Ross E. Weber

Based on a partnership with Urology Times, articles from the American Association of Clinical Urologists (AACU) provide updates on legislative processes and issues affecting urologists. We welcome your comments and suggestions. Contact the AACU government affairs office at 847-517-1050 or 

One of the most transformative changes to the practice of medicine brought about by the coronavirus disease 2019 (COVID-19) pandemic has been the swift integration of telemedicine into the routine of even the most tech-averse doctor. Seemingly overnight, laws, regulations, and payer policies were updated to facilitate health care delivery online and over the phone.

Most impactful, perhaps, was the March 17 announcement that Medicare would reimburse providers for telemedicine services at the same rate as in-person visits throughout the public health emergency. In addition, states have steadily adopted policies to temporarily authorize and encourage telemedicine.

When Medicare expanded access to telemedicine, the Centers for Medicare and Medicaid Services noted that although the public program would allow physicians licensed in one state to provide services to Medicare beneficiaries in another state, relevant state licensure laws would still apply. As of April 21, 45 states have issued waivers to modify in-state licensure requirements for telemedicine in response to COVID-19, according to the 

 (FSMB). The applicability of those waivers varies greatly and an established relationship between provider and patient may still be necessary.

The position taken by the Mississippi Board of Medical Licensure, for one, has evolved since the agency’s broad decree on March 14. By March 24, after receiving more than 1200 applications from out-of-state providers, the 

 reported that “the board revised its position by deciding that only out-of-state physicians with previously established doctor-patient relationships with Mississippians would be allowed to practice telemedicine.” The FSMB notes that Mississippi now invites the participation of any out-of-state physician whose specialty services are determined to be necessary by the department of health, whether or not a previous relationship exists.

Further complicating matters, states differ on how that relationship can be established. In New Jersey, a law signed by Governor Phil Murphy on March 19 expanded the authority of doctors to provide telemedicine services even without an established relationship, but only for services related to screening for, diagnosing, or treating COVID-19.

In addition to relaxing licensing standards to permit more physicians to practice telemedicine, several common policy changes are being instituted via executive orders to enhance access to remote care, including allowing a provider’s home to be an originating site; consenting to the telephone as being an acceptable means of delivery; expanding the list of eligible providers to include allied health professionals; and requiring insurers to not only cover telemedicine services, but also reimburse at the same amount as an in-person visit.

In California and Washington, officials sped up the implementation of new laws originally set to go into effect in 2021 requiring private payers to cover services delivered via telemedicine and reimburse for those services at the same rate as an in-person visit. During the COVID-19 emergency, California has implemented the coverage provision, whereas Washington immediately imposed both the coverage and payment requirements.

More must be done, according to the American Medical Association (AMA), which calls on states to “eliminate insurer practices of creating separate telemedicine networks or incentivizing patients to use a separate telemedicine provider [e.g., Teladoc, ConsultADoctor, and Doctor On Demand], which may not include contracted physicians who provide in-person care to patients.”

Several states have acted swiftly during the public health emergency to ensure patients have access to telemedicine from the physician of their choice. Washington, once again, has been a leader in this area, as have Illinois and Massachusetts, both of which instituted a requirement that insurers allow “any willing contracted physician to provide telemedicine services directly to new and established patients, without requiring theyâ¯contract with a specific telemedicine service,” according to 

 on telemedicine. It is worth noting, of course, that providers who are willing to provide telemedicine services during the COVID-19 crisis are most likely only able to do so because their state secured a waiver on the enforcement of privacy standards.

, only 10 states required health plans to pay the same for health care delivered remotely as they do for care delivered in person, according to a 

. New parity laws in at least 2 states were passed before the national public health emergency began but, as mentioned above, those were not scheduled to go into effect until January 2021.

By executive order or emergency legislation, several additional states (Massachusetts, Arizona, Maine, New Jersey, and Washington) are, at least temporarily, requiring that telemedicine services be paid at the same rate as in-person services. These policies change almost daily and are monitored by several organizations, including the 

 in states hit hardest by the pandemic estimated that, in the short term, up to 54% of patient encounters will take place via telemedicine––“a more than five-fold increase from volumes prior to the pandemic.” What’s more, most of the survey respondents expect the changes to remain even after the public health emergency ends and temporary privacy, liability, and referral waivers expire. Florida urologist Kevin K. Lee, MD, is not so sure, suggesting that the “problem with COVID-19 tele[medicine] is all the waivers. Many of us are using a platform that wouldn’t have met pre-COVID-19 standards.”

Therefore, in the coming days, months, and years, physicians must be vigilant about protecting patient privacy and safety and maintaining appropriate reimbursement standards. When the dust settles, the medical community will be stronger, more efficient, and poised to deliver outstanding patient care in any setting.

• Standards for establishing a doctor-patient relationship: 

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"In the coming days, months, and years, physicians must be vigilant about protecting patient privacy and safety and maintaining appropriate reimbursement standards," writes the AACU's Ross E. Weber.

State telemedicine rules relaxed during COVID-19 crisis

Based on a partnership with Urology Times, articles from the American Association of Clinical Urologists (AACU) provide updates on legislative processes and issues affecting urologists. We welcome your comments and suggestions. Contact the AACU government affairs office at 847-517-1050 or 

As the physician work force consolidates into hospital and large independent practice settings, laws and regulations that govern professional contracting become increasingly relevant for the individual urologist. One area attracting considerable attention from state legislators and federal regulators is whether a contract may limit the circumstances under which individuals may employ their skill or trade once the contract ends.

The widely varying enforceability of non-compete clauses or restrictive covenants requires physicians to pay special attention to contract provisions related to compensation as well as competition.

Restrictive covenants such as non-compete and/or non-solicitation agreements are generally governed by the laws of the state where the agreement was made. Three states prohibit non-compete clauses in nearly all situations, including those involving health care professionals: California, Oklahoma, and North Dakota. Many more states prohibit their use for lower wage positions.

, an employment law specialist with Epstein Becker Green, "there can be an additional level of complexity in the analysis of such covenants, because many states, in light of the unique position the medical profession holds in the public interest, apply special rules to covenants that restrict medical practice."

Effort to reform Stark law reflects shift to value-based care

A Massachusetts law dating back to 1977 prohibits any non-compete clause that restricts "the right of a physician to practice medicine in a particular locale and/or for a defined period of time." Clark reports that lawmakers in Delaware and Colorado followed suit in the early 1980s, and Rhode Island joined the club in 2016. Texas law, meanwhile, allows physician non-competes as long as the departing physician may: treat a patient through a current illness; access a list of recent patients and related medical records; or buy out the contract at a reasonable price.

During legislative sessions spanning 2019 and 2020, at least nine state legislatures considered outright prohibitions on non-compete clauses for health care providers or limits on their enforceability. In those states where lawmakers seek to simply limit the applicability of restrictive covenants, most nullify any agreement that would impose a restriction based on distance or geographic area (especially if rural).

Still others reject any clause that would prohibit a health care practitioner from treating a prior patient. While most proposals apply to any entity that contracts with a health care provider, one measure in Missouri would apply only to agreements between a nonprofit health system and a provider.

Two bills progressing through the Indiana General Assembly are indicative of those being considered nationwide. Senate Bill 243 simply states that employment contracts may not contain a non-compete agreement. House Bill 1115, however, establishes several requirements for an enforceable non-compete agreement, including:

• Employer must notify patients seen by the departing physician during the 2-year period preceding the termination of employment or expiration of the contract.

• Employer must provide current or last known contact and location information to a patient seen or treated by the departed physician.

• Physician must be given an option to purchase a complete release from the terms of an enforceable non-compete agreement at a reasonable price.

• Medical records must be provided to the departing physician in a widely acceptable format.

FTC, Justice Department examine non-competes

The federal government is likewise interested in non-compete clauses as it relates to antitrust enforcement. Indeed, both the Federal Trade Commission and Department of Justice Antitrust Division recently examined whether there is sufficient legal basis to issue rules that would restrict the use of non-compete clauses in employer-employee contracts. A bipartisan group of U.S. senators demonstrated support for FTC engagement, stating in a comment letter that "the FTC should act to limit the use of non-compete clauses. Reducing the use of non-competes would allow workers to get better jobs, boost wages, increase entrepreneurship, and spur innovation."

On the other hand, during a Jan. 9, 2020 FTC workshop, some panelists pointed to physician practice groups as an example where non-compete clauses may benefit the economy. A study found a 17% increase in revenue per hour and increased physician wages in practices utilizing non-compete agreements.

AACU annual meeting promotes advocacy, unity, political action

Policymakers at the state and federal levels are taking action to balance legitimate justifications for restrictive covenants, including partnership arrangements, with a strong desire to apply free market principles in employment matters. As such, it is vitally important that physicians track these activities that may impact how or where they will practice medicine as consolidation drives more and more providers to employment.

As Washington state urologist Jeffrey Evans, MD, notes, “If an employed physician is not satisfied, or finds a better opportunity, they should not be forced to leave their home (state) to find better employment."

"The widely varying enforceability of non-compete clauses or restrictive covenants requires physicians to pay special attention to contract provisions related to compensation as well as competition," writes the AACU's Ross E. Weber.

Policymakers consider changes to non-compete rules

National politics, state advocacy issues, and innovative topics in urologic care came together as urologists from every practice setting and at varied points in their careers gathered in Washington for the AACU 2019 annual meeting. Over two days in October, notable speakers and special guests led engaging conversations on public policy, leadership development, and cutting-edge science.

The provision of health care via telemedicine was characterized as the Fourth Industrial Revolution by Southern California Permanente's Eugene Rhee, MD, MBA. Dr. Rhee kicked off the event by applauding these advances, but recognized several obstacles to widespread adoption, including reimbursement. Medicare, in particular, lags behind other payers because restrictive statutes and regulations result in partial payment for services delivered remotely. A robust discussion on technology, cross-state licensure, liability, and reimbursement took place, setting the stage for several sessions geared toward urologists interested in 21st century communication and leadership.

Transition to value-based care requires MACRA reform

LUGPA Health Policy Chair Deepak Kapoor, MD, shared his insights on recent legislative and regulatory proposals, including a rule issued Oct. 9 by the Centers for Medicare & Medicaid Services that, according to CMS Administrator Seema Verma, represents “the most significant changes to the Stark law since its inception.” Dr. Kapoor agreed, and summarized various elements of the rule and the exceptions it creates for physicians who participate in value-based care payment models.

Dr. Kapoor’s presentation also included an analysis of proposed changes to Medicare reimbursement. He argued that despite the widespread attention paid to the annual rules, the proposed changes to CPT codes and other policies will have a relatively minor impact on urology this year.

UROPAC Chair Robert Bass, MD, MBA, highlighted key policy issues that the AACU has been active on, including MACRA reform, reducing the burden of prior authorization, Stark law modernization, and greater transparency within the U.S. Preventive Services Task Force. As Congress addresses these and other issues relevant to the house of medicine, such as prescription drug pricing and surprise medical billing, Dr. Bass assured participants that the urologic community will be well represented.

AACU State Advocacy Network Chair William Reha, MD, MBA, meanwhile, detailed myriad initiatives under the banner, “Virtual Network, Real Results.” Dr. Reha noted that state legislatures introduce an average of more than 125,000 bills per year, or 23 times the number introduced each year in the U.S. Congress. That’s why physician advocacy groups like the AACU and AUA must collaborate with state medical associations and other national specialty physician organizations.

When an issue directly impacts urology, however, Dr. Reha insisted that the AACU moves quickly to "alert, educate, and mobilize the entire urologic community." Campaigns identified by Dr. Reha and AACU State Affairs Manager Ross Weber included: cost-free prostate cancer screening coverage in New York; nursing assistant authority to diagnose and treat UTIs in Connecticut; management of conditions contributing to variations in physical sex characteristics in several states; and a national perspective on medical liability reform and state-funded graduate medical education.

Dr. Thrasher discusses ABU's Life Long Learning program

J. Brantley Thrasher, MD, executive director of the American Board of Urology, followed with an overview of the ABU's Life Long Learning (LLL) program, an initiative launched in 2017 to provide certified urologists with a path for ongoing professional development. A 10-year cycle, LLL is comprised of two levels and contains components such as licensure and peer review, continuing medical education, Practice Assessment Protocols, and videos for patient safety, among others.

Dr. Thrasher assured that through continued collaboration with groups like the AACU and AUA, the program will deliver remediation products to fill knowledge gaps and provide a fair, transparent, and valuable certification process.

American Medical Association President Patrice Harris, MD, selected to deliver the annual Hoffman/Carson Lecture, spoke to the importance of collaboration and unity in the medical advocacy community. The lecture, named for two of the AACU's founding members, provided attendees a rare look into the inner workings and legislative priorities of America’s largest association of physicians. Dr. Harris described the five pillars of the AMA-the House of Delegates, Members, Practice/Business Tools, Research & Education, and Advocacy-and how together they make the AMA “physicians’ most powerful ally in patient care.”

Urologist elected to AMA Board of Trustees

The first day of the meeting closed with the presentation of the inaugural Herb Sohn Award for Excellence in Advocacy to Jeffrey Frankel, MD, and Harry Miller, Jr., MD. Herb Sohn, MD, JD, a past president of the AACU, remained active in politics and the practice of medicine until earlier this year, when he passed away at the age of 92. During his long professional life, Dr. Sohn earned a law degree and ran for Congress several times and once for mayor of Chicago. It was during that 1989 mayoral campaign that Dr. Sohn said, “When one spends his whole lifetime just making money, that is a living; but, when one can serve his community and his fellow beings, that is a life.”

In addition to presentations on public policy and leadership development, the AACU 2019 annual meeting included several sessions dedicated to the art and science of medicine. Vanderbilt Urology was well represented by Nicole Miller, MD, and Melissa Kaufman, MD, PhD, who delivered educational presentations on bladder outlet management and urologic trauma. Duke University's Glenn Preminger, MD, preached the tenets of medical stone management, reminding participants of the risk factors and the latest developments in evaluation techniques and treatment. One attendee described the session as "a spiritual experience," perhaps a testament to the level of analysis Dr. Preminger provided about a disease that is so notoriously difficult to prevent, diagnose, and treat.

Several urologists who attended the meeting remained in Washington for one additional day to meet with key lawmakers about health care policies that could impact the practice of urology. As representatives of UROPAC, the delegation attended nearly 20 meetings with bipartisan candidates from both the Senate and House and from each of the congressional committees with jurisdiction over health care policy. Broadly, the group's goal was to educate lawmakers about the practical impact of existing and proposed laws on their professions and their patients. The urologists also discussed hot-button issues, such as prescription drug prices, "surprise" medical billing, and Stark law modernization, with the legislators.

Held as the AACU concluded its 50th year, the Annual Meeting provided an "opportunity to report on the advocacy successes in this ever-changing political landscape," as stated by Young Urologist Committee Chair Seth Cohen, MD. "This organization can only be as effective as the support the urology community provides it," he said.

National politics, state advocacy issues, and innovative topics in urologic care came together as urologists from every practice setting and at varied points in their careers gathered in Washington for the AACU 2019 annual meeting.

In an annual fall ritual, just as students return to the classroom and football players take the field, the agency that administers the Medicare program receives comments on proposed provider payment rates for the next year.

This year, the Centers for Medicare and Medicaid Service (CMS) accepted nearly 42,000 submissions on revisions to the Medicare physician fee schedule (PFS) and Quality Payment Program (QPP). One of the most significant changes is a holdover from last year's plan to consolidate evaluation and management codes. The agency also proposes to add and re-value codes that account for complex care, expand reimbursement for telemedicine services, and simplify performance reporting requirements. The agency must now review the comments before releasing a final rule, which is expected to be published in November.

The re-classification of evaluation and management visits became a year-long focus of the provider community after CMS proposed consolidating the five-tier payment system into one payment rate. After scaling back and delaying the implementation of its own plan, CMS has now tentatively accepted providers' recommendations to maintain the five-tier system for established patients and moving to a four-tier system for new patients.

In a letter to CMS Administrator Seema Verma, AACU President Mark Edney, MD, MBA, suggested the new framework will "more accurately reflect the significant time and medical decision-making that [urologists] provide to patients via face-to-face, primarily non-procedure-based, cognitive care."

To pay for this change, CMS plans to cut payments to several non-physician providers, including clinical social workers (-4%), psychologists (-7%), and physical therapists (-8%). Representatives of these professions emphatically reject the cuts and warn that these front-line providers will ultimately opt out of the Medicare program, thus compromising beneficiaries' access to care. In tying these cuts to an ongoing public health crisis, the 

Alliance for Physical Therapy Quality and Innovation said,

 "If CMS wants to reach the stated goal of decreasing opioid use, access to physical therapy should be expanded-not cut."

Separately addressing complex patient care, the 2020 Medicare payment proposal establishes separate coding and payment for Principal Care Management (PCM) services, which describe care management services for patients with a single, complex chronic condition. According to the AACU’s Dr. Edney, “These proposed new codes are well suited for the care management services provided by urologists for a variety of chronic conditions, including interstitial cystitis, chronic orchitis, bladder dysfunction, stress urinary incontinence, and many others.”

On the telemedicine front, the health care field applauded CMS's steady integration of digital medicine in the Medicare program, but the 

 "against CMS’ assumption that all services that can be delivered via telehealth have already been covered." The AMA went on to urge CMS to "allow Medicare beneficiaries in urban locations to receive telehealth services."

CMS is also proposing significant changes to QPP that streamline reporting requirements with the goal of reducing administrative burdens. The proposal includes a simpler way to participate in the Merit-based Incentive Payment System (MIPS). The new framework, called the MIPS Value Pathways (MVPs), would transition reporting on many measures across the four performance categories (Quality, Cost, Promoting Interoperability, and Improvement Activities) to a system in which clinicians report on a smaller set of specialty-specific measures that are more closely aligned with Advanced APMs.

Residency funding urgently needed to address work force shortage

These significant changes to the MIPS program are being proposed just 3 years after being established and will impose further financial hardship on physicians. Dr. Edney urged “CMS to offer the MVP framework on a voluntary basis, at least to start.”

Overall, the 2020 Medicare payment proposal attempts to modernize the program and mitigate administrative burdens. The urologic community has identified room for improvement, however, including in the area of facilitating participation in advanced payment models. According to Dr. Edney, CMS must “consider additional reforms, based on continued engagement with the provider community, that remove the barriers to coordinated, value-based care as soon as feasibly possible.”

"Overall, the 2020 Medicare payment proposal attempts to modernize the program and mitigate administrative burdens. The urologic community has identified room for improvement, however, including in the area of facilitating participation in advanced payment models," writes the AACU's Ross E. Weber.

Author | Ross E. Weber

Articles

State telemedicine rules relaxed during COVID-19 crisis

Policymakers consider changes to non-compete rules

AACU annual meeting promotes advocacy, unity, political action

CMS proposed rule shows room for improvement