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Citing recommendations in the recent Institute of Medicine (IOM) study "Improving Diagnosis in Health Care," the CAP again called on the State of New York to repeal a regulation prohibiting pathologists from conferring with patients on their laboratory test results.

CAP President Gene N. Herbek, MD, FCAP, wrote NY Department of Health Commissioner Howard A. Zucker MD, JD, a September 28 letter highlighting IOM's call for greater clinical integration of pathologists into the health care team and encouraging patients to be engaged in their own health care. The letter asked the Department of Health to consider the IOM study and its recommendations during an October 8 New York City meeting of the State Public Health Planning Council Codes Committee in which the regulation is under consideration.

"I wanted to bring to your attention several of the conclusions and recommendations of the IOM insofar as these themes elucidated by the IOM, in order to promote quality in health care and to reduce the risk of diagnostic error, are impeded in implementation in the New York health care system by a regulation that prohibits pathologist-patient conferral on the interpretation of laboratory/pathology test results," Dr. Herbek stated.

The patient advocacy organization Center for Medical Consumers, in New York City, has also urged repeal of the regulation prohibiting pathologists responding to patient inquiries. "This regulation erroneously construes that when a pathologist responds to questions from his/her patient, that such action is a kickback activity to the physician that ordered the test," the center stated in an October 6 letter. "This interpretation of law entirely negates the patient's clear, undisputed right to confer with his or her own physician pathologist."

Previously, the CAP and NYSSPATH called on the state to repeal the regulation. In February 2014, the federal Department of Health and Human Services (HHS) finalized a rule allowing patients to request and receive test results from the laboratory. The HHS also preempted state laws that impede patients directly receiving test results from the laboratory. The state Department of Health initially declined and requested clinical justification for rescinding the regulation. The CAP provided that justification in a letter on October 21, 2014. In addition, more than 100 New York physicians and 40 hospitals signed a document to strongly supporting the clinical evidence for rescinding the state rule.

The CAP and NYSSPATH have continued to urge the state to remove prohibitions on pathologists from answering patient’s questions about their laboratory and pathology test results. New York State health department officials publicly testified this summer that they regard such activity as an unlawful kickback to the ordering clinician.

New York City hospitals have joined the CAP and NYSSPATH to call for the repeal of the regulation prohibiting pathologists from conferring with patients on their laboratory test results. The New York City Health and Hospitals Corporation—an integrated healthcare system of hospitals, health centers, long-term care, nursing homes, and home care—sent a July 29 letter in support of the CAP's request to rescind the prohibition.

The CAP and NYSSPATH strongly states that pathologists are morally obligated to communicate with their patients and regulatory impediments to patient discussions with pathologists should be removed.

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The CAP will continue its advocacy with the CMS to ensure pathologists have opportunities to participate and receive incentives under the new Medicare value-based payment models in response to the agency's recently issued formal request for information on implementing the value-based payment sections of federal law that repealed the Medicare sustainable growth rate (SGR) formula in April.

The CMS announced its request on September 28. The agency seeks public comment on certain aspects of the law that repeals the SGR methodology and establishes a system for future reimbursement updates over several years. One of the key provisions of the law is the creation of the new Merit-based Incentive Payment System (MIPS) for eligible professionals and sunsets payment adjustments under the current Physician Quality Reporting System (PQRS), the Value-Based Payment Modifier (VBM), and Electronic Health Records (EHR) Incentive Program known as meaningful use. These programs will be consolidated to create the new MIPS beginning in 2017 and affecting payments in 2019.

The law includes a CAP provision that gives flexibility to the Health and Human Services Secretary to develop measures and activities for physicians, including pathologists, who do not have face-to-face interaction with patients.

In addition, the law promotes the development of alternative payment models (APMs) by providing incentive payments for eligible professionals participating in certain APMs beginning in 2019 and exempting them from MIPS. The law encourages the creation of additional physician-focused payment models, which would include models designed for specialist physicians.

The agency's request for information allows CAP and other interested parties shape CMS' regulatory plan to implement the law. The CAP will continue to publish more news, including the CAP’s comments to the CMS on this request, on MIPS and APMs in future editions of STATLINE.

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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 the2016 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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The CAP and New Hampshire Society of Pathologists (NHSP) expressed strong concerns over proposed insurance network adequacy rules which, if finalized, would allow network plans that do not include in-network providers of medically necessary pathology services.

The New Hampshire Insurance Department has drafted network adequacy rules and will hold hearings on the proposal over the next several months. The CAP and NHSP called on the state insurance department to write adequacy rules to ensure patients receive medically necessary pathology services under in-network coverage plans.

The CAP and NHSP detailed pathology concerns in a letter to the state insurance department on September 30. For example, the insurance department lists the taking of the Pap test specimen, but the actual performance of the Pap test, for purposes of network adequacy, is not a listed CPT code. Thus, the laboratory or pathologist performing the Pap test review is not considered a necessary in-network provider in the health plan.

For patients undergoing surgical procedures, or presenting with acute illness or cancer, the list of covered services is inadequate, the letter stated. For instance, network adequacy for anatomic pathology services which must be done promptly in a laboratory that is proximate, if not adjacent to the surgical site of service, is not considered in the draft network adequacy rules.

The CAP and NHSP will continue to engage with the state on the proposal. More information on this issue will be published in future editions of STATLINE.

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