students may have lower performances on standardized examination and thus be adversely impacted.

Among those testifying was a current member of the ACGME Board of Directors. He stated that the Review Committee for Family Medicine (RC-FM) has the highest pass rate requirement threshold (90 percent) among all of the specialty review committees. The same individual opined that the ACGME board would likely welcome the opportunity to receive input from the AAFP requesting that the ACGME investigate any potential relationship between board pass rate requirements by specialty and their impact on diversity (URM) within the specialty. www.pafp.com | 31

The reference committee recommended resolved clauses be clarified by inserting the word “initial” before certification to indicate that the concern is about initial certification rather than maintenance of certification. Additionally, the spirit of the resolution is referring to diversity of those students and residents who are minorities underrepresented in medicine. Therefore, the committee recommended inserting the “underrepresented minorities” to strengthen the language. The resolved clause as written was thought not to be helpful since the ACGME has data regarding board pass

The American Academy of Family Physicians recommend policy to achieve greater rates of diversity in family medicine The Congress of Delegates approved the recommendations rate requirements by specialty and a database of residents that could be used to determine the diversity of the specialty. The committee believes that deleting the specific reference to the AAFP’s new Center for Diversity and Health Equity will offer more flexibility in implementing the substitute resolved clause.

The reference committee recommended a substitute resolution, which reads as follows: The American Academy of Family Physicians recommend that the Accreditation Council for Graduate Medical Education study the impact of the effect of American Board of Family Medicine initial certification exam pass rates on diversity (underrepresented minority residents) in family medicine relative to other specialties. The American Academy of Family Physicians recommend policy to 32 | Keystone Physician | Winter 2017

achieve greater rates of diversity in family medicine.

The Congress of Delegates approved the recommendations. *** The Pennsylvania Chapter introduced a resolution titled Physician Resiliency Added into the ABFM Process: that the American Academy of Family Physicians formally ask the American Board of Family Medicine (ABFM) to include fostering physician resiliency in its assessment of certification; the American Academy of Family Physicians ask the American Board of Family Medicine (ABFM) to include the option of Knowledge Self-Assessment in physician resiliency as a points-earning component of Maintenance of Certification (MOC); the American Academy of Family Physicians ask the American Board of Family Medicine (ABFM) to develop a performance improvement activity assisting family physicians who self-identify as burned out, and to improve their care of patients by engaging in addressing burnout, and that this option be a points-earning component of Maintenance of Certification (MOC).

Mixed testimony was heard regarding this resolution. Some spoke in support of the provision of resources to foster physicians’ assessment and enrichment of their resiliency. However, several offered testimony in opposition to the resolved clause due to concerns that any additions to the American Board of Family Medicine’s certification program may actually contribute to physician burnout, and concerns about potential unintended consequences of physicians’ self-disclosure of burnout to their certifying board.

The Reference Committee recommended the resolution as written not be adopted in light of those concerns. The Congress of Delegates voted to refer the resolution to the Board of Directors.

Health of the Public & Science The Colorado and Texas Chapters introduced a resolution titled Violence in Health Care: that the American Academy of Family Physicians create a survey to characterize and quantify the incidence of violence in the workplace for family physicians; the American Academy of Family Physicians create and promote an educational violence in the workplace toolkit to provide students, residents, practicing physicians, and their staff/nurses with resources, such as active shooter training, metal detector promotion, and de-escalation training.

The reference committee heard testimony from family physicians describing their experiences with violence in the workplace. Members testified that health care workers are second, only to law enforcement officers, with regard to the number of violent acts perpetrated against them. There was also testimony that this was an issue for all individuals that work in a family medicine practice and is not limited to family physicians. In addition, the reference committee discussed opportunities family physicians may have for addressing safety issues, such as working with law enforcement and receiving de-escalation training.

The reference committee recommended a substitute resolution, which reads as follows: The American Academy of Family Physicians survey family physicians to characterize and quantify the incidence of violence against family physicians in the workplace and elsewhere related to their practice. The American Academy of Family Physicians create and promote an educational violence in the workplace toolkit to provide student, residents, practicing physicians, and their staff/ nurses with resources, such as active shooter training, metal detector promotion, and de-escalation training.

A resolution was introduced on the floor Against Limiting Transgender Troops in the U.S. Military: that the American Academy of Family Physicians issue a statement opposing the ban on transgender persons serving in the United States Armed Forces.

The reference committee heard testimony regarding the signed presidential order citing the cost, readiness and social cohesion implications of allowing transgender persons into the Armed Forces. The 2016 study by RAND Corporation provided evidence to support that these concerns were unfounded and posed “minimal impact� to readiness. Opposing viewpoints indicated that the AAFP should hold off on issuing any recommendations until such time as a decision has been reached by the Joint Chiefs of Staff. Supporters argued that the AAFP should take a stand for marginalized populations.

The reference committee recommended that the resolution be adopted. The Congress of Delegates approved the recommendation.

The Congress of Delegates approved the recommendation. www.pafp.com | 33

Government Affairs BRENT ENNIS, Deputy Executive Officer / Chief Operation Officer bennis@pafp.com

Mid-session update on PAFP’s legislative agenda With the end of 2017 marks the mid-point of the Pennsylvania legislature’s 2017-18 legislative session. Politically, 2018 starts the races for governor, 25 even-numbered senate districts, and all 203 house seats.

Included in all of the 2017 budget turmoil was a victory for the PAFP. A Department of Health (DOH) grant administered by the PAFP that provides financial assistance to create new residency slots at programs with a track record of service to underserved areas was retained, and indications are that the grant will be renewed.

The initial three-year grant ended in June, and the governor and legislative leaders negotiated a

transfer of the line item that funded the grant to the Pennsylvania Higher Education Assistance Agency, or PHEAA. The PAFP, working with several partners, successfully advocated for the line item to be retained with a legislative directive for the monies to be allocated to PHEAA, but administered by DOH. While an add-on to our legislative agenda items, PAFP is committed to this family physician workforce development, and we anticipate expending resources again in 2018 on this line item and issue.

Creating tomorrow’s physician workforce is critical work and an area in which PAFP looks to do more with in the future. Please feel free to contact PAFP Deputy Executive Vice President Brent Ennis with your ideas on the matter.

PAFP’s Top Legislative Items: NP Independence, Prior Authorization Reform, Credentialing Reform, and DPC Nurse practitioner (NP) independence

Prior authorization reform

The PAFP opposes legislation that would eliminate collaborative agreements. Sen. Camera Bartolotta (R-Washington) is the prime sponsor of Senate Bill (SB) 25 and Rep. Jesse Topper (R-Bedford) is the prime sponsor of House Bill (HB) 100. SB 25 passed the Senate on April 26, 2017 and is in the House Professional Licensure Committee.

PAFP supports HB 1293 that would reduce administrative waste in seeking prior authorization by implementing standardized definitions and electronic communications. Rep. Marguerite Quinn (R-Bucks) is the prime sponsor. The bill was introduced May 1, 2017 and is in the House Insurance Committee.

34 | Keystone Physician | Winter 2017

Health insurer credentialing reform The PAFP supports HB 125, introduced by House Health Committee Chairman Matt Baker (R-Tioga), that would standardize the credentialing form and set processing standards. HB 125 passed in the House on May 25, 2017 and is in the Senate Banking and Insurance Committee.

Direct primary care (DPC) authorizing legislation The PAFP supports HB 1739 and SB 926 that specify direct primary care agreements are not insurance and therefore not subject to insurance laws or regulations. The house bill, introduced

by House Health Committee Chairman Matt Baker (R-Tioga), passed the House Representatives unanimously on 9/27/17. It and SB 926,

sponsored by Senate Appropriations Chairman Pat Browne both rest in the Senate Banking and Insurance Committee.

The PAFP’s state legislative agenda is crafted through the Government and House Health Committee Chairman Matt Baker Practice Advocacy (R-Tioga) Committee with position decisions made by the Board of Directors. Questions or comments? Please contact PAFP Deputy Executive Vice President and state-registered lobbyist Brent Ennis at bennis@pafp.com.

T h e Pe n n sylva n ia Ac a d e m y o f F a m ily P hy s i ci ans

Political Action Committee

www.pafp.com | 35 www.pafp.com | 35

Legal and Compliance Update CHARLES I. ARTZ, Esq, General Counsel cia@artzhealthlaw.com

Physician opioid overprescription: $16.7 million jury verdict upheld In what appears to be the first published decision of its kind, a state appeals court has upheld a jury verdict imposing negligence liability on a physician for overprescribing opioids and a $16.7 million compensatory and punitive damages award.

In Koon v. Walden, ___ S.W. 3d ___ (2017) (2017 WL 4782843), the patient and his wife sued his physician and the physician’s employer for negligence and punitive damages because the physician overprescribed opioids which caused him to become addicted, resulting in damages to the patient and his wife. The jury returned a verdict in favor of the patient and his wife, assessing 67 percent of the fault to the physician and his employer and 33 percent fault to the patient. The jury awarded the patient and his wife $1,742,000 in compensatory damages, and $15,000,000 in punitive damages. The physician and his employer appealed. The Court of Appeals upheld the jury verdict on both the compensatory and punitive damages awards and held the physician and his employer: 1.

Failed to weigh the risks and benefits of prescribing opioids to the patient;

2.

Overprescribed opioids to the patient;

3.

Failed to monitor the patient’s opioid treatment; and

36 | Keystone Physician | Winter 2017

4.

Failed to assess the patient for dependency or addiction.

The court of appeals upheld the compensatory damages award for negligence, holding the physician directly negligent and the employer negligent under the doctrine of respondeat superior, which means an employer is vicariously liable for injury-causing conduct of an employed physician done within the course and scope of employment. There was a significant battle over the punitive damages award, but the court held that there was enough evidence to show complete indifference to or conscious disregard for the safety of the patient, justifying the $15 million in punitive damages. The court held that the plaintiff did not have to prove willful, wanton or malicious conduct to recover punitive damages.

The patient’s escalating dependence on opioids and the physician’s failure to properly monitor the patient’s use of those powerful painkillers appear to be the primary factors in the litigation and the verdict. In 2008, the patient sought treatment from his primary care physician (Dr. Koon), trying to get relief from significant back pain. The physician initially told the patient to take over-the-counter ibuprofen, but wrote a prescription for hydrocodone when the patient said the less-powerful ibuprofen was not effective.

PHYSICIAN OPIOID OVERPRESCRIPTION

VERDICT UPHELD Over the course of one year, the physician authorized refills and increased the hydrocodone dosage multiple times at the patient’s request. The patient alleged the physician did not follow existing medical standards that required physicians to closely monitor patients’ opioid use and intervene if it appeared the patient was becoming too dependent on the drugs.

By October 2009, the patient was taking hydrocodone, oxycontin, and oxycodone, all prescribed by the physician. The experts who testified at trial stated that the amounts prescribed between 2008 and 2012 were “excessive,” “colossal,” and “astronomical,” and exposed the patient to a high risk of injury or death. The plaintiff argued, the jury agreed, and the Court of Appeals upheld the findings of the expert witnesses that the physician violated the standard of care.

The court of appeals stated there are serious risks associated with opioids, including tolerance, dependency, addiction, life-threatening respira-

tory disease, depression, overdose, and death.

All patients who use opioids for long enough will become tolerant and dependent, and some will become addicted. Opioids are obviously dangerous, Schedule II drugs identified by the DEA. The court of appeals made numerous findings regarding the applicable standard of care, which are imperative to consider, as follows: 1.

Opioids should only be prescribed for severe enough pain that is not adequately relieved by alternative non-narcotic treatment.

2.

Opioid therapy should begin at the lowest effective dose of immediate-release opioids and go up slowly if needed.

3.

Opioids should be stopped as soon as possible.

4.

The standard of care requires physicians to conduct a risk assessment with the patient www.pafp.com | 37

before prescribing opioids, in which the physician discusses the risks versus the benefits of giving opioids to the particular patient for the particular pain.

5.

The risks and benefits should be reassessed at an office visit each time the dose of an opioid is increased.

6.

Once a patient is taking opioids, the patient should be monitored regularly, meaning regular contact to assess pain levels and functioning and to check for side effects and behaviors that would suggest the patient is becoming addicted.

7.

8.

9.

The risk assessments and the results of monitoring a patient should be documented in the medical records.

Physicians must also keep track of the amount of opioids – number of pills and dose – that the patient is taking.

13. Warning signs that a patient is dependent or addicted to opioids include patterns of early refills, asking for higher doses, taking multiple doses at once, and exhibiting a loss of control over the ability to take the medication as prescribed.

14.

11. Although this upper limit (between 90 and 120 milligrams MED) is not contained in any textbook, law or label, it has been the standard for many years to help physicians recognize when it is time to refer a patient elsewhere.

If a patient’s pain is not adequately controlled by about 100 milligrams MED of opioids, the

38 | Keystone Physician | Winter 2017

Patients who become addicted to opioids cannot themselves articulate the effect the increased doses of medication are having on their lives and will continue taking medicine despite those adverse effects.

15. If a physician suspects the patient is addicted, the physician should cease opioids and help the patient wean off of them.

16.

The physician must have a medication management system in place to make sure patients do not receive too many opioids.

10. The maximum daily dose recommended for a patient with non-cancer pain is between 90 and 120 milligrams MED (which means the morphine equivalency dose).

12.

patient should be referred to a pain management specialist because by 200 milligrams MED, the risk of addiction, abuse and dying increases sharply.

The risks associated with opioids were well known to anyone prescribing these drugs, including the physician and his employer.

17. There was no real dispute at trial that physicians should weigh the risk and benefits of opioids, should prescribe the lowest effective dose for the shortest amount of time and only when other modalities of treatment are ineffective, should monitor their patients carefully and assess them for signs of dependency and addiction.

18.

The patient was taking sleeping medication and sedatives at the same time as the opioids, which exposed the patient to a higher risk of life-threatening respiratory depression.

19. Over a period of four years, the patient went from a prescription for six opioid pills a day to almost 40 opioid pills a day.

20. The patient’s expert testified there was no legitimate medical purpose for the physician to prescribe the patient opioids in these amounts and for this length of time. The expert stated that a patient with low back pain should never be treated with chronic opioid therapy by a primary care physician.

This case is noteworthy because it is the first published decision I have seen imposing negligence on a physician for allegedly overprescribing opioids. The $1.7 million compensatory damages award is enough to create concern, but the $15 million punitive damages award obviously creates even more concern. Although we certainly expect an appeal to the Supreme Court, and the Supreme Court might be likely to hear the case, unless and until this decision is reversed, the compliance recommendations are clear.

21. The expert also testified that the physician did not conduct a risk and benefit assessment that met the standard of care, nor was there any system in place to adequately monitor the patient’s use of opioids in accordance with the standard of care, all of which contributed to the patient’s injuries.

Physicians should follow the standard of care described by the court closely, implement and execute pain management contracts with every patient to whom opioids are prescribed for chronic pain, and implement the assessment and monitoring protocols consistent with the court’s standards as summarized above.

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L022015

$200 million JUA raid enjoined by federal court Chief Judge Christopher Conner of the federal court in Harrisburg issued a decision imposing an injunction against Act 44 of 2017, under which the Joint Underwriting Association (JUA) was forced to transfer $200 million of its surplus funds into the Commonwealth’s General Fund by Dec. 1, 2017 or, if it refused to do so, the JUA would be abolished.

In Pennsylvania Professional Liability Joint Underwriting Association v. Wolf, ___ F.Supp.3d ___ (M.D. Pa. 2017) (2017 WL 5625722), the JUA filed suit after Act 44 was signed into law and requested an expedited hearing on its request for a temporary restraining order and preliminary injunction to prevent the law from going into effect. Judge Conner, in a lengthy decision, agreed and imposed the injunction against Pennsylvania Gov. Tom Wolf preventing implementation of Act 44.

Act 44 would have forced the transfer of the $200 million from the JUA into the General Fund to balance the state budget. Act 44 repealed Act 85 of 2016, which would have also effectively taken the $200 million from the JUA, but had a repayment provision. Act 85 of 2017 has no repayment provision.

The JUA sued under several U.S. Constitutional theories, including violation of the Takings Clause under the Fifth Amendment to the U.S. Constitution. The governor raised numerous defenses.

The Association’s funds have never been held in or comingled with Commonwealth dollars.

The surplus held by the Association is comprised singularly of monies paid to it by private health care providers in exchange for the Association’s acceptance of high level insurance risk. None of the funds in the Association coffers are sovereign dollars in a traditional sense: the Association is not and has never been taxpayer-funded, and it has never otherwise received Commonwealth appropriations.

Therefore, the Judge found JUA had a reasonable probability of success on the merits of its Fifth Amendment Takings Clause claim.

The court also found that the JUA would suffer irreparable harm if the law was not stopped and made the following statement near the end of the decision: We have no quarrel with the Governor’s assertion that the citizens of the Commonwealth have a genuine interest in a balanced state budget, and we are not unsympathetic to the Byzantine intricacies of the General Assembly’s budget process.

But a sovereign cannot achieve a legitimate end by unconstitutional means. On balance, the public interest favors temporary enjoinder of Act 44.

The court closed its opinion by indicating the case on the full merits will be expedited.

Judge Conner held that the JUA would be likely to succeed on the merits of the case and held:

For now, Act 44 cannot go into effect. This is a significant win for the JUA and the physicians who contributed premium dollars that were not and never have been state funds. As a practical matter, it also creates a $200 million hole in the state budget.

The Commonwealth’s possessory interest in the funds at issue in the Hospital Association case is a key factual distinction from the funds in this case.

We will continue to monitor the case and report the court’s ultimate decision on the full merits of the case.

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Practice Management SUSAN ORR, Esq., Rhoads & Sinon, LLP sorr@rhoads-sinon.com

Understanding ‘incident to’ services Many physicians who employ ancillary staff such as physician assistants (PAs) or nurse practitioners (CRNPs) have a hard time grasping the details of “incident to” services. Physicians tell me that they are hesitant to bill “incident to” and consequently submit all services under the provider number of the CRNP or PA. Unfortunately, reimbursement under the PA or CRNP Medicare fee schedule is at 85 percent of the physician’s fee schedule. On the other hand, I encounter a number of physicians who only bill the services of their PA or CRNP “incident to” only later finding out that those services did not meet the “incident to” criteria. Many payers find “incident to” services an easy target for audits which often result in claw backs by the payers.

remains actively involved in the course of treatment. What this means is that any new problem must be first seen by a physician and only then can follow-up care related to that problem be provided by a CRNP or PA and billed “incident to.” New patients are not eligible for “incident to” billing. In addition, the CRNP or PA must be employed by the physician or group practice (leased or independent contractors qualify) and they are considered an expense of the physician or group practice.

So, what are “incident to” services? Medicare defines them as those services that are furnished incident to a physician’s professional services in the physician’s office or in a patient’s home.

Another question that physician pose to me is “What does Medicare mean when it says that the physician must be ‘actively involved’ in the course of treatment?” Unfortunately, Medicare does not define that term, but we have taken the position that the physician see the patient at certain intervals during their course of treatment (once every third visit or every three months depending upon the treatment plan), but at the very least, once a year.

How do services qualify as “incident to?” To qualify, services must be part of the patient’s normal course of treatment during which a physician personally performs an initial service and

“Incident to” services also require direct supervision by a physician. This does not mean that a physician must be present in the patient’s treatment room, while the CRNP or PA performs

42 | Keystone Physician | Winter 2017

the services. Rather, a physician must just be in the office suite so that he or she is available to render assistance, if needed. Note that if you are in a group practice, the physician who provided the initial treatment does not have to be present in the office suite when the CRNP or PA sees the patient. Medicare says that any physician in the group who is in the office suite can provide the direct supervision.

When billing “incident to,” under what physician is the claim submitted? The claim is submitted under the physician who is in the office suite and providing direct supervision at the time the ser"Ready to walk the 'incident to' services maze?" vices are rendered, which may or may not be the treating physician. As a result, the services will not be submitted under the physician who provided the initial treatment if that clinical psychologists. However, “incident to” physician is not in the office suite at the time. services supervised by these non-physician providers are reimbursed at 85 percent of the physiOf note, “incident to” services are not payable cian’s fee schedule. in a hospital or skilled nursing home (SNF) setting. However, if a physician maintains a sepaSome, but not all, commercial payers will crerately identifiable office within the SNF, staff may dential CRNPs and PAs individually. However, if provide services “incident to” for outpatients, they do not, they will generally follow Medicare’s patients who are not in a Medicare covered stay, guidelines for “incident to” billing. Therefore, you or those not in a Medicare certified part of the need to check with the payers directly to idenSNF. Services in a patient’s home are generally tify their requirements for services rendered by not considered “incident to” unless a physician is CRNPs and PAs. also present in the patient’s home.

Just to confuse matters a bit more, other licensed providers besides physicians can provide the direct supervision, including PAs, CRNPs, clinical nurse specialists, nurse midwives and

If you have any questions concerning “incident to” services, contact Susan B. Orr, Esquire at Rhoads & Sinon, LLP at 610-423-4200 or sorr@ rhoads-sinon.com. www.pafp.com | 43