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As a result of CAP advocacy, pathologists will receive a hardship exception from Medicare penalties under the Electronic Health Record (EHR) Meaningful Use program in 2016.

On October 6, the Department of Health & Human Services (HHS) issued rules to simplify requirements and add flexibility to its Medicare EHR Meaningful Use program. And, in response to comments submitted by the CAP, pathologists won’t receive Medicare penalties under Meaningful Use in 2016 as the CMS acknowledged the specific providers who will be eligible for hardship exceptions. The CMS stated an eligible professional "may receive a hardship exception if he or she has a primary specialty listed in [Medicare's Provider Enrollment, Chain, and Ownership System (PECOS)] as anesthesiology, radiology, or pathology six months prior to the first day of the payment adjustments that would otherwise apply."

Previously, the CAP secured for pathologists an automatic hardship exception in 2015. The CMS is continuing the automatic hardship exception through 2016, which means pathologists won't receive penalties that lower Medicare payments by 1% in 2015 and 2% in 2016.

The CAP will continue to engage with the CMS on providing penalty relief to pathologists in future years and will issue formal comments in response to the meaningful use final rule. The CAP continues to advocate for relief from the penalties because pathologists use laboratory information systems, and not EHRs, and are unable to meet EHR Meaningful Use requirements. Although the CAP has a minority of members that have successfully attested to Meaningful Use, it is because they are likely part of larger practice organizations, the leaders of whom may be making practice-wide attestations on behalf of all of their physicians, including their pathologists.

Overall, the final rule responded to criticisms to ease requirements in the incentive program. For the EHR Incentive Programs in 2015 through 2017, major provisions include:

  • 10 objectives for eligible professionals including one public health reporting objective, down from 18 total objectives in prior stages.
  • Nine objectives for eligible hospitals and critical access hospitals (CAHs) including one public health reporting objective, down from 20 total objectives in prior stages.
  • Clinical Quality Measures (CQM) reporting for both eligible professionals (EPs) and eligible hospitals/CAHs remains as previously finalized.

The CMS stated it will gather public comments about the EHR incentive programs going forward as it implements provisions in the Medicare Access and CHIP Reauthorization Act of 2015 (MACRA), according to a press statement . MACRA, which Congress passed earlier this year, replaces the sustainable growth rate formula (SGR) and creates the Merit-based Incentive Payment System (MIPS). Meaningful Use of EHRs is a component of the MIPS.

"We will use this feedback to inform future policy developments for the EHR incentive programs, as well as consider it during rulemaking to implement MACRA, which we expect to release in the spring of 2016," the CMS said. The CAP will also provide comments to the agency to ensure pathologists are protected as the agency implements the new MACRA payment system.

The CAP will report more news on this issue in future editions of STATLINE.

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Following compelling testimony from New York pathologists, a state Department of Health advisory committee passed a motion to require state officials to develop an action plan and timetable for addressing a regulation prohibiting pathologist-patient discussions about laboratory test results.

The CAP and New York State Society of Pathologists (NYSSPATH) continued to strongly urge the Department of Health to repeal its prohibition on patient-pathologist discussions. During an October 8 meeting of the department's Committee on Codes, Regulations, and Legislation, four pathologists discussed how the regulation adversely affects patients and positions New York as an outlier compared to the rest of the country. The committee motion was later passed without debate by the full Public Health Planning Council. While the advisory committee has called for state action on the issue, it is unclear if New York health officials are willing to lift the prohibition.

Watch the hearing by selecting the October 8 meeting from the Department of Health archive . Discussion of this issue begins at the 13:15 mark in the video.

Speaking during the committee hearing was NYSSPATH President Mary Elizabeth Fowkes, MD, PhD, FCAP; James M. Crawford, MD, PhD, FCAP; Evan M. Cadoff, MD, FCAP; and Glen S. Markowitz, MD, FCAP. The pathologists repeated calls to remove the prohibition in light of a 2014 federal regulation that expanded patient access to request and receive test results from laboratories. In addition, a recent Institute of Medicine (IOM) study, "Improving Diagnosis in Health Care," calls for greater clinical integration of pathologists into the health care team and encourages patients to be engaged in their own healthcare.

"As President of the New York State Society of Pathologists, I have spoken to a multitude of pathologists throughout the state," Dr. Fowkes said. "Although I do not want to say pathologists within the state are speaking with patients because I do not want our laboratories to be in violation of this regulation but, hypothetically speaking, most are. I can tell you that most pathologists throughout the country speak to patients. Maybe not frequently, but they do talk to patients about interpretation of their reports."

Dr. Crawford said: "Specifically, at the recommendation of their treating physician, patients have reached out to me to gain a better understanding of their diagnostic findings. On occasion a patient will want to look at those microscopic slides to actually see their cancer. In interacting with patients it is precisely because of my expertise as a pathologist that the treating physicians recommend that they reach out to me. Although the interactions are rare, they usually occur during the diagnosis of cancer."

Due to greater access to results through patient portals and electronic health records (EHRs), patients have the names of the pathologists making diagnoses and will initiate contact with laboratories. On occasion, patients will come with concerns about a laboratory test result or question the accuracy of a test.

"I believe we have a responsibility as physicians and to our profession to respond to the patient's concern," Dr. Markowitz said. "I believe that refusing to speak to the patient increases patient anxiety, creates patient-physician distrust, and makes an already too cumbersome medical system even more challenging. Pathologists are not looking for this type of interaction, but when it's necessary I don't think they should be forbidden from speaking. In many instances, we are better trained to answer a question than the clinician."

Dr. Cadoff said: "In summary, pathologists are physicians first. We have a duty of care to our patients. For the reasons outlined here today, we need to be permitted to be active members of the health care team as recognized by the IOM report and the recommendations."

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The CMS is reminding providers to contact its ICD-10 Ombudsman and ICD-10 Coordination Center for questions and concerns about using new diagnosis codes on claims for physician services provided on or after October 1.

On October 1, the US health care system transitioned from ICD-9 diagnosis codes to ICD-10. Government and private payers will not reimburse claims for services provided on or after October 1 that are billed with ICD-9 codes. But claims for services provided before October 1 should be billed with ICD-9 codes.

Physicians and providers can email questions about the ICD-10 transition to Ombudsman William Rogers, MD, at All others should contact the ICD-10 Coordination Center at

In response to concerns by the American Medical Association (AMA), CAP, and other physician specialty societies, the CMS created the ombudsman position and coordination center. The CMS also developed a website where providers can address their concerns with their respective Medicare Administrative Contractors (MACs) if they think a local coverage determination (LCD) contains any ICD-10 codeing errors.

In July, the AMA and CMS announced flexibility for physicians following the ICD-10 transition. Medicare providers must still use valid ICD-10 codes on claims for services provided on or after October 1, but the CMS will not reject a claim when the provider uses the wrong code as long as it's from the correct code family. The flexibility applies to quality reporting initiatives and Medicare audit reviews. A CMS frequently asked questions document reviews the details of ICD-10 flexibilities.

CAP Resources for Pathologists

The CAP has several resources on the ICD-10 transition available to members. CAP Practice Management has several documents for pathologists and practice managers (login required). Access the CAP's archived webinar from May 21 on ICD-10. CAP members can email the College for their practice management questions.

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Register today for the November 5 webinar "The 2016 Medicare Physician Fee Schedule's Impact on Pathology Services" to attend the CAP's essential presentation for understanding reimbursement changes to pathology services and other Medicare payment policies next year.

Register for this webinar today.

Following the 2016 final rule fee schedule's publication on or around October 30, the CAP will send members a STATLINE Special Report and produce the complimentary live webinar on November 5. Throughout this hour-long panel discussion, CAP experts will explain reimbursement and policy changes by the CMS in the 2016 Medicare Physician Fee Schedule. Some of the key Medicare reimbursement changes are expected for immunohistochemistry, immunofluorescence, and prostate biopsy services in 2016. The webinar will begin at 2 PM ET on November 5.

Presenters for the webinar will be CAP Economic Affairs Committee (EAC) Chair Jonathan L. Myles, MD, FCAP; EAC Vice Chair W. Stephen Black-Schaffer, MD, FCAP; and EAC Measures & Performance Assessment Subcommittee Chair Diana M. Cardona, MD, FCAP. CAP Policy and Advocacy Vice President John H. Scott will be the webinar moderator.

During this session, attendees will learn about the 2016 fee schedule’s pathology-related policies, quality initiatives, impact on pathologists, and the CAP’s advocacy efforts with the CMS prior to the rule’s publication. The CAP panel also will answer questions from CAP members.

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