New York State Neurosurgical Society (NYSNS) Political Update June 2019

Our efforts remain with both political parties, at the State and Federal level, but in New York, which is entirely Democratic, our efforts are obviously much more with the Democrats. The Democrats have themselves become divided into the “moderate Democrats” and the “progressive Democrats”. We are trying to get in front of different legislators and regulators to advocate for our issues.

It has also been our general sense that the fate of neurosurgeons is in many ways intertwined, and that a healthy private practice environment will strengthen the bargaining power of the hospital employed physicians, and vice versa.

One issue we continue to discuss is the Integrity of the FAIRHEALTH database, the database created by Governor Cuomo when he was Attorney General that is now regarded as the standard database for Usual and Customary Rates (UCR) for physicians nationwide. There have been times in the past few years when the data methods were deliberately changed to artificially lower the rates  — and then reset after we contested the changes. Recall also that several board members of FAIRHEALTH are former health insurance company executives. We have fought back on these efforts, and continue to do so. Though FAIRHEALTH is a national organization, it was created in New York and is based in New York, so the New York legislators and regulators have a real ability to keep them honest.

The lawmakers in New York are happy with the Surprise Medical Bill law that was passed a few years ago. That’s good for us. We helped pass one of the most fair and favorable Emergency Out of Network laws in the country. New York is one of the only states to have passed a surprise bill law that uses FAIRHEALTH to determine the rates of payment to physicians.  The New Jersey legislature recently passed a similar law that prohibited out of network physicians from balance billing patients for emergency work, but tied the required insurance payments to Medicare / in-network rates – a very negative result  for specialists in New Jersey. There is significant talk in Washington now, by both parties, for development of a federal surprise medical bill law that would cover people with private “self funded” plans, plans which are legislated and regulated at the federal level. (State laws generally cover only “fully funded” private health insurance plans.)

As a reminder, the Affordable Care Act (ACA) had tried to address and remedy this very issue. The ACA provided that if a patient with a self funded private plan received care from an out of network provider, that the insurer could hold the patient responsible for only what it would have required had the patient seen an in-network provider. However, the ACA still allowed the physician to balance bill the patient. The insurer was then required to make a “reasonable” payment which several of the Federal departments (Department of Health and Human Services, Department of Labor, and Department of Treasury) determined would be the “Greater of Three” (GOT) number – (1) Medicare; (2) The insurer’s in-network rate; (3) the insurer’s out of network rate. Since this regulation essentially left the payment method entirely up to the insurers, which have often switched their out of network payment methods to medicare, the patient is often left with a very large surprise bill for their out of network emergency services. The AMA at the time of the regulation’s creation had argued that exactly this problem would occur. Extensive efforts have been made to remedy this unreasonable regulation, including a lawsuit by the national association of emergency physicians, but to no avail. It also seems now that there is real discussion about a federal law regarding this issue, it is unlikely a regulatory remedy will be forthcoming.

Regarding the federal proposals, several bills have been offered up in both the Senate and the House. There seems to be an interest in possibly deferring to the states for those states that have laws on the books. That could be good for us as New York has a very good law for these cases in instances of fully funded plans. The AANS along with the AMA and many of the national specialty societies have weighed in and submitted a summary position statement that essentially argues for a New York model payment consideration , that is, using a database such as FAIRHEALTH / UCR, and specifically, not medicare or in-network data.

I think the New York delegation may be particularly helpful here because our state law is favorable. The Medical Society of the State of New York (MSSNY) wrote a letter to Senator Schumer and met with him encouraging him to use the New York model for any federal legislation. I met Senator Schumer a few weeks later, again to push for this point, and he led me to believe that he would push for this. MSSNY and I also spoke with the health staff members  from Representative Joe Morelle’s office to ask if Representative Morelle (who was very involved in the New York State Law) would support a House bill that paralleled the  New York law. We’ll have to see where things go in the House of Representatives. We will continue to work with Katie Orrico at the AANS/CNS and the AMA towards  a satisfactory conclusion to these federal legislative efforts.

Another issue of relevance at the State and National level is the discussion of “single payer” healthcare. These proposed laws would essentially outlaw all private health insurance plans. Massive taxes would be levied which would then be used by the government to provide the same insurance to everyone, presumably something like Medicare, and presumably coverage  that doesn’t pay physicians very well at all. This has been pushed at the state level for many years by Assemblyman Dick Gottfried, but has gained new traction as the Democrats have taken control of all three branches of government. The Governor and moderate democrats are against this, and I don’t think this will pass any time soon. It might also be difficult to implement without federal cooperation, which isn’t about to happen under the current President. We are continuing to educate state legislators, and try to persuade them that this is not the best direction right now.

At the National level, this concept is also gaining more traction with the repeat presidential campaign of Bernie Sanders and the ascendancy of  more progressive democrats such as Alexandria Ocasio Cortez. Obviously the insurers and hospitals are , like most physicians, not in favor of eliminating private health insurance. Many Americans are also against this idea. We’ll keep voicing our concerns on this.
The ACA is again coming under court challenge, and this may again lead to the Supreme Court. Recall that the Court narrowly ruled that  the ACA was lawful as a “tax”, with Chief Justice Roberts siding with the four liberals justices to save the ACA from a Constitutional  challenge. However, the latest Congressional removal of penalties for not abiding by the individual mandate have challenged the continued constitutionality of the ACA as a “tax”. Regardless, the ACA and healthcare policy remain very much at the forefront of national political discussion. Again, I think we want to make sure our voices and concerns are heard here, regardless of who wins various elections.

At the State level, we continue to push for the ultimate state payment to physicians who cared for patients with Health Republic insurance who were never paid for their services.

The malpractice market in New York State has seen considerable consolidation this year with the acquisition of MLMIC by Berkshire Hathaway. Berkshire had already acquired Medpro, one of the other major malpractice carriers. The other “admitted” carriers – malpractice insurers that are regulated by the state and entitle the insured to the added million dollar layer of coverage, are PRI and TDC (the Doctors Company). Due to the recent consolidation and obvious “for-profit” motives of Berkshire, we have specifically asked the state regulators to consider an independent actuarial assessment of the malpractice premiums, to make sure we are not being asked to overpay. 

Another issue that is at the forefront lately is the issue of stroke center designation. There is a national effort to designate stroke centers into a three tiered system based on level of stroke response capability—level 1: tpa; level 2 thrombectomy capable; level 3 comprehensive (with neurosurgery and aneurysm treatment capability). One of the big concerns has to do with the requirements for endovascular procedurists, and these may be endovascular neurosurgeons, endovascular neurologists, or endovascular neuro-radiologists. In October of 2018, The Joint Commission had suspended its volume requirements for procedurists. However, just recently, the Joint Commission reinstated these requirements. Specifically, they now require that a procedurist perform at least 15 mechancial thrombectomies per year (or 30 in a 2 year period) to be allowed to provide coverage in a stroke center (level 2 or 3). There are many doctors, including neurosurgeons, who are very capable at endovascular care, who will not be able to meet these requirements, and as such, will not be able to work going forward, if this rule is not changed. The other problematic rule is that the procedurist can only provide coverage at one stroke center at a time, which also seems like an extremely undue burden. These are brief procedures that even at a busy hospital, might only be performed once a week, and it is therefore unclear, why a doctor couldn’t cover two or more hospitals at once. Following the Joint Commission new requirements, the state Department of Health (DOH) presented its own requirements for NY stroke centers which essentially parallel the Joint Commission requirements.

The New York State neurosurgical society voted recently by nearly a 9:1 margin to try to ease these requirements. The New York state neurology society generally agreed, though they felt it would be reasonable for individual hospitals to set up some standard requirements, but at a much lower annual volume than 15 per year. These proposals were presented at the MSSNY House of Delegate that decided not to move forward with them at this time. However, the subject will continue to be discussed at MSSNY, and will be brought forward for discussion at the annual AMA house of delegates in June. It is also clear that there are more and more doctors and hospitals who are noting a problem with these requirements and are trying to change them. One hopeful sign was a recent editorial in Stroke advocating for more lenient requirements for hospitals in more suburban areas which will have much more difficulty meeting the stroke volume requirements.

Another general concern has been the great disparity in medicare reimbursements to physicians versus hospitals who perform identical outpatient services. There seems to be a push legislatively to equalize payments based on site of service.

We will also continue to advocate for raising the Medicare rates.  Medicare has been far too low for neurosurgical procedures. The recent law that eliminated the Sustainable Growth Rate (SGR) issue, also imposed a meager 0.5% annual increase in Medicare fees for physicians. These increases are far below the rate of healthcare cost inflation, and this  is leading to an even greater decline to the real value of medicare payments. These unacceptable rates may one day become a  major problem for neurosurgeons, particularly if the  country ever moved to a “Medicare for all” model.  As such, we will continue to try to work to improve these absurdly low rates. 

We also continue to see major consolidation in the healthcare industry, consolidation that is not likely to be helpful for physicians, neurosurgeons, or patients. The consolidation of hospitals and insurers has usually just led to higher prices and less leverage for physicians. One major national merger that is being pursued is the merger of Aetna and CVS. The AMA is continuing to work with  anti-trust interests in the government to  block this and further insurance megamergers.

The past few years have seen one of the sharpest declines in independent practitioners. This is due mostly to difficulty getting reimbursed and being pushed out of practice by ever expanding hospital systems, and to a lesser degree, the increased administrative hassles of practicing medicine. We will be encouraging the AMA and JAMA  and the AANS/CNS to focus their  advocacy efforts on measures that are critical to the survival of physician practices.

Mike Brisman

Contact: Sara Vera @ / 914-987-1500